The Issue Whether just cause exists for Petitioner to suspend Respondent’s employment as a teacher without pay for three days.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Broward County, Florida. The School Board hired Respondent on July 1, 2013. At all times material hereto, Respondent was employed by the School Board as a physical education teacher at Lauderhill 6-12 Middle School. At all times material to this case, Respondent’s employment with the School Board was governed by Florida law and the School Board’s policies. The conduct giving rise to the School Board’s proposed three-day suspension of Respondent occurred on April 18, 2018, during the 2017-2018 school year. On April 18, 2018, R.D., a female 12th grade student, entered the school gym, along with fellow high school students E.P. and J.B., in an effort to take pictures of Respondent and Coach Jessica Bentle ("Bentle") for the school’s yearbook. At the time, Respondent, Bentle, and another physical education teacher, Mr. Drummer, were supervising a physical education class, with dozens of students participating in various physical education activities in the gym. Neither R.D., E.P., nor J.B. were students in the physical education class. Rather, R.D., E.P., and J.B. entered the gym during Respondent’s and Bentle’s physical education class for the sole purpose of taking their pictures for the school’s yearbook. When R.D. went to the gym on April 18, 2018, she was aware that Respondent and Bentle did not want their pictures taken because they had declined previous requests to have their pictures taken. Nevertheless, on April 18, 2018, R.D. again requested to take pictures of Respondent and Bentle for the school’s yearbook, and both Respondent and Bentle declined. Despite Respondent’s repeated denials of requests not to have his picture taken, R.D. waited until Respondent was not looking and took his picture anyway with her cell phone. According to R.D., when Respondent realized she had taken his picture, he became angry and started walking toward her to confiscate her cell phone. R.D. did not want to give Respondent her cell phone because it contained the picture of him she knew she should not have taken. In an effort to avoid giving Respondent her cell phone, R.D. testified that she put the cell phone behind her back and started walking backwards away from him.1 R.D. maintains that at some point during Respondent’s pursuit of her, she turned away from Respondent and began to run. R.D. further maintains that Respondent caught up with her from behind while she was trying to run away from him, pulled on her shirt, and at the same time put his foot behind her right ankle, and, as she was going forward, tripped her and pulled her backwards which caused her to fall backward onto her back and the floor. 1 It is undisputed that there are circumstances when a teacher has the authority to confiscate a student’s cell phone, and it is a student’s responsibility to surrender the cell phone when asked by the teacher. R.D. further maintains that she could see Respondent’s foot behind her ankle before she fell backward onto her back and the floor. E.P. testified that, upon entering the gym, he sat down with a group of other students and took pictures. E.P. testified that he observed Respondent approach R.D. from approximately 10 to 15 feet away from her after he had taken the picture identified as P-016 within the School Board’s Exhibit 10. However, E.P. testified that his view of Respondent was blocked when he took the picture. At one point, E.P. further testified that as Respondent approached R.D., he observed R.D. walking backwards. However, at another point in his testimony, E.P. equivocated and testified he was "not sure."2 E.P. further testified that when Respondent was approximately three to five feet away from R.D., R.D. turned away from Respondent so that her back was to Respondent. E.P. further testified that from a distance of 40 to 50 feet, he observed Respondent and R.D. engage in a physical struggle over the cell phone for "one to two minutes," followed by Respondent’s use of a "martial art or military takedown" technique and push against R.D., which caused her to fall to the floor. E.P. further testified that although he does not remember seeing Respondent pull on R.D.’s shirt prior to her fall, he claims to have seen Respondent push R.D., while she was either facing Respondent or they were "side by side," at which time, Respondent used the "martial art or military takedown" technique to trip and cause R.D. to fall to the floor. 2 E.P. testified in this regard as follows: Q. Well, you have to answer my question. She may have been trying to leave, but was she leaving--was she going backwards? A. Do you mean walking backwards? Q. Yes, sir. A. I would say, yes. Q. You would say yes or you saw her walking backwards? A. Walking backwards. Q. You saw that? I’m not sure. (T., pp. 52-53). Respondent testified that when he first noticed R.D. attempting to take his picture, he took R.D.’s cell phone from her and reiterated to her that he did not want his picture taken. Moments later, Respondent returned the cell phone to R.D. After Respondent returned R.D.’s cell phone to her, she continued to try to photograph him. Respondent further testified that at this point, he began walking toward R.D., from a distance of approximately four or five feet between them. While he approached R.D., Respondent put his hand out and told R.D. to give her cell phone to him. According to Respondent, R.D. began to walk backwards away from him as he approached her. Respondent testified that as he was reaching for R.D.’s phone, R.D. tripped and fell backwards onto the gym floor. As she was falling, Respondent caught R.D. by her arm to break her fall and guided her to the floor. Once on the floor, Respondent retrieved R.D.’s cell phone and walked away from R.D. After walking away from R.D., Respondent then approached J.B. and took away his camera. Respondent then walked out of the gym and into the adjacent hallway, where he left both the cell phone and camera. Respondent vehemently denied pushing R.D., grabbing her shirt, putting his foot or leg behind R.D., and engaging in any physical contact which caused her to trip and fall to the floor.3 At hearing, the undersigned had the opportunity to observe the testimony and demeanor of Respondent, R.D., and E.P. The testimony of Respondent is credited and is more persuasive than the testimony of R.D. and E.P., which is not credited or persuasive. Notably, E.P.’s testimony differed from R.D.’s testimony in key respects. According to E.P., R.D. was facing or "side-to-side" with Respondent when he tripped her. However, R.D. testified that she was walking away from 3 Mr. Drummer approached R.D. while she was still lying on the floor and asked her twice if she was okay. Both times R.D. stated that she was fine, as Mr. Drummer helped her off the floor. After getting off the floor, R.D. retrieved her cell phone and J.B. retrieved his camera from the adjacent hallway, and R.D., E.P. and J.B. all walked back to Ms. Tobias’s class. Respondent when he tripped her. E.P. further testified that he observed Respondent push R.D., while R.D. testified Respondent pulled on her shirt. E.P. testified he did not see Respondent pull on R.D.’s shirt. Moreover, E.P. equivocated with respect to whether R.D. was walking backward or not. Had the incident occurred as testified about by E.P. or R.D., it is expected that at least one of the dozens of physical education students in the gym and another physical education teacher would have witnessed it. However, there is no indication that any of the dozens of physical education students or other teachers in the gym witnessed the incident as described by E.P. or R.D. Moreover, had the incident occurred as testified about by E.P. or R.D., it is expected that E.P. or another student in the gym would have taken at least one picture of R.D. and Respondent engaged in the purported physical struggle over the cell phone while they were both standing, or another picture depicting Respondent’s purported application of the "martial art or military takedown" technique. Instead, E.P. took only three pictures on the day of the incident that were offered into evidence at the hearing: P-014 within the School Board’s Exhibit 10; P-015 within the School Board’s Exhibit 10; and P016 within the School Board’s Exhibit 10. None of these pictures depict R.D. and Respondent engaged in a physical struggle over the cell phone before R.D. was on the ground--a physical struggle which E.P. described as lasting one to two minutes. And none of these pictures show Respondent tripping or otherwise engaging in physical contact with R.D. which caused her to fall to the floor. In sum, the persuasive and credible evidence adduced at hearing demonstrates that Respondent did not push, pull, trip, or otherwise make physical contact with R.D., which caused her to fall to the floor. Respondent’s conduct in the gym on April 18, 2018, with respect to R.D., does not constitute misconduct in office, incompetency, inefficiency, or a violation of School Board Policy 4008.4
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Broward County School Board, enter a final order rescinding the three-day suspension of Respondent, Antonio Dwight Beckham, and provide Respondent with back pay. DONE AND ENTERED this 9th day of March, 2020, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 2020. COPIES FURNISHED: Robert F. McKee, Esquire Robert F. McKee, P.A. 1718 East Seventh Avenue, Suite 301 Tampa, Florida 33675 (eServed) Douglas G. Griffin, Esquire School Board of Broward County 600 Southeast 3rd Avenue, 11th Floor Fort Lauderdale, Florida 33301 (eServed) Katherine A. Heffner, Esquire Robert F. McKee, P.A. 1718 East 7th Avenue, Suite 301 Tampa, Florida 33605 (eServed) Andrew Carrabis, Esquire Broward County School Board 600 Southeast 3rd Avenue, 11th Floor Fort Lauderdale, Florida 33301 (eServed) Robert W. Runcie, Superintendent Broward County School Board 600 Southeast Third Avenue, Tenth Floor Ft. Lauderdale, Florida 33301 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issue is whether, as the district school board alleges, an elementary school teacher choked one of her students in class——an allegation which, if proved, would give the district just cause to dismiss the teacher from her position.
Findings Of Fact The Broward County School Board ("School Board" or the "district"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Broward County Public School System. At all times relevant to this matter, Respondent Ava E. Williams ("Williams"), who holds an active Florida Educator Certificate, was employed as a third-grade teacher at Watkins Elementary School. She had taught at that school for the preceding 13 years and been an employee of the district since 1998. During the 2018-2019 school year, one of the students in Williams's class was a boy named P.P. After school on Friday, September 14, 2018, P.P. told his mother that, earlier during the day, Williams had choked him in class. P.P.'s mother and sister accompanied P.P. to school later that day, or the following Monday, to report this allegation to Assistant Principal Shereen Reynolds. P.P. claims that when he returned to class after the meeting with Ms. Reynolds, Williams called P.P. a "lying, fat pig" for turning her in. The undersigned rejects this allegation, which is uncorroborated, as not credible. Sometime later, on September 17, 2018, Ms. Reynolds told Williams about P.P.'s allegation that she (Williams) had choked P.P. the Friday before. The next day, Tuesday, Williams encountered her colleague, Shawony Russell, in the hallway. Williams——who was acquainted with, but not close to, Ms. Russell——knew that Ms. Russell had been P.P.'s teacher the previous school year, when P.P. was in the second grade. There is no dispute that Williams spoke briefly to Ms. Russell at this time. Ms. Russell asserts, however, that Williams admitted to her that she had choked P.P., whereas Williams adamantly denies having made such a confession. For reasons that will be discussed, the undersigned deems Williams's account of this conversation to be the more credible and thus rejects Ms. Russell's testimony to the contrary. After conducting an investigation, the district determined that Williams was guilty of having choked P.P. while screaming at him, "Do you hear me?"——or words to that effect. On this basis, the district seeks to terminate Williams's employment. Although the district advances several theories in support of its intended decision, Williams concedes that the allegations against her, if proved, would afford the district just cause for dismissal. Her defense is that the allegations are untrue. At hearing, only two witnesses to the alleged incident testified, namely Williams and P.P. Their respective accounts differ in material respects. Williams was by far the more credible witness, and her testimony is accepted over P.P.'s. Although, as the fact-finder, the undersigned is not obligated to explain why he has found one witness to be more believable than another, in this instance a few comments are in order, given that the School Board largely grounded its case on P.P.'s testimony. To begin——and this is undisputed——P.P. is a liar. That is a harsh word, "liar," one that the undersigned does not use lightly, especially with reference to a child witness. But here it is an accurate description. P.P. admitted under oath that he tells lies quite often, including to teachers. He has lied to get other students in trouble, among other things. This, alone, was enough to make the undersigned hesitate to take P.P.'s word about a charge that, if true, would cost a person her job——and might even end that person's professional career. Beyond that, P.P.'s description of the incident makes little sense and is difficult to imagine. P.P. claims that on the morning in question, Williams lined up the students in her class to walk with them to the cafeteria for lunch, except for P.P., who stayed behind because Williams, who thought P.P. had thrown a chair, was walking quickly towards him, after telling the other students to go. According to P.P., after everyone else had left, Williams stood in front of him and touched his throat with her open hand for one second, never squeezing, pushing, or making any movement at all——nor causing any pain—— before withdrawing. The undersigned does not believe that this is likely what happened. Williams's account, in contrast, is easy both to follow and to picture occurring. She recalls telling the children to clean up for lunch that morning, which all of them proceeded to do, except for P.P., who just sat at his desk and refused to move. Another student said something to P.P. that made P.P. mad, and he pushed a chair at the student. At this, Williams walked over to P.P. and asked him to get in line for lunch, but P.P. would not budge. Without touching P.P., Williams raised her voice and said to him loudly, "Do you hear me now?" She instructed the other students to leave for lunch and began walking towards the door herself. P.P. followed Williams and then exited the classroom ahead of his teacher, who had waited at the door for him. At this point, the incident was over. The undersigned credits Williams's testimony and finds that the incident likely took place as described in this paragraph. Apart from the eyewitness testimony, the only other significant evidence that the district offered was Williams's alleged admission. As mentioned above, P.P.'s second-grade teacher, Ms. Russell, testified that, during a conversation in the hallway on September 18, 2019, Williams confided to Ms. Russell that she had "choked" P.P. The undersigned does not believe that Ms. Russell's testimony is historically accurate in this regard. Credibility determinations such as this are the undersigned's prerogative to make without elaboration, but, as promised, a brief explanation will be given. There are three main reasons why the undersigned has found it unlikely that Williams said to Ms. Russell, "I choked him." First, Ms. Russell was not a confidant of Williams. Ms. Russell acknowledged this, saying she was surprised that Williams would tell her such a thing and agreeing that it "[m]ade no sense." Indeed, it makes so little sense that Ms. Russell's description of the confession strains credulity. Why on earth would Williams tell someone whom she had no particular reason to trust that she had choked a student——a gratuitous confession that could have ruinous consequences, including potentially a criminal prosecution? Stranger things happen, of course, but the odds are against an unsolicited, unexpected admission of this nature. Second, Ms. Russell claims that Williams said she had "choked" P.P. This is the word P.P. used in making his allegation against Williams, and it is the term that the district has used in charging and prosecuting Williams. Yet, if P.P.'s testimony were true (which it probably isn't), the contact that Williams made with P.P.'s throat could not reasonably be described as "choking." The term "choke" in this context obviously denotes the application of pressure around the victim's neck or throat to impede breathing and blood flow. What P.P. described, in contrast, was a brief (one second), painless touch without any constriction about his neck whatsoever. Thus, if Williams had touched P.P. (she probably didn't), and if, further, she had confessed as much to Ms. Russell (which is unlikely), it is highly improbable that Williams would have admitted doing something far worse than that which P.P. claims happened——which was, again, that Williams merely brushed the boy's neck with the palm of her hand.1/ Finally, Ms. Russell did not act like Williams had admitted having attacked a student. Imagine that you are an elementary school teacher and that one day, out of the blue, a colleague of yours, someone whom you do not know well, tells you that she has choked a third-grade student. Wouldn't you want to know what had happened? Ms. Russell didn't. More important, wouldn't you feel the need to report this potential child abuse to appropriate authorities for investigation, right away? Ms. Russell didn't. Ms. Russell did not take any immediate action because "[w]e were heading out to recess. I like to go outside and get my sun and just relax." Therefore, Ms. Russell testified, "I didn't call anyone. I didn't do anything. I was going back outside to relax." In fact, Ms. Russell never reported Williams's alleged admission to the school administration or the Department of Children and Families, even though she knew that, as a teacher, she had a legal duty to report child abuse upon becoming aware of reasonable cause to suspect that such has occurred. See § 39.201, Fla. Stat. Promptly going outside to relax in the sun and forget the matter is not the response one reasonably would expect from a teacher whose co-worker has just confessed to choking a student. Williams's description of the hallway encounter between her and Ms. Russell rings true. As stated, Williams knew that Ms. Russell had taught P.P., and she wanted to find out what Ms. Russell's experience with P.P. had been like. Seeing Ms. Russell in the hallway, Williams took the opportunity to inquire. There is no dispute that Ms. Russell told Williams that P.P. performed below grade level academically, had behavioral issues, and lied a lot.2/ Williams recalls telling Ms. Russell that, indeed, P.P. is a liar "because he said I choked him." The undersigned finds that the alleged "admission" is nothing but a truncated version of this statement, in which Williams described P.P.'s charge, not her own conduct. Determinations of Ultimate Fact The district has failed to prove its allegations against Williams by a preponderance of the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order exonerating Ava E. Williams of all charges brought against her in this proceeding, reinstating Williams to her pre-dismissal position, and awarding Williams back salary as required under section 1012.33(6)(a). DONE AND ENTERED this 14th day of January, 2020, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 2020.
The Issue The issues to be determined are whether Respondent violated section 1012.315, Florida Statutes; Florida Administrative Code Rules 6A-5.056 and 6A-10.081(1) through (5); and School Board Policies 6.30(2), (3)(b), and 6.301(2), as alleged in the Statement of Charges and Petition for Termination (Petition); and, if so, what penalty should be imposed for these violations.
Findings Of Fact Petitioner, the School Board, is the constitutional entity authorized to operate, control, and supervise the St. Lucie County School System. The authority to supervise the school system includes the hiring, discipline, and termination of employees within the school district. Respondent was employed by the School Board as a teacher at Fort Pierce Westwood High School. He worked for the School Board since at least September 2007, albeit originally at a different school. Respondent signed a professional services contract with the School Board on or about February 12, 2010. He is covered by the collective bargaining agreement between the School Board and the St. Lucie County Classroom Teachers’ Association (CBA), as stated in Article I, section A of the CBA. On October 28, 2011, Respondent was advised of a meeting to take place on November 1, 2011, regarding a School Board investigation into alleged inappropriate contact with students. There is no indication in the record whether Respondent attended the meeting or gave any information. There is also no indication whether the investigation referenced in the October 28, 2011, letter is the same investigation giving rise to these proceedings. On March 3, 2014, Maurice Bonner, the Director of Personnel for the School Board, provided to Respondent a Notice of Investigation and Temporary Duty Assignment (Notice). The Notice advised that Respondent was being investigated regarding allegations of inappropriate contact with students, and that he was being placed on temporary duty assignment as assigned by the Personnel Office. Respondent signed the letter acknowledging its receipt on March 14, 2014. On April 1, 2014, Genelle Zoratti Yost, Superintendent of the School Board, wrote to Respondent with a reference line entitled Notice of Intent to Terminate Employment. The letter states, in pertinent part: On March 21, 2014 you were arrested for violating Section 800.04(6)(a)(b), Florida Statutes, “Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age.”[1/] Pursuant to the Arrest Warrant issued on March 21, 2014 you are not to be within 100 feet of Fort Pierce Westwood High School or Harbor Branch. As a result, you are unavailable to work on campus so your temporary duty assignment outlined in the notice of Temporary Duty Assignment provided to you on March 3, 2014 shall remain in full force and effect until further notice. Furthermore, you have not reported your arrest to the Superintendent within 48 hours as required. . . . Based on the information available to the School District there is sufficient information to charge you with violating the following [list of State Board of Education rule violations and School Board Policy violations]. . . . The April 1, 2014, letter notified Respondent that the superintendent would be recommending to the School Board that it terminate his employment, and provided him with notice of how he could request a hearing on the proposed termination. The letter also advised that, should he seek a hearing, the superintendent would recommend that he be suspended without pay pending the outcome of the hearing. Respondent signed the letter acknowledging receipt of it on April 3, 2014. Respondent requested a hearing with respect to his termination and was notified by letter dated April 23, 2014, that he was suspended without pay. Respondent’s request for hearing was forwarded to the Division, and the case was docketed as Case No. 14-1978. Because of the pendency of the criminal proceedings against Respondent, at the request of the parties, on September 30, 2014, Administrative Law Judge Darren Schwartz entered an Order Closing File and Relinquishing Jurisdiction, which closed the file with leave to re-open. On a date that is not substantiated in this record,2/ Respondent was tried by jury and convicted of seven counts of lewd or lascivious conduct in violation of section 800.04(6)(a) and (b) and nine counts of lewd and lascivious molestation in violation of section 800.04(5)(c)2. All 16 counts were second- degree felonies. On July 29, 2016, counsel for the School Board wrote to then-counsel for Respondent, advising him that in light of the jury verdict, notice was being given that on August 9, 2016, the superintendent would be recommending Respondent’s termination from employment. The letter also provided Respondent notice of his rights to a hearing in accordance with section 1012.33(6)(a). Counsel for Respondent notified the superintendent that Respondent continued to request a hearing in accordance with the CBA. On October 31, 2016, a Judgment and Sentence was entered in the case of State of Florida v. Dan Allen Hussan, Case No. 562014CF000857A (19th Judicial Circuit in and for St. Lucie County), adjudicating Respondent guilty of all 16 counts. Respondent was sentenced to 15 concurrent sentences of life in prison, with credit for 103 days served prior to sentencing. With respect to Count XVI, Respondent was sentenced to 15 years of sexual offender probation, consecutive to the sentence set forth in Count I. On November 7, 2016, Judge James McCann entered, nunc pro tunc to October 31, 2016, an Order of Sex Offender Probation with respect to Count XVI. The Order of Sex Offender Probation adjudicated Respondent guilty and set the terms for sexual offender probation following the life sentence. Respondent remains incarcerated. He also maintains that he is not guilty of the underlying charges. Petitioner contends that Respondent did not self-report his arrest as required by School Board policy. However, no competent, substantial evidence was presented to demonstrate Respondent’s failure to report. While a notice provided to him regarding this allegation was admitted into evidence, the accusation, standing alone, does not amount to evidence that the accusation is true.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Lucie County School Board enter a final order terminating Respondent’s employment based on a finding of just cause. DONE AND ENTERED this 25th day of April, 2017, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 2017.
The Issue The nature of the instant controversy is whether Petitioner has just cause to terminate Respondent under section 1012.33, Florida Statutes (2015),1/ and whether Respondent's acts and/or omissions disqualify him from being employed in the Indian River County School District ("School District").
Findings Of Fact Based on the evidence presented at the final hearing, the undersigned makes the following findings of relevant and material facts: Respondent was employed by the School Board as a classroom teacher. As a teacher, Respondent was required to abide by all Florida Statutes which pertain to teachers, the Code of Ethics and Principles of Professional Conduct for the Education Profession in Florida, and all School Board policies. Testimony of William Fritz William Fritz, assistant superintendent for Human Resources and Risk Management, testified for the School Board. One of his primary duties is to conduct employee disciplinary investigations for the School Board. He is considered the "point person" for such matters. Fritz was informed by the fingerprint specialist in his office that Respondent had been arrested for felony DWLS. Subsequently, the same person informed him that Respondent had been convicted of the felony DWLS on October 6, 2015. The felony designation for Respondent's DWLS was based on this being his third or subsequent DWLS offense. The Judgment of Conviction dated October 6, 2015, designated the crime as "Driving While License Revoked-Permanently Revoked." Pet.'s Ex. F. After learning of Respondent's felony conviction, Fritz conducted an internal investigation. He had an informal discussion with Respondent to discuss the matter. This occurred in November 2015. When they met, Respondent told Fritz that he felt he did not need to self-report the conviction because the School District was automatically notified by the court.2/ Respondent explained to Fritz that there were some extenuating circumstances for the car trip that day involving a visit to a very ill friend. As a follow-up to the meeting, Fritz reviewed the School Board policies pertaining to discipline. He concluded that the situation likely warranted termination. He requested to meet with Respondent again, but his invitation was declined by Respondent. During the course of his investigation and review of Respondent's personnel file, Fritz concluded that Respondent had been put on employment probation by EPC in 2012 and that the probation was still active when the 2014 arrest and subsequent conviction in 2015 occurred. The EPC order proscribed certain conduct by Respondent during probation. The EPC order provided that Respondent "violate no law and shall fully comply with all District School Board policies, school rules, and State Board of Education rules." Fritz concluded that the DWLS conviction violated that provision of the EPC order, as well as certain School Board employee rules and policies. Notably, Fritz concluded that Respondent's 2015 felony DWLS conviction was a Category 3 violation of School Board Policy 3121.01. Convictions for Category 3 offenses, by definition, expressly prevented the hiring or retention of an employee "under any circumstances." Pet.'s Ex. K.3/ After reviewing all of the relevant documents and concluding his investigation, Fritz met with the School Board superintendent and recommended that Respondent be terminated. In arriving at that recommendation, Fritz took into account the mitigating factors explained by Respondent during their first meeting, namely needing to visit a sick friend. Fritz noted during his investigation that another final order of EPC had also been entered in 2007, disciplining Respondent for a conviction for driving under the influence ("DUI"). Fritz testified that there had been a termination of another teacher in the School District for a felony offense. The termination occurred in 2013 and was referred to DOAH, which recommended that termination was appropriate. There was no suggestion or testimony during the course of Fritz's testimony that the recommendation to terminate Respondent was related in any manner to problems with Respondent's job performance or other conduct on the job. Rather, the felony conviction violated School Board policy requiring termination and also constituted violations of the EPC order and resulting EPC probation. On cross-examination, Fritz acknowledged that the most recent felony conviction in October 2015 had not yet been addressed or ruled on by EPC insofar as Respondent's teaching certificate was concerned. Fritz further testified that a collective bargaining agreement ("CBA") exists which governs the discipline of teachers, including Respondent. Article 5.1, section (A) of the CBA, states as follows: Discipline of an MBU shall be progressive. Progression shall be as follows: documented verbal warning presented in a conference with the MBU, a letter of reprimand, suspension, termination. Serious first offenses may result in an immediate, strong consequence up to and including termination. Resp.'s Ex. 18. Fritz testified that Respondent's felony conviction for DWLS was a "serious first offense," which gave the School District the discretion to move directly to termination under Article 5.1, section (A) of the CBA.4/ When questioned by Respondent as to whether or not a felony conviction for a worthless check offense, for instance, could also result in a termination, Fritz pointed out Petitioner's Exhibit K, which specifically designated worthless check convictions as a different and separate "Category 5" offense. Category 5 offenses, by express definition and unlike Category 3 offenses, afforded the School District considerable leeway on discipline, on a case-by-case basis. Conversely, Fritz testified that a felony conviction for DWLS fell under a different category, "Category 3," and was considered significant and serious enough to warrant termination of the employee. Testimony of Brian Krystoforski Respondent started teaching in 1984 and is in his 24th year of teaching in the state of Florida. Respondent testified, and emphasized throughout the proceeding, that the School District was aware of a prior criminal traffic conviction and EPC sanctions in 2012 but, nonetheless, permitted Respondent to continue to teach in the School District.5/ Respondent testified that the 2012 EPC final order related, as well, to a prior DWLS felony conviction. Respondent testified that, on the date he was arrested for the 2015 DWLS conviction, he was driving to visit a good friend who had serious medical issues and was very depressed. However, he acknowledges his trip was a "bad decision." He characterized his plea of no contest on October 6, 2015, as more of a plea of convenience believing that his explanation for driving that day would mitigate the effect of the criminal plea and conviction before the circuit court judge. The undersigned has considered the collection of exhibits offered by the parties and admitted into evidence. The undersigned has also reviewed the plea colloquy from October 2015 before the circuit court judge who took Respondent's felony plea to DWLS.6/ Respondent emphasized that his felony conviction for DWLS should be evaluated using several mitigating factors found in Florida Administrative Code Rule 6B–11.007, Disciplinary Guidelines.7/ Insofar as the severity of this conviction is concerned, Respondent felt that he was just guilty of using "bad judgment." Furthermore, Respondent argues that he is not a danger to the public under one of the mitigating factors outlined in the Florida Administrative Code. Another mitigating factor Respondent felt should be considered is that he has been an educator for a long period of time. He felt that his commitment and participation as the football defensive coordinator at Vero Beach High School should also be considered a mitigating factor. Respondent felt that there had been no actual damage, physical or otherwise, caused by his driving while license suspended. Furthermore, in 24 years of teaching, he has never been considered for termination for any other conduct or offenses. Finally, he argues that the effect of termination on his livelihood and ability to earn a living warrants consideration. On cross-examination, the evidence revealed that Respondent had a conviction for DUI in 1988, a conviction for DUI in 1990, and a conviction for a DUI in 2002. In 2004, adjudication was withheld for driving while intoxicated on a revoked license. Respondent also conceded that EPC warned him that a permanent revocation of his educator certificate could occur under certain circumstances, particularly if the educator's certificate had been sanctioned by EPC on two or more previous occasions. Respondent testified that he had, indeed, been sanctioned by EPC on two previous occasions prior to this 2015 conviction for DWLS. There is also evidence to show that Respondent has been characterized as a "highly effective" teacher during recent evaluations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Indian River County School Board implement its preliminary decision to terminate the employment of Respondent. DONE AND ENTERED this 2nd day of May, 2016, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 2016.
