The Issue The issue in this case is whether there is just cause to terminate Respondent’s employment.
Findings Of Fact Mr. Overhoff began his employment with the School District on October 20, 2006, as a roofer in the School District’s maintenance department. As a roofer, Mr. Overhoff’s job duties included maintaining and repairing roofs of the School District’s schools and ancillary buildings. His duties also included procuring roofing materials needed on a job, when those materials were not available at the maintenance department’s central warehouse. The School District hired private contracting companies to do major roof repair, and Mr. Overhoff’s duties included meeting with the contractors to discuss the contract work being performed. At all times relevant to this case, Mr. Overhoff was a member of the Support Personnel Association of Lee County (SPALC). During June 27, 2008, through July 11, 2008, Mr. Overhoff resided at 4613 Vinsetta Avenue, North Fort Myers, Florida. Mr. Overhoff’s work hours were from 7:00 a.m. to 3:30 p.m. with a 30-minute unpaid lunch break and a 15-minute paid break in the morning and a 15-minute paid break in the afternoon. Mr. Overhoff reported to the School District’s maintenance office each morning to receive his work assignments for the day. Each employee was assigned more than eight hours of work to ensure that each employee would have sufficient work for the entire day. After receiving his work assignments, Mr. Overhoff gathered the materials he needed for his jobs that day and traveled to the various locations in the county to work on the School District’s buildings. He was expected to return to the School District’s maintenance office by 3:00 p.m. each day to complete the paper work for the roofing work that had been performed that day and to conference with his supervisors concerning work assignments. Mr. Overhoff was assigned a white pick-up truck owned by the School District and designated as M404. Mr. Overhoff was to use this vehicle to go to his work assignments pursuant to The School Board of Lee County Policy 7.04, which provides that employees who drive School District vehicles “shall [u]se the vehicle strictly for approved District business.” Sometime in April 2008, the School District received a call from a neighbor of Mr. Overhoff, who reported that a School District vehicle was parked in Mr. Overhoff’s driveway during work hours. Donald Easterly, the director of Maintenance Services for the School District, met with Mr. Overhoff in April 2008 to discuss the telephone call. Mr. Easterly made Mr. Overhoff aware that the use of a School District vehicle for personal use was prohibited and that personal business could not be conducted during work hours unless it was during a break. The School Board of Lee County Policy 5.33 prohibits the transaction of personal business on school time and provides: The following rules, regulations and guidelines are to be used to prohibit personal business on school time. No employee of the School District may conduct personal business on school time except for emergencies approved by the principal or Superintendent. No School District equipment or supplies shall be used to conduct personal business or any other activity not connected with the School District. During the time relevant to this case, employees in the maintenance department were allowed to stop at restaurants, convenience stores, and fast food establishments for their lunch and morning and afternoon breaks, if the stops were made while the employees were in transit to a job location. It had also been the practice to allow employees to stop by their bank, if the time was counted as break time, and the stop was while in transit to a job location. It was not permissible for an employee to use a School District vehicle to go to his home unless the employee had permission from his supervisor. In May 2008, the School District began installing Global Positioning Systems (GPS) on some of the vehicles used in the maintenance department. The selection of the vehicles for installation of a GPS was made at random. On June 2, 2008, a GPS was installed on the vehicle M404, which was driven by Mr. Overhoff. The superintendent of the School District has alleged in the Petition for Termination of Employment that Mr. Overhoff used a School District vehicle for his personal use on June 27, June 30, July 1, July 2, July 7, July 8, July 9, July 10, and July 11, 2008. Each day will be discussed individually below. On each day in question, Mr. Overhoff was driving the School District vehicle identified as M404. The locations to which the vehicle traveled and the times of arrivals and departures are based on the information captured by the GPS system installed in vehicle M404 during the relevant time periods. There has been no dispute concerning the accuracy of the information. At the end of each work day, Mr. Overhoff and other employees in the maintenance department were required to complete a daily labor sheet, which identified the work that was performed by work order number, task number, and description of the work; identified the location where the work was performed; and listed the amount of travel time and work hours for each work order. The time was to be listed in 15-minute increments. All locations where work had been performed were to be listed on the daily labor sheet. However, if an employee had to return to the maintenance department during the day, the time spent there was not usually recorded on the daily labor sheet. Mr. Overhoff had never been given any formal instruction on how to complete the daily labor sheet. He understood that the number of hours for travel and work should equal eight hours. His daily labor sheets did not always accurately reflect the locations at which Mr. Overhoff had stopped during the workday and did not always accurately reflect the time that he spent working at School District facilities. Prior to August 2008, the employees in the maintenance department were not required to list their break times on the daily labor sheets, and there was no requirement to list every stop made during the day. After August 2008, the maintenance department employees were required to accurately account for all their time during the day, including break times and stops at the maintenance department on Canal Street. June 27, 2008 On June 27, 2008, vehicle M404 was turned on at 6:29:07 a.m. at the maintenance department located at Canal Street. At 8:01:17 a.m., the vehicle entered the 7-11 store located at Southland Court, and, at 8:12:57 a.m., the vehicle departed the 7-11 store. At 8:31:17 a.m., the vehicle arrived at San Carlos Park Elementary School and remained there until it left at 9:19:27 a.m. The vehicle left San Carlos Park Elementary School and went to a Hess Station/Dunkin Donuts business, where the vehicle remained from 9:22:07 a.m. to 9:39:57 a.m. After leaving the Hess Station, the vehicle arrived at Lexington Middle School at 9:57:57 a.m. The vehicle departed the school at 10:16:17 a.m. and arrived at the Canal Street maintenance department at 10:40 a.m. The vehicle remained at the maintenance department until 11:01 a.m. The next stop for the vehicle was at 11:19:37 a.m. at Mr. Overhoff’s home, where the vehicle remained until 11:28:17 a.m. The vehicle left Mr. Overhoff’s home and went to One Price Optical in Cape Coral, Florida, where it arrived at 11:34:07 a.m. and left at 11:37:07 a.m. At 11:43:47 a.m., the vehicle arrived at Bank of America, and, at 11:44:17 a.m., the vehicle departed from the bank. The vehicle returned to Mr. Overhoff’s home at 11:51:58 a.m. and remained there until 11:53:17 a.m., when it departed for One Price Optical. The vehicle arrived at One Price Optical at 12:00:17 p.m. and left at 12:01:27 p.m. heading for Tanglewood/Riverside Elementary School, where it arrived at 12:22:37 p.m. and left at 12:37:47 p.m. The next stop the vehicle made was at another 7-ll store, where it arrived at 12:53:27 p.m. and left at l:01:57 p.m. The vehicle traveled past Mr. Overhoff’s house and arrived at One Price Optical at 1:18:17 p.m. and remained there until 1:33:47 p.m. From One Price Optical the vehicle proceeded to North Fort Myers High School, where it arrived at 1:38:37 p.m. and left at 1:52:17 p.m. From North Ft. Myers High School, the vehicle proceeded to the Professional Building on Dixie Parkway, arriving at 2:01:37 p.m. The vehicle remained stationary for 16 minutes and 40 seconds, circled the block around the Professional Building, and left at 2:21:37 p.m. From the Professional Building, the vehicle proceeded to Dunbar High School, arriving at 2:30:27 p.m. and leaving at 2:43:47 p.m. From Dunbar High School, the vehicle proceeded to the maintenance department at Canal Street, where it arrived at 2:53:47 p.m. Mr. Overhoff spent a total of 29.5 minutes in the morning at a convenience store and a service station. He spent from 11:01 a.m. to 12:01 p.m. on personal business, including stops at his home, a bank, and an optical business. The total time for his personal business was one hour. He left the maintenance department at 11:01 a.m. and could have taken his personal vehicle to run his personal errands and gone back to the maintenance department when he was finished. The locations where he conducted his personal business were northwest of the maintenance department. The next work assignment after he completed his personal business was located southwest of the maintenance department, which means that the errands that he was running were not on the way to a work assignment. In the afternoon, Mr. Overhoff stopped at another 7-11 store for 8.5 minutes, took a circuitous route by his home, and went back to One Price Optical. The amount of time that elapsed from the time he reached the 7-11 until he left One Price Optical was over 40 minutes. His home and One Price Optical were not located on a route that would have taken him logically to his next work assignment. Mr. Overhoff started his workday at approximately 6:30 a.m. Subtracting Mr. Overhoff’s lunch time and break times, Mr. Overhoff used .6 hours of work time above his allotted break times for his personal business. No evidence was presented to show that Mr. Overhoff took annual or sick leave for this time. Based on his daily labor sheets, Mr. Overhoff recorded eight hours of travel and work time for June 27, 2008. On June 27, 2008, a lens fell out of Mr. Overhoff’s glasses. Mr. Overhoff had permission from his supervisor, Michael Hooks, to go to an optical business to have the lens replaced. Mr. Hooks did not give Mr. Overhoff permission to stop by a Bank of America to conduct his banking business. The stop at the bank was not made while in transit to another job. Mr. Hooks did not give Mr. Overhoff permission to make multiple trips to One Price Optical. Mr. Hook had given Mr. Overhoff permission to stop by his house one time to check on Mr. Overhoff’s son. According to Mr. Overhoff, June 27, 2008, was the date that Mr. Hook had given him permission to stop to check on his son at home. Mr. Hook was not certain of the date that he gave such permission, but it was for one time only. June 30, 2008 Vehicle M404 left the maintenance department at Canal Street at 7:29:27 a.m. and arrived at Dunbar High School at 7:38:17 a.m. The vehicle left Dunbar High School at 7:38:17 a.m. and arrived at Kuhlman Concrete, LLC, at 7:40 a.m. The vehicle left Kuhlman Concrete, LLC, at 7:41 a.m. and arrived at North Fort Myers High School at 7:55:37 a.m. The vehicle left the high school at 8:50:27 a.m. and proceeded to Villas Elementary School, arriving at 9:02:47 a.m. and leaving at 9:31:57 a.m. The vehicle arrived at the James Adams Building at 9:45:37 a.m. and departed at 9:52:57 a.m., proceeding to a Hess Gas Station, where it arrived at 10:15:37 a.m. and left at 10:18:57 a.m. The next stop was at the North Fort Myers Academy of the Arts, where the vehicle arrived at 10:26:47 a.m. and departed at 10:41:17 a.m. The vehicle arrived at Diplomat Middle School at 10:59:27 a.m. and left at 11:35:37 a.m. From the Diplomat Middle School, the vehicle arrived at Mr. Overhoff’s house at 11:46:47 a.m., departed at 11:56:07 a.m., and arrived at North Fort Myers High School at 12:00:57 p.m. The vehicle did not stop at the school, but drove through the school grounds and left at 12:02:57 p.m. The vehicle turned in at Kentucky Fried Chicken at 12:21:57 p.m. and exited at 12:22:37 p.m. The vehicle proceeded to McDonald’s, arriving at 12:36:57 p.m. and leaving at 12:40:27 p.m. At 12:52:17 p.m., the vehicle arrived at Three Oaks Middle School and departed at 1:29:57 p.m. From the middle school, the vehicle proceeded to a Bank of America, arriving at 1:35:37 p.m. and leaving at 1:42:17 p.m. After leaving the bank, the vehicle went to South Fort Myers High School, arriving at 1:54:47 p.m. and leaving at 2:04 p.m. The next stop was Ray V. Pottorf Elementary School, where the vehicle arrived at 2:13:47 p.m. and left at 2:29:27 p.m. The vehicle proceeded to High Tech Central/New Directions, arrived at 2:37:57 p.m., drove through the campus, and exited at 2:44:57 p.m. At 2:54:07 p.m., the vehicle arrived at the maintenance department at Canal Street. Mr. Overhoff stopped at a convenience store for three minutes mid-morning. At lunch time, he stopped at his home for nine minutes. The stop at his home was not authorized and was not in transit to another job location. The travel time to and from his home was eight minutes. He turned into a Kentucky Fried Chicken restaurant for 40 seconds. According to Mr. Overhoff, he went into the Kentucky Fried Chicken parking lot to take a telephone call or open a work folder. The next stop is a McDonald’s fast food place where he remains for 3.5 minutes. According to Mr. Overhoff, this is another stop to do paperwork. In light of his earlier stop at Kentucky Fried Chicken, Mr. Overhoff’s testimony is not credited. Additionally, Mr. Overhoff’s general assertions that his many stops at convenience stores were to do paperwork is not credible. He was given 30 minutes at the end of each work day for the specific purpose of completing his paperwork. The many inaccuracies in his paperwork do not support his assertion that he was making stops to keep his paperwork accurate and in order. Later in the afternoon, he made a six-minute stop at Bank of America. The side trip to the bank did not appear to be on a logical route to his next work assignment. Thus, four minutes’ travel time is assessed for the bank trip. The total time for his personal business was 33.5 minutes. July 1, 2008 On July 1, 2008, vehicle M404 left the maintenance department on Canal Street at 7:03:37 a.m. and arrived at a gas station/convenience store off Metro Parkway at 7:10 a.m. Leaving the convenience store at 7:14 a.m., the vehicle proceeded to Three Oaks Middle School, arriving at Three Oaks Middle School at 7:39 a.m. and leaving at 8:16 a.m. From the middle school, the vehicle traveled to Ray V. Pottorf Elementary School arriving at 8:36 a.m. and leaving at 8:41 a.m. The vehicle returned to the maintenance department at 8:50 a.m. and remained there until 9:16 a.m. The vehicle proceeded to Bonita Middle School, arrived there at 9:52 a.m., and left at 10:22 a.m. The next stop was Orange River Elementary School, where the vehicle arrived at 11:01:27 a.m. and departed at 11:05:27 a.m. At 11:12 a.m., the vehicle stopped at a restaurant/convenience store and remained there until 11:33 a.m. The vehicle arrived back at the maintenance department at 11:41 a.m. and departed at 12:20 p.m. The vehicle arrived at Trafalgar Middle School at 12:55 p.m. and departed at 1:18 p.m. The next stop was Gulf Middle School, where the vehicle arrived at 1:27 p.m. and left at 1:40 p.m. At 1:48:57 p.m., the vehicle arrived at Bank of America off Skyline Boulevard. The vehicle left the bank at 1:56:07 p.m. From the bank at Skyline Boulevard, the vehicle proceeded to the Bank of America at Viscaya Parkway, arriving at 2:09 p.m. and leaving at 2:19 p.m. At 2:23:07 p.m., the vehicle arrived at One Price Optical. The vehicle left One Price Optical at 2:27:07 p.m. The next stop was the James Adams Building, where the vehicle arrived at 2:44 p.m. and left at 2:46 p.m. At 3:02:57 p.m., the vehicle was parked at the maintenance department. The stop at the convenience store in the morning consumed ten minutes of Mr. Overhoff’s morning break time. The lunch at a restaurant took 21 minutes. In the afternoon, Mr. Overhoff stopped at two banks for a total of 17 minutes. Another stop was made at One Price Optical for four minutes. The stop at One Price Optical was not authorized and, based on the map contained in Petitioner’s Exhibit 7, the trip was not on the route back to the next job location. Thus, the travel time from the last bank stop, four minutes, should be added to the time. The time expended on personal business was 56 minutes. July 2, 2008 On July 2, 2008, vehicle M404 left the maintenance department at 7:04 a.m. and arrived at the James Adams Building at 7:13 a.m. The vehicle left the James Adams Building at 7:56 a.m. and arrived back at the maintenance department at 8:05 a.m. The vehicle left the maintenance department at 8:27 a.m. and arrived at the 7-11 store off Metro Parkway at 8:33 a.m. The vehicle left the 7-11 at 8:37 a.m. and returned to the James Adams Building at 8:50 a.m. At 8:57 a.m., the vehicle left the James Adams Building and returned to the maintenance department at 9:04 a.m., where it remains until 9:26 a.m. The vehicle arrived at Fort Myers High School at 9:41 a.m. and left at 9:56 a.m. Arriving at Orange River Elementary at 10:18 a.m., the vehicle remained until 11:03 a.m. when it proceeded to the Taco Bell off Palm Beach Boulevard. The vehicle reached Taco Bell at 11:05 a.m. and left at 11:38 a.m. At 11:47 a.m., the vehicle arrived at Edgewood Academy, where it left at 11:50 a.m. The vehicle arrived at Dunbar High School at 11:59 a.m. and departed at 12:05 p.m. From Dunbar High School, the vehicle proceeded to Mr. Overhoff’s house, where the vehicle remained from 12:27:17 p.m. to 12:30:07 p.m. At 12:49 p.m., the vehicle arrived at the James Adams Building, where it remained until 12:57 p.m. From the James Adams Building, the vehicle proceeded to a 7-11 store located off Winkler and Colonial Boulevard. The vehicle arrived at the 7-11 at 1:09 p.m. and departed at 1:11 p.m. At 1:17 p.m., the vehicle arrived at Lowe’s Shopping Center off Colonial Boulevard and Ben C. Pratt Parkway. The vehicle left the shopping center at 1:27 p.m. The next stop was Colonial Elementary, where the vehicle arrived at 1:34 p.m. and departed at 1:36 p.m. The vehicle returned to the maintenance department on Canal Street at 1:47 p.m. and remained there. In the morning, Mr. Overhoff went to a convenience store, which was not in route to a job location. The time spent at the convenience store was four minutes and the travel time to and from the convenience store from the maintenance department was 12 minutes for a total of 16 minutes for his morning break. Mr. Overhoff had lunch at Taco Bell for 33 minutes. In the afternoon, Mr. Overhoff stopped at his home for almost three minutes; however, the stop at his home was not on route to any job location. Thus, the travel time to his home and back to the next job should be included in any break time. The travel time for the trip home was 41 minutes, and the total time taken for his trip home was 44 minutes. The stop at his home was not authorized. Mr. Overhoff’s excuse for the stop at his home was to get boots and use the bathroom. His testimony is not credited. Mr. Overhoff testified that he needed his boots to clean off water, but the job in which he had been cleaning off water was before he stopped at his home. In the afternoon, Mr. Overhoff stopped at a convenience store for two minutes and went to Lowe’s for ten minutes. The stop at Lowe’s was not authorized. The stops at the convenience store and at Lowe’s were not in transit to another job location. The travel time should be calculated based on the time it took to get from Lowe’s to his next work location, which was 14 minutes. The total time that Mr. Overhoff spent on personal business was 1.95 hours. Thus, Mr. Overhoff spent .95 hours above his allotted break time for his personal business. No evidence was presented that leave was taken, and his daily labor sheet showed that he worked for eight hours on that day. July 7, 2008 On July 7, 2008, vehicle M404 left the maintenance department on Canal Street at 7:22 a.m. and proceeded to a 7-11 at the corner of Winkler and Colonial Boulevard, arriving there at 7:33 a.m. and leaving at 7:38 a.m. The vehicle arrived at Ray V. Pottorf Elementary at 7:43 a.m. and left at 9:35 a.m. The next stop was Lexington Middle School, where the vehicle arrived at 9:51 a.m. and departed at 10:05 a.m. From Lexington Middle School, the vehicle went to Fort Myers Beach Elementary School, arriving at 10:18 a.m. and leaving at 10:22 a.m. The vehicle arrived at Tanglewood/Riverside Elementary School at 10:46 a.m. and left at 11:04 a.m. At 11:21 a.m., the vehicle returned to the maintenance department at Canal Street. Leaving the maintenance department at 12:04 p.m., the vehicle proceeded to Dunbar High School, arriving at 12:10 p.m. and leaving at 12:23 p.m. At 12:39 p.m., the vehicle arrived at Crowther Roofing and remained there until 12:52 p.m. The vehicle made another stop at One Price Optical at 1:12 p.m. Leaving One Price Optical at 1:21 p.m., the vehicle arrived at Taco Bell off Santa Barbara Boulevard at 1:27 p.m. and left at 1:46 p.m. The vehicle arrived at Mariner High School at 1:53 p.m. and departed at 2:09 p.m. At 2:14 p.m., the vehicle entered the Publix Shopping Center off Santa Barbara Boulevard, departing at 2:17 p.m. From 2:22 p.m. to 2:37 p.m., the vehicle was stopped at a warehouse. At 2:44 p.m., the vehicle arrived at Mr. Overhoff’s house, where it remained until 2:47 p.m. At 3:07 p.m., the vehicle returned to the maintenance department at Canal Street. Mr. Overhoff stopped at a convenience store for five minutes in the morning. In the early afternoon, he made a nine- minute stop at One Price Optical, which was not an authorized stop. He stopped at Taco Bell for 19 minutes. He went to a Publix Shopping Center for three minutes, to a warehouse for 15 minutes, and to his home for three minutes. The stops at the Publix Shopping Center, the warehouse, and Mr. Overhoff’s home were not authorized, were for personal business, and were not in transit to a job location. Thus, the travel time from the shopping center to his home, which totals 12 minutes should be added to the time taken for personal business. The total time for personal business on July 7, 2008, was 65 minutes, which was five minutes above the allotted break times. July 8, 2008 On July 8, 2008, vehicle M404 left the maintenance department at Canal Street at 7:44 a.m., arrived at ALC Central/New Directions at 7:53 a.m., and departed ALC Central/New Directions at 8:23 a.m. The vehicle returned to the maintenance department at 8:28 a.m. and remained there until 8:41 a.m. At 8:58 a.m., the vehicle arrived at Tropic Isles Elementary School and remained there until 9:37 a.m. From the elementary school, the vehicle proceeded to the 7-11 store located off Pondella and Orange Grove. The vehicle arrived at the 7-11 at 9:39 a.m. and left at 9:42 a.m. From the 7-11, the vehicle proceeded to New Directions, arriving at 9:55 a.m. and leaving at 9:57 a.m. The vehicle returned to the maintenance department at Canal Street at 10:03 a.m. and departed at 10:33 a.m. The next stop was Cypress Lake High School, where the vehicle arrived at 10:56 a.m. and left at 11:28 a.m. From Cypress Lake High School, the vehicle traveled to Bank of America off Cypress Lake Drive. The vehicle arrived at the bank at 11:30 a.m. and left at 11:38 a.m. From the bank, the vehicle arrived at the 7-11 store off Metro Parkway at 11:45 a.m. and departed at 11:55 a.m. After leaving the 7-11 store, the vehicle proceeded to South Fort Myers High School, arriving at 11:59 a.m. and departing at 12:31 p.m. The next stop was Roofing Supply Company, where the vehicle stopped at 12:46 p.m. and left at 12:59 p.m. The vehicle proceeded to New Directions and arrived at 1:07 p.m. The vehicle remained at New Directions until 1:53 p.m. From New Directions, the vehicle headed to the maintenance department at Canal Street, where the vehicle arrived at 2:06 p.m. and remained. Mr. Overhoff stopped at a convenience store in the morning for four minutes, at a bank for eight minutes at lunch time, and at a convenience store for ten minutes at lunch time. These stops were made in transit to a job location. July 9, 2008 On July 9, 2008, vehicle M404 left the maintenance department at Canal Street at 7:12 a.m. and arrived at the 7-11 store off Metro Parkway and Colonial at 7:23 a.m. The vehicle remained at the 7-11 store until 7:30 a.m., when it left for Six Mile Cypress School, arriving at 7:42 a.m. and leaving at 7:53 a.m. The next stop for the vehicle was The Sanibel School, where the vehicle arrived at 8:29 a.m. and departed at 9:19 a.m., headed for Bailey’s General Store off Periwinkle Way. The vehicle arrived at Bailey’s General Store at 9:25 a.m. Mr. Overhoff made an authorized purchase of a 6-volt lantern at the store and left the store in the vehicle at 9:35 a.m. to return to The Sanibel School at 9:42 a.m. The vehicle remained at The Sanibel School until 10:29 a.m. At 10:39 a.m., the vehicle arrived at the 7-11 store off Periwinkle Way, where the vehicle remained until 11:02 a.m. From the 7-11, the vehicle traveled to Riverdale High School, where it arrived at 11:53 a.m. The vehicle remained at Riverdale High School until 1:36 p.m. The next stop was a convenience store on Palm Beach Boulevard, where the vehicle arrived at 1:42 p.m. and left at 1:46 p.m. From the convenience store, the vehicle proceeded to Edgewood Elementary School, arriving at 1:59 p.m. and leaving at 2:09 p.m. From Edgewood Elementary School, the vehicle traveled to New Directions/ALC Central, arriving at 2:16 p.m. and leaving at 2:23 p.m. The next stop was Dunbar High School, where the vehicle arrived at 2:28 a.m. and left at 2:56 p.m. The last stop was the maintenance department at Canal Street at 3:00 p.m. Mr. Overhoff stopped at a convenience store early in the morning for six minutes, at another convenience store at mid-morning for 23 minutes, and at a convenience store in the afternoon for four minutes. These stops were in transit to job locations. July 10, 2008 On July 10, 2008, vehicle M404 left the maintenance department at 8:30 a.m. and arrived at the Hess Service Station off River Road at 8:50 a.m. The vehicle remained at the Hess Service Station until 8:53 a.m., when it departed for Lee County Electric Company off Electric Lane. The vehicle arrived at the utility company at 8:56 a.m. and left at 8:59 a.m. The next stop was North Fort Myers Academy of the Arts, where the vehicle arrived at 9:06 a.m. and departed at 9:40 a.m. From North Fort Myers Academy of the Arts, the vehicle proceeded to Hector A. Cafferata, Jr., Elementary School, arrived there at 10:07 a.m. and left at 10:47 a.m. The next stop was Ida S. Baker High School, where the vehicle arrived at 11:05 a.m. and left at 11:26 a.m. At 11:29 a.m., the vehicle arrived at Gulf Middle School and left at 11:45 a.m. From Gulf Middle School, the vehicle traveled to Three Oaks Elementary School arriving at 12:41 p.m. and leaving at 1:11 p.m. The vehicle next arrived at Bonita Springs Elementary School at 1:30 a.m. The vehicle left Bonita Springs Elementary School at 1:55 p.m. and arrived at Lowe’s at Rolfes Road at 2:27 p.m. Mr. Overhoff made an authorized purchase at Lowe’s, and the vehicle left Lowe’s at 2:54 p.m. and arrived at the maintenance department at 3:04 p.m. Mr. Overhoff stopped at a convenience store for three minutes in the early morning and at the electric company for three minutes. The stop at the electric company was not an authorized stop. July 11, 2008 On July 11, 2008, vehicle M404 left the maintenance department at Canal Street at 7:34 a.m. and arrived at the 7-11 store off Lee Boulevard at 8:00 a.m. The vehicle remained at the 7-11 until 8:04 a.m., when it departed for Veteran’s Park Academy, where it arrived at 8:18 a.m. and left at 9:58 a.m. From Veteran’s Park Academy, the vehicle traveled to North Fort Myers High School, where it arrived at 10:45 a.m. and departed at 11:38 a.m. The vehicle returned to the maintenance department at Canal Street at 12:03 p.m., where it remained until 12:24 p.m. From the maintenance department, the vehicle traveled to the 7-11 store off Pondella Road, where it arrived at 12:39 p.m. and left at 12:43 p.m. From the 7-11, the vehicle traveled to Mariner High School, where it stopped at 12:57 p.m. and left at 1:28 p.m. The next stop was Riverdale High School, where the vehicle arrived at 2:07 p.m. and departed at 2:17 p.m. After leaving Riverdale High School, the vehicle went to Bank of America, arriving at 2:20 p.m. and leaving at 2:24 p.m. The vehicle left the bank and headed to Dunbar High School, where it arrived at 2:44 p.m. and left at 2:51 p.m. The last stop for the vehicle was at the maintenance department at Canal Street at 2:56 p.m. Mr. Overhoff stopped at a convenience store for four minutes in the early morning, at a convenience store for three minutes at lunch time, and at a bank in the afternoon for four minutes. The stops were in transit to job locations. The School District initiated an investigation into Mr. Overhoff’s use of a School District vehicle for personal business while on School District time. A predetermination conference was held on September 25, 2008. Mr. Overhoff appeared at the predetermination conference along with a representative of the SPALC. At the conclusion of the investigation, the School District determined that probable cause existed to impose discipline on Mr. Overhoff. On December 18, 2008, Mr. Overhoff was suspended with pay and benefits. By Petition for Termination of Employment, the superintendent for the School District recommended to the School Board that Mr. Overhoff be terminated from his employment. Mr. Overhoff requested an administrative hearing. On February 24, 2009, the School Board suspended Mr. Overhoff without pay and benefits pending the outcome of the administrative hearing. Mr. Overhoff had no prior disciplinary actions taken against him while he has been employed with the School District. Prior to the incidents at issue, Mr. Overhoff had received good performance evaluations. He is regarded by the director of maintenance for the School District as a good roofer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Overhoff violated The School Board of Lee County Policies 5.02, 5.29, 5.33, and 7.04; finding that Mr. Overhoff willfully neglected his assigned duties; suspending him from employment without pay from February 24, 2009, to September 30, 2009; and placing him on probation for one year. DONE AND ENTERED this 13th day of August, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 13th day of August, 2009.
The Issue Whether Respondent committed the offense(s) charged in the Amended Administrative Complaint; and, if so, whether the two-day unpaid suspension imposed by Petitioner should be upheld.
Findings Of Fact The undersigned makes the following findings of relevant and material facts: Petitioner is the duly-constituted school board of Broward County, Florida. It is charged with the duty to provide a public education to the students of Broward County and to establish policies and programs consistent with state law and rules, necessary for the efficient operation and general improvement of the Broward County district school system. Respondent was employed by Petitioner as a physical education teacher at West Broward High School during the 2014- 2015 school year. March 19, 2015, Incident On March 19, 2015, Respondent was teaching a ninth-grade health and physical fitness class known as HOPE, during the seventh period of the school day. March 19, 2015, was the day before the students were going to be released for Spring Break. As was the common practice, many of the students in his class opted to attend a "pep rally" being conducted on campus, which began shortly after his HOPE class started. After the students departed for the "pep rally," approximately 12 students remained in the class under Respondent's supervision. The class remained in session, and Respondent showed the remaining class students an educational video. As the video played, the lights were dimmed. Respondent was at the front of the class sitting behind his desk in a chair that reclined. During the video, one of the students, J.R., observed Respondent leaning back, reclined in his chair with his eyes fully closed. Respondent's chair was turned partially away from the class. J.R.'s desk was approximately 15 to 20 feet from Respondent's desk. J.R. observed Respondent in this posture for close to ten minutes. At some point, J.R. got up from his desk and approached Respondent to hand in some paperwork. While standing directly in front of Respondent's desk, he took a photograph of Respondent in this posture. See Pet. Ex. 5. When J.R. approached Respondent's desk and stood in front of it, Respondent did not wake up, stir, or acknowledge J.R.'s presence or take the papers from him. Notably, J.R. heard Respondent lightly snoring during the time he was asleep.1/ J.R. shared this photograph with several friends on a social media site. One of his friends, J.L., who was also attending the same class, saved the photograph by taking a screen shot of it.2/ While all of this occurred, J.L. was sitting in close proximity to J.R. J.L. also noticed that Respondent was sleeping and reclined in his chair with his eyes closed. During the period of time that Respondent was in this posture and slumber, he was not properly attending to his duties as a teacher and was not properly supervising the students in his class. While it is not necessary to recount in detail, the record reflects that Respondent had been counseled, written up, or warned about not properly supervising or monitoring students in other classes during the years preceding this incident. These various memos and written or verbal warnings constituted sufficient directives or orders by supervisors, the violation(s) of which constituted insubordination. See generally Pet. Ex. 18, composed of multiple subparts and pages. Based on the persuasive and credible evidence, it should have been obvious to Respondent on March 19, 2015, that this type of conduct was strictly prohibited, in violation of School Board rules and regulations, and exposed him to progressively stricter discipline. Sometime later, J.L. met with the assistant principal, Richard Gonzalez, to complain about his grades in Respondent's class. It was during this meeting that Gonzalez was shown the picture that J.R. had taken on March 19, 2015. After conducting an investigation, Gonzalez and the principal, Teresa Hall, met with Respondent and his union representative during a pre-determination meeting to discuss the incident and provide Respondent with an opportunity to respond. Initially, and before being shown the picture, Respondent denied that he had been sleeping in the HOPE class. However, after being shown the picture, Petitioner's Exhibit 5, he asserted that the picture was not in a classroom. He went on to add that it "would not be like me to do that." He lamented that he was going through marital problems and was on medication. He told Hall and Gonzalez that he was embarrassed. Respondent cried during the meeting. He also told Hall and Gonzalez that he had never done this before and could not believe that it happened. He appeared very embarrassed. He told both of them, as he handed back the photograph, "I can't believe this happened." The undersigned concludes that despite the lack of a direct or forthright admission that he had been caught sleeping, Respondent acknowledged through his verbal and physical responses, demeanor, and body language that he had been inattentive, sleeping, and caught in this posture in violation of School Board rules and policies. Further, it is clear that Petitioner's Exhibits 5 and 6 alone show Respondent fully asleep and/or in a very deep state of slumber and clearly inattentive to his duties as a supervising teacher for the HOPE class on March 19, 2015. During the hearing, Respondent was questioned by his attorney about the picture that appeared to show that he was sleeping. He denied closing his eyes. He acknowledged that the picture was of him, but asserted, "I'm not sleeping." Rather, he deflected the point of the inquiry and stated "I've never slept, especially with students in class." Inexplicably, he left it at that and offered no credible explanation concerning what the picture showed or depicted. At some point after this incident, Respondent approached the school resource officer, John Sammarco. They discussed the photo of Respondent taken by J.R. which purportedly showed him sleeping. He asked the officer to talk to the student and have J.R. retract the photograph from the internet and write a statement saying that Respondent was not sleeping. Needless to say, Sammarco refused to assist Respondent in this manner and, instead, immediately reported this meeting to Hall and Gonzalez. Shortly thereafter, Respondent came back to the officer and apologized to him for "putting him [sic] in that position." March 30, 2015, Incident The school principal, Hall, was conducting a routine walk-through of the West Broward High School campus with her assistant principal, Gonzalez. As they passed Respondent's classroom, they noticed that the lights were dimmed. Interested to know what was happening, they entered the class room by using the back door. The classroom was dimly lit and full of students. They walked up the right side of the classroom along the wall from the rear of the classroom. Respondent was seated at his desk, turned away from the class, and facing more in the direction of the video screen that was located at the front of the class. Respondent was leaning back in a relaxed posture and had his cell phone in his hand. He was not facing the class or watching the students. From her vantage point, several feet behind and to the right of Respondent, Hall could see that Respondent was looking at pictures of females on his cell phone and scrolling through them with his finger. He would occasionally glance up at the video being shown on the screen and then glance back down at his cell phone. Hall stood quietly behind Respondent observing this activity for approximately one to two minutes. Respondent never acknowledged her presence, nor did he turn and notice that the school principal was in the room with Gonzalez. Gonzalez was slightly behind Hall. He could also tell that Respondent had his cell phone in his hand, but was not able to see what he was looking at. Nonetheless, Gonzalez confirmed that Respondent did not acknowledge their presence or even appear to know that they were in the classroom.3/ When asked during the administrative hearing about this particular incident, Respondent testified that he knew they were there but that he was not required to acknowledge their presence. He said he did look at his cell phone but does not recall what pictures he was looking at. The pictures may have been from Facebook or some other social media. When asked if it is appropriate to look at social media in a classroom of students, with the school's principal present, he stated that "I did it, but I didn't think nothing of it." Based on the more credible and persuasive evidence, the undersigned finds that Respondent was not aware that Hall and Gonzalez were in the room observing his actions, nor was he properly supervising his students during Hall's visit. Further, these separate incidents on March 19 and 30, 2015, constituted: (1) a lack of proper supervision of his classes; (2) willful neglect of his duties as a teacher; and (3) insubordination.
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 imposing its intended penalty of a two-day, unpaid suspension. DONE AND ENTERED this 6th day of December, 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 6th day of December, 2016.
Findings Of Fact The Respondent, Stanley McIntyre, was employed by the Petitioner as a custodian at Apalachicola High School in July 1984. Mr. Philip Michael Fox was the principal at Apalachicola High School at that time. Petitioner is a governmental agency charged with providing public educational instruction to students in the school district of Franklin County, and enforcing State laws embodied in Chapters 230 and 231, Florida Statutes, and Chapter 6B-4, Florida Administrative Code, which pertain as pertinent hereto, to the hiring, termination or suspension of non-instructional employees such as Mr. McIntyre. Mr. McIntyre's duties as custodian included opening the front office of the school every morning, cleaning that front office daily, as well as cutting the grass on the school lawn. Mr. McIntyre was to work on a regular schedule for grass cutting such that the grass was supposed to be cut each Monday. On the morning of July 3, 1984, Mr. Fox approached Mr. McIntyre on his way into the school building in the morning and mentioned to him that the grass in front of the school needed to be cut. Mr. Fox stated that the grass was approaching knee length. Mr. McIntyre explained to him that he was letting the grass grow higher because of the summer heat and that it was harmful to the grass and its roots if the grass was cut too short during hot, dry weather. Mr. Fox indicated to Mr. McIntyre that he understood that reason, but still required the grass to be cut lower. In fact, the Superintendent and School Board members had complained to Mr. Fox about the unkempt appearance of the lawn. Shortly before July 3, 1984, an incident had occurred at the high school office involving the safe being left open and some money being stolen. The Respondent and two other custodians had evidently been questioned about the incident, taken to the local police station and finger printed. Mr. McIntyre was sensitive and upset about the incident, evidently believing that others working at the school believed him to be one of the culprits in the incident, especially the secretaries in the front office. Shortly before noon on July 3, 1984, Mr. Fox was departing the school to attend a Rotary Club meeting. The Respondent approached him to discuss this incident concerning which he believed he was under suspicion. Mr. McIntyre related to Mr. Fox that he was tired of being accused of things that went wrong in the front office and did not desire to work there any more. Mr. Fox assured Mr. McIntyre that he was not accused of any wrong-doing and that Mr. Fox had been assured by the school Superintendent that the matter had already been resolved. Mr. Fox assured Mr. McIntyre of this and told him that he was not accused of anything and not to worry about it, but that they would discuss it when he returned from lunch. After Mr. Fox returned to the school that day, Mrs. Martina, an employee in the office, informed him that Mr. McIntyre had put his keys on the front desk and informed her that he was leaving for the rest of the week. The keys Mr. McIntyre left with Mrs. Martina included those: to the front office door. In any event, Mr. McIntyre remained away from work for the remainder of that week, which included the fourth of July holiday. No arrangements had been made with Mr. Fox for Mr. McIntyre to be away from work and Franklin County School Board policies require that non-instructional employees have approval of their immediate supervisor before taking annual leave. There is no question that Mr. McIntyre had sufficient annual leave accrued so that he was not absent without leave for the remainder of that week. Although Mr. McIntyre obtained no approval from Mr. Fox, his immediate supervisor, he did inform Mrs. Martina that he would be on annual leave and such a practice had become customary at the school. In any event, the question of unauthorized absences is not properly at issue in this case since no such charge was made against the Respondent prior to hearing so that he could prepare to defend against it. On the Monday following the above incident, that is Monday, July 9, 1984, Mr. Fox instructed Mrs. Martina to inform McIntyre to come to his office to see him when he returned to work. Upon Mr. McIntyre's arrival, Mr. Fox questioned him concerning why he left his keys in the office the previous week. Mr. McIntyre again told Mr. Fox that he was tired of being accused of stealing from the front office and did not intend to work there any more. Mr. Fox informed him that it was not his proper place to tell the principal what he would and would not do, (meaning that he was subject to the principal's supervision and not independent of him), and reminded Mr. McIntyre that he had previously changed Mr. McIntyre's work schedule at his own request so that he would be able to work in the front office because of friction he was having with another custodial employee who had been associated with McIntyre because of their identical work schedules. After reminding Mr. McIntyre of this, Mr. Fox requested that he take back the keys to the front office and proceed to perform his job as previously instructed, including opening up the front office and cleaning it. Mr. McIntyre, however, stated several times that he was not going to work in the front office any more. Mr. Fox told him that he needed to simply do his job, whereupon Mr. McIntyre replied that Mr. Fox needed to make the secretaries do their jobs (in other words, to refrain from accusing McIntyre of any wrong-doing). Mr. Fox assured Mr. McIntyre that he would take care of any problem he was having with the secretaries and not to worry about it, but in the meantime to be sure to perform his own job properly. Fox told Mr. McIntyre more than once that his only concern should be proper performance of his own job. Mr. McIntyre responded that he was doing his job and so Mr. Fox responded that he needed to do it correctly because the grass in the front of the school needed to be cut. Mr. McIntyre, at this juncture, reiterated his reason for allowing the grass to grow long and Mr. Fox remonstrated that it was not short enough and he wanted it cut shorter. The grass was quite long, approaching knee length at that time. Mr. McIntyre then became excited and raised his voice at Mr. Fox, stating in effect that he was doing the best he could and that if Mr. Fox did not like the way he was doing his job, then Mr. Fox could fire him. Mr. Fox then asked him to simply go cut the grass and perform his other duties as instructed and that that was all he needed to worry about. Mr. Fox and Mr. McIntyre repeated themselves several times with Fox directing McIntyre to cut the grass and perform his job in the front office as instructed and McIntyre stating that he was doing his job and that if Fox did not like it he could fire him if he wished. Finally Mr. McIntyre stated his belief that Mr. Fox was "picking on him" because of an incident in which several black players boycotted the football team and intimating that Mr. Fox had blamed the Respondent for this dissension on the team. At this point Mr. Fox told Mr. McIntyre that the conversation was ended and that he should go to work. Mr. McIntyre persisted in responding to Mr. Fox in the above fashion and in effect challenging Fox to fire him if he was dissatisfied with his performance. After several such repetitions, Mr. Fox obliged him, requested his keys and told him he was fired. The doors to the office were closed during this conversation but Mrs. Martina overheard Mr. McIntyre shouting at Mr. Fox concerning his belief that he was performing his job adequately and challenging Mr. Fox to fire him. Mrs. Martina was not able to overhear everything stated by Mr. Fox, however. In any event, it has been established that on both July 3 and July 9, 1984, Mr. McIntyre informed Mr. Fox that he would not work any more in the front office. Mr. McIntyre, in his testimony, attributed his firing to an incident in which the black players quit the football team. Mr. McIntyre had worked as an assistant football coach at the high school at that time, some eight months before his firing. According to Mr. McIntyre, the incidents occurred in September and November 1983. Mr. Fox indicated that the incidents stemmed from a conflict between McIntyre and the head football coach, who were blaming each other for the problems with the recalcitrant black players. Mr. Fox indicated that he received the information from third parties, did not truly know who was responsible and had never blamed anyone for the dissension on the team. Mr. Fox felt that he had always had a good relationship with Mr. McIntyre and after the incident had spoken with him about it. Mr. Fox related that it was in the best interest of the players that they continue to play football, and Mr. McIntyre apparently agreed. The situation apparently resolved itself with the departure of the head football coach from the Franklin County School System. In any event, both McIntyre and Fox apparently discussed the matter at the time with no apparent conflict or animosity. These incidents occurred in September and November 1983, approximately eight months before McIntyre was terminated and thus Mr. McIntyre's contention that Mr. Fox recommended his firing because of the "football incidents" is not convincing. The Respondent's three witnesses, including Respondent, testified that on July 3, he mowed the grass as requested by Mr. Fox. The Petitioner's witnesses, including Mr. Fox, Mrs. Martina, and Ms. Diane Abel, testified that the grass was not mowed when they observed it on July 3. Mrs. Martina left the building at about 4:30 and Ms. Abel left about 4:00 in the afternoon, after the Respondent had given his keys to Mrs. Martina and taken annual leave. They testified that the grass was not mowed at that time and was quite long. Mrs. Martina testified that the grass at the front of the school had not been mowed at that time. It is possible that some of the school grounds were mowed that day. Be that as it may, whether the grass was mowed or not on July 3 is not material to resolution of the material issues in this case. The fact remains that on both July 3 and July 9, Mr. Fox told the Respondent that he simply needed to do his job and not worry about the alleged accusations, after explaining to Mr. McIntyre that he had not been accused of anything and that the matter had already been resolved. Mr. McIntyre, on both occasions, expressed his refusal to work in the front office, including unlocking the door of the office in the mornings, after Mr. Fox instructed him to continue performing those and his other duties, including cutting the grass.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the Respondent, Stanley McIntyre, be suspended without pay from his employment with the School Board of Franklin County, with such suspension without pay to terminate upon the Petitioner's entry of a Final Order herein, if on the date of that Final Order a similar and suitable position is available to which he may be reinstated. DONE and ENTERED this 13th day of March 1987, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2601 Petitioner's Proposed Findings of Fact: Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted, but not dispositive of material issues. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Respondent's Proposed Findings of Fact: a) Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. a) Rejected inasmuch as the various charging documents also notified Respondent that his prosecution involved neglect of his duties. Rejected inasmuch as the various charging documents also notified Respondent that his prosecution involved neglect of his duties. Accepted. Accepted. Accepted as to the issue of unauthorized absence only. Accepted as to the issue of unauthorized absence only. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected as subordinate to the findings made by the Hearing Officer on this subject matter. Rejected as subordinate to the findings made by the Hearing Officer on this subject matter. Rejected as subordinate to the findings made by the Hearing Officer on this subject matter. Rejected as a recitation of testimony and not Findings of Fact. Rejected as a recitation of testimony and not Findings of Fact. Accepted, but not dispositive. Rejected as not comporting with the weight of evidence adduced or the lack thereof. Rejected as a discussion of the evidence rather than a Finding of Fact. Rejected as a discussion of the evidence rather than a Finding of Fact. Accepted, but not dispositive of the material issues presented. Accepted, but not dispositive of the material issues presented. Rejected as not being established by the greater weight of the evidence. Rejected as immaterial and subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected as immaterial and subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected as discussion of testimony and not a Finding of Fact. Accepted. Accepted. Rejected. Accepted. Accepted, but not dispositive of the material issues presented. Rejected as not in accordance with the clear and convincing evidence adduced. Rejected. Accepted. Rejected as not in accordance with the clear and convincing evidence adduced. Accepted. Accepted, but not in itself dispositive of the material issues presented. Rejected. Accepted, but not in itself dispositive of the material issues presented. Rejected as not consonant with the clear and convincing evidence adduced. Rejected as to its overall import. Rejected as not constituting a Finding of Fact. Rejected as not constituting a Finding of Fact. Rejected as not constituting a Finding of Fact. Rejected as not consonant with the clear and convincing evidence adduced. COPIES FURNISHED: Van Russell, Esquire WATKINS RUSSELL 41 Commerce Street Apalachicola, Florida 32320 Paolo G. Annino, Esquire Legal Services of North Florida, Inc. 822 North Monroe Street Tallahassee, Florida 32303 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney McKenzie Department of Education Knott Building Tallahassee, Florida 32301 Gloria Tucker Superintendent Franklin County School Board 155 Avenue E Apalachicola, Florida 32320
The Issue Whether just cause exists to impose discipline on Respondent’s employment; and, if so, what is the appropriate discipline.
Findings Of Fact At all times material to this case, Respondent was a School Board employee. Respondent was employed as a custodian at Choctawhatchee High School (“Choctaw”) when he was terminated in 2017. As a custodial employee, Respondent was subject to the Collective Bargaining Agreement entered into between the School Board and the Okaloosa County Education Association. When he was terminated, Respondent had been employed by the School Board for approximately 24 to 26 years. Respondent was employed as a custodian at Choctaw beginning in 2015. Prior to that, Respondent was employed by the School Board as lead custodian at Choice School (“Choice”). Before that, at least five years before his employment at Choctaw, Respondent was employed by the School Board as a pre-K liaison at Edwins Elementary (“Edwins”). In addition, Respondent had been employed by the School Board over the years as a bus driver and in other custodial positions. The School Board's termination of Respondent's employment was based largely upon a formal equity complaint1/ (“Formal Complaint”) submitted on October 5, 2017, by Mrs. Williams, a volunteer at Choctaw, alleging harassment by Respondent with an attached email addressing her concerns regarding contacts by Respondent and a history of alleged harassment by Respondent. The email attached to Mrs. Williams' Formal Complaint is dated October 3, 2017, and states: Harassment has gone back to Edwins Elementary nearly 8 years ago. I was a parent as well as a PTO [parent teacher organization] Member/President for a few years at Edwins Elementary. There were constant unprofessional/vulgar comments made by Steve Hall in reference to my body and parts of my body, the way my clothing may fit certain areas of my body or his requesting to take photos of me. I think on occasion he may have taken some photos because as I would turn around and his phone was lifted in my direction to do so. On countless occasions employees would stand with me to hinder him hanging around and commenting. This frequently occurred during his employment at Edwins Elementary School. On one occasion my young high school age daughter, at the time, was at Edwins Elementary School with me during school hours. I was introducing my daughter to some people and Steve walked up so not to be rude I introduced her to him as well. Steve Hall's comment was not "hi" or "how are you?" it was "move over mom . . .!" As her mother I was disgusted! I told Mr. Farley but my daughter did not want to get into it or write a statement. I respected her wishes and just limited her presence on that campus. This entire time I have also been volunteering at Choctawhatchee High School. I found out that he was moved from Edwins to another school. I am still a full-time volunteer at CHS [Choctaw] and one day Steve Hall showed up at Choctaw's front desk. Knowing what actions I have seen from him I was extremely concerned finding out Steve is now an employee at Choctawhatchee High School. Approaching me at the front desk at Choctaw began to be a habit for Steve Hall. I called and met with Mr. Farley to work out a solution hoping this could be resolved professionally. The rule was Steve was not to be anywhere within the front office area to include the mail room. I have had to call Mr. Farley on multiple occasions because he continued to approach me in the front office. Currently he continues to try to communicate inappropriately with me at the football games or on campus, school events. Steve sits in the stands eating concession food and watching the football games for the most of the game. Steve tries to initiate conversation through my son who is special needs and only understands he is suppose to be nice to everyone. Not wanting/needing to explain this situation to my son. [sic] My son responds when spoken to by Steve because Steve is an adult and my son knows I require respect from him no matter who speaks to him. This makes football games and school events difficult every season with this year being no different! At the CHS vs. Tate game I was thankful there was a fence between the sections we were sitting in, so that he could not get closer without going all the way down and back up. I just turned away with no response. It is frustrating feeling like I have to hide to avoid Steve! This school year Steve has come to the front office area 3 times within the first month and a half of school. Each time I reported it and Steve was told to stay away from the front office. On one of the occasions I was in the back, in the mail room. Someone came to let me know Steve was up front looking for me. I tried to go out the back of the mailroom door to Mr. Snaith's office to get assistance and Steve walked in to confront me. The confrontation was extremely uncomfortable to say the least. About that time Mr. Snaith walked in and witnessed most of the confrontation escorting me away from Steve and we called Mr. Farley. Again! Steve was talked to about not coming to the front office for any reason. He has Ms. Liz's phone number (his supervisor) if he needs her. He has since come back to the front office again! He was told again not to come to the front office at all for any reason and it was discussed by Mr. Farley he needed to be more aware of his actions and the way they may be perceived. I am also the parent in charge of "Parents for Prior." After this years current situations, Steve was spoken to by Mr. Bill Smith. Steve Hall approached me at the Pryor Middle School football game held at Choctaw stadium. I was trying to work a table at the game, soon after the most recent issue. Steve approached my son first then walked closer to me requesting to speak to me for a "hot minute" in the alley between the touchdown shack and stadium. I'm sure it would be on the stadium cameras as stated in my statement to Bill Smith. I was unable to leave due to my possession of money and tickets. I glared at Steve and he stated I guess I should just keep walking. I nodded "yes"! This is only the most prominent on campus situations. I called Bill Smith and explained I should tell Steve to stay away. I feel we are past this due to this being years in the making. This has already been addressed and discussed with Steve on multiple occasions. Bill Smith stated I needed to send him an email statement and apologized he had not yet gotten with Mr. Chapman, from a week before, because of the hurricane. This was my second statement to Bill Smith this school year as well as one meeting with him. I enjoy volunteering my time at Choctawhatchee High School. Within a few years I'll be a Choctaw parent, unless I am required to move my son to another high school because of this. This is not what I want to do as a parent or volunteer. I do not feel it is fair I may need to remove myself and choose another high school for my son to attend because of an employee's unprofessional/vulgar behavior. Steve Hall repeatedly drives by my home. The latest time that I know of was within a week or so before school started this year 2017-2018. I was on the phone walking out of my home, I looked up and saw Steve sitting out in front of my home rolling down his window motioning me to come talk to him. I turned to return inside to get my husband, who is law enforcement, but Steve drove off in his green avalanche. I do not live on a main road nor have I given him my address. My street is not a road someone would just drive by on. If this continues I will file a restraining order. If there are any questions or concerns please do not hesitate to contact me. Mrs. Williams’ Formal Complaint was assigned to Gary M. Marsh, investigator, Escambia County School District, on October 11, 2017, for investigation. Mr. Marsh conducted his investigation and submitted his investigative report dated October 31, 2017, to the School Board's superintendent. The investigative report was hand-delivered by Mr. Marsh and received by the superintendent on November 3, 2017. In a letter dated November 14, 2017, the School Board's assistant superintendent of human and resources advised Respondent that she was recommending to the superintendent that Respondent be suspended with pay, effective immediately, and further that his employment with Petitioner be terminated at the December 11, 2017, School Board meeting. The letter states: Mr. Hall, An investigation has now been completed regarding the Formal Equity Complaint made against you on/or about October 5, 2017. A copy of the investigative report is attached for your information and review. This is the second formal investigation of an equity complaint against you since 2014. Based upon a culmination or multiple instances of harassment, misconduct in the workplace or gross insubordination, over the course of the last three years, I am recommending that the Superintendent suspend you with pay effective immediately and further that your employment with the School District be terminated at the December 11, 2017, School Board meeting. The charges against you are based upon the finding of illicit material in your desk at Edwins Elementary School and repeated inappropriate comments leading to coworkers feeling harassed which led to your transfer in 2014 from Edwins Elementary School to Okaloosa Technical College (OTC); in late 2014, during your time at OTC, allegations of unwanted sexual behavior constituting sexual harassment on your part as confirmed in a formal investigation which led to your demotion and transfer from a lead custodian to a custodian at Choctaw High School (CHS). Additionally, while at CHS, new allegations of harassment have been made against you. Due to these allegations you were directed on multiple occasions by both your supervisor and a district administrator not to enter the CHS front office or mail room. As a result of a recent investigation it has been determined that you have continued to enter the school front office area in direct insubordination of your supervisor and a district administrator. Further, after review of the investigative report there is sufficient evidence to believe that harassment of a school volunteer did occur. Your conduct is considered to be gross insubordination, misconduct in office and harassment in direct violation of the following School Board policies: School Board Policy 07-03 Employment Conditions for Education Support Personnel School Board Policy 06-27 Equity Policy: Harassment on the Basis of Race, Color, National or Ethnic Origin, Sex, Age, Religious Beliefs, Marital Status, Pregnancy or Disabilty In accordance with both School Board policy 06-28 E(2) and Section K(a) of the OCESPA Master Contract you may file a written appeal to the Superintendent within ten (10) calendar days of receipt of the enclosed investigative report and this recommendation. In a letter dated November 29, 2017, the assistant superintendent of human resources requested that the superintendent recommend to the School Board that Respondent be terminated for gross insubordination, misconduct, and harassment. The Superintendent notified Respondent in a letter dated November 29, 2017, that she would recommend his termination from employment at the December 11, 2017, School Board meeting for gross insubordination, misconduct, and harassment. At its December 11, 2017, meeting, the School Board approved the superintendent’s recommendation, and Respondent was terminated from his custodian position. Neither Superintendent Mary Beth Jackson nor Assistant Superintendent Stacie Smith testified at the hearing. According to the November 14, 2017, letter from the assistant superintendent, quoted above, the recommendation for Respondent's termination is "[b]ased upon a culmination of multiple instances of harassment, misconduct in the workplace or gross insubordination, over the course of the last three years." [emphasis added]. The three allegations that form the basis of the recommended discipline against Respondent are analyzed below under headings derived from the November 14, 2017, letter as follows: 1) "finding of illicit material in your desk at Edwins Elementary School and repeated inappropriate comments leading to coworkers feeling harassed which led to your transfer in 2014 from Edwins Elementary School to Okaloosa Technical College (OTC)"; 2) "in late 2014, during your time at OTC, allegations of unwanted sexual behavior constituting sexual harassment on your part as confirmed in a formal investigation which led to your demotion and transfer from a lead custodian to a custodian at Choctaw High School"; and 3) "it has been determined that you have continued to enter the school front office area in direct insubordination of your supervisor and a district administrator. Further, after review of the investigative report there is sufficient evidence to believe that harassment of a school volunteer did occur." ILLICIT MATERIAL IN RESPONDENT'S DESK AT EDWINS AND REPEATED INAPPROPRIATE COMMENTS TO COWORKERS LEADING TO A TRANSFER At the hearing, it was revealed that Respondent's employment at Edwins predated his employment at Choice. Respondent was employed at Choice during the 2013-2014 school year.2/ Therefore, the alleged illicit material and inappropriate comments that allegedly occurred at Edwins could not have taken place "over the course of the last three years," as alleged in the November 14, 2017, letter. Notwithstanding the fact that none of the alleged “Edwins events” could have taken place over the past three years as alleged, the School Board presented no testimony or documentary evidence to prove the underlying fact that Respondent had “illicit material” in his desk while employed at Edwins. In fact, there was no testimony at all concerning this alleged prior discipline. Mrs. Williams’ email attached to her Formal Complaint states that the alleged harassment "has gone back to Edwins Elementary nearly 8 years ago." In fact, Mrs. Williams first met Respondent at least seven years before she filed her Formal Complaint against Respondent referenced in this case. When they first met, Respondent worked with the in-school suspension and student training programs at Edwins and her son attended Edwins. Mrs. Williams was a volunteer with the parent-teacher organization. Her duties as a volunteer included fundraising. Mrs. Williams described her initial relationship with Respondent as a casual friendship. Mrs. Williams kept her parent-teacher organization materials in his office and would often call him to gain access to those materials. A self- described “hugger,” while at Edwins, Mrs. Williams used to initiate hugs with Respondent and others. Although not a part of the allegations against Respondent, the evidence shows that, on one occasion, while at Edwins, Respondent asked Ms. Williams “was [she] ever into blacks." Mrs. Williams responded, “No” and that she was married. Respondent asked if she knew anybody who was into blacks because he had a friend who was into “white chicks.” Mrs. Williams told him that she knew a secretary at Choctaw who dated “black guys.” There is no indication that Mrs. Williams considered this conversation with Respondent as offensive or harassment. Mrs. Williams’ email attached to her Formal Complaint alleges that, while at Edwins, Respondent made inappropriate comments to her about her body, parts of her body, the way her clothes fit and asked to photograph parts of her body. Mrs. Williams testified that she was dismayed by his comments but never told Respondent to stop or leave her alone. Regarding Respondent’s alleged request to photograph her, Mrs. Williams testified that he made the request only once; she shook her head "No," but did not verbalize any protests and walked away. Mrs. Williams also alleges that while working at Edwins, Respondent made her aware that he was interested in her by his eye gestures and other nonverbal cues, as well as sometimes saying “whoa” when he walked by her. Respondent denies making gestures or statements indicating that he was sexually interested in Mrs. Williams. There is no indication that Mrs. Williams ever told Respondent to stop his alleged behavior or that she reported the incidents at the time. Mrs. Williams does not recall whether she reported Respondent’s alleged comments or request to photograph her to anyone at the time. Respondent denies the allegations. No witnesses were called to corroborate Mrs. Williams' allegations, and Mrs. Williams testified that she could not “attest” to anyone who could corroborate her allegations. In her testimony, Mrs. Williams explained the reference in her email attached to her Formal Complaint about the occasion at Edwins when Respondent allegedly told her to “move over mom” after she had introduced her daughter. She testified that Respondent’s statement was very offensive and sexual in nature because she believed that Respondent was saying that he liked her but now that he saw her daughter “[he was] going to go after [her] daughter.” Mrs. Williams further testified that she believed that the incident was a reportable offense because her daughter was a minor at the time, but that her daughter did not want to report and she did not file a formal complaint. Mrs. Williams testified that that Respondent had referred to her by nicknames such as “baby,” “baby girl” and “sweetie,” which she found unprofessional and made her feel uncomfortable. While there is evidence that Respondent has used the term “baby girl” in his vernacular, he explained that he used the term as just another way for saying “how you doing.” Respondent explained in his testimony that it was just “[a]nother saying for saying hey, shortie, like they say. So you say, hey, baby girl, how are you doing today?” The context of Mrs. Williams' testimony on this point suggests that Respondent used the nicknames for Mrs. Williams while they were both at Edwins. There is no evidence, however, that Mrs. Williams reported these instances at the time. There is also no evidence that Mrs. Williams ever told Respondent not to call her nicknames, or that she reported Respondent’s use of nicknames. Remarkably, Mrs. Williams’ Formal Complaint does not even mention that Respondent called her by nicknames. Despite the allegations against him, there is no evidence that while at Edwins, or at any other time, Respondent asked Mrs. Williams for a date, out for drinks, suggested that they have sex, touched her inappropriately, talked to her on the phone outside of school, or interfered with Mrs. Williams’ ability to perform her volunteer duties or responsibilities. The allegations against Respondent, while he was at Edwins, do not fall within the “course of the last three years” as alleged in the charging document (the November 14, 2017, letter) and are, therefore, inconsistent with the reasons espoused by the School Board for the discipline sought in this case. Moreover, considering the fact that Mrs. Williams’ allegations against Respondent while he was at Edwins were not timely reported, that her allegations were uncorroborated, drew no protest from Mrs. Williams at the time, and were denied by Respondent, it is found that the evidence is insufficient to show that Respondent harassed Mrs. Williams, sexually or otherwise, while at Edwins. In sum, the evidence presented at the final hearing was insufficient to prove that Respondent made “repeated inappropriate comments,” which led to “coworkers feeling harassed” while he was at Edwins. The evidence also failed to show that Respondent was transferred because of those comments or because illicit material was found in his desk. LATE 2014 ALLEGATIONS OF UNWANTED SEXUAL BEHAVIOR CONSTITUTING SEXUAL HARASSMENT LEADING TO RESPONDENT’S DEMOTION AND TRANSFER FROM LEAD CUSTODIAN TO A CUSTODIAN AT CHOCTAW This allegation, as set forth in the November 1, 2017, letter from the assistant superintendent, refers to allegations of sexual harassment that occurred in 2014 when Respondent was a lead custodian at OTC, which is in the same facility as Choice. In 2014, Respondent began working at Choice as a lead custodian. The allegations arising from Respondent’s time at Choice are not included within Mrs. Williams’ Formal Complaint. The School Board presented no testimony or competent substantial evidence to prove the underlying facts that Respondent committed “unwanted sexual behavior constituting sexual harassment” while at Choice. Respondent testified concerning this alleged prior discipline, acknowledging that he allowed a teacher at Choice to listen to some rap music, that he used the term “baby girl,” and that the School Board considered the use of the term “baby girl” a form of sexual harassment. Respondent denied, however, that he engaged in inappropriate conduct or sexual harassment. Respondent testified that he accepted a transfer as a lead custodian at Choice to a Custodian II position at Choctaw. He further testified that he was advised by the School Board that he would be transferred back to a lead custodian when a position became available. The School Board presented its Exhibit P-8a as evidence of this alleged prior discipline, which was ultimately proffered and “admitted” as a proffered exhibit (Proffer P-8a). Upon reconsideration, while it lacks evidentiary value, Proffer P-8a is received into evidence. Proffer P-8a, entitled “Confidential Inquiry Summary,” is an investigative report purportedly authored by Arden E. Farley, as a contract investigator for the School Board. Proffer P-8a does not prove the underlying facts and does not constitute competent evidence in support of the discipline sought against Respondent in this case. No witnesses were called to prove the underlying discipline related to Respondent’s alleged demotion. Furthermore, Proffer P-8a is hearsay and does not corroborate direct testimony or any other competent evidence. Because Proffer P-8a references Respondent’s alleged use of the term “baby-girl,” the School Board, through counsel, argued that Proffer P-8a is evidence that Respondent was aware that the use of the term “baby-girl,” or similar terms, was improper and could subject him to discipline. This conclusion is contrary to the evidence presented at the hearing. Although Mrs. Williams testified that Mr. Hall used the term during their time at Edwins, Respondent and Mrs. Williams were at Edwins prior to Respondent’s time at Choice. Thus, Proffer P-8a could not have put Respondent on notice that it was inappropriate for him to refer to Mrs. Williams as “baby-girl” while at Edwins. There is otherwise no competent evidence that Respondent referred to Mrs. Williams, or any other complainant, as “baby-girl” or any other nickname while at Choctaw. ALLEGED HARASSMENT OF A SCHOOL VOLUNTEER AND FAILURE TO FOLLOW DIRECTIVES NOT TO ENTER THE SCHOOL FRONT OFFICE AT CHOCTAW Harassment is governed by the School Board’s equity policy. Respondent acknowledged that he received a copy of the then existing Equity Policy in 2009. No evidence was presented as to what the Equity Policy consisted of in 2009. The Equity Policies presented at the final hearing reveal that two of the policies were adopted in 2015 and a third Equity Policy was adopted at the December 11, 2017, School Board meeting; the same School Board meeting where the superintendent’s recommendation to terminate Respondent was considered and approved. The alleged harassment of a school volunteer while at Choctaw appears to include encounters at football games, in the front office, and one time at Mrs. Williams’ home. Football Games The testimony at hearing revealed that Mrs. Williams was complaining about two encounters with Respondent at football games. Respondent’s duties at Choctaw required him to be present at football games. During the first encounter, Mrs. Williams and her son were in the stands watching a Choctaw football game. There is a fence that divides the stands. Respondent was on one side of the fence and he attempted to initiate a conversation with Mrs. Williams and her son. Respondent was saying “hello.” Mrs. Williams ignored Respondent and no conversation was undertaken. The second encounter occurred prior to a Pryor Middle School football game, which was taking place at Choctaw. Mrs. Williams, accompanied by her son, was setting up a parent- teacher organization table, and Respondent approached her and her son and initiated a conversation with her son. Mr. Hall knows Mrs. Williams’ son from his time at Edwins. Towards the end of the brief conversation, Respondent asked Mrs. Williams if he could speak with her for a “hot minute.” Mrs. Williams glared at him and then said “no,” and Respondent went about his way. Respondent presented credible testimony that a “hot minute” is slang for “a second” or “just for a minute.” There was no other evidence concerning the term “hot minute.” Front Office The email attached to Mrs. Williams’ Formal Complaint states that Respondent’s “approaching me at the front desk at Choctaw began to be a habit for Steve Hall.” The email further states that Mr. Hall was in the front office three times during the first month and a half of the 2017-2018 school year. In a separate email, Mrs. Williams documented an “encounter” that occurred on September 1, 2017. She does not indicate that Respondent had any contact with her, just that he was in the front office. In fact, on that occasion, Mrs. Williams turned her back to Respondent and Ms. Gloria Scaife, who was working in the front office, spoke with him. In an email, dated September 7, 2017, Ms. Scaife states that Respondent was in the office and asked her if she had seen Ms. Liz (who is the lead custodian). Respondent credibly explained that, on that occasion, he went to the front office to find his supervisor to obtain access to supplies. A second encounter in the 2017-2018 school year occurred in the mailroom. Mrs. Williams was in the mailroom when Respondent entered the room. Mrs. Williams testified that Respondent “cornered her in mailroom . . . that she couldn’t get around him . . . and that he was upset and very loud.” She further testified that she “could not move without touching [Respondent].” Mrs. Williams’ testimony conflicts with the other accounts of this encounter, which are more credible. Andy Snaith, dean of students for Choctaw, testified that there were other people in the mailroom and that he observed “what appeared to be a conversation with [Respondent] and Mrs. Williams. [Respondent's] back was to me. I believe he was doing the talking . . . .” When asked for more detail, Mr. Snaith stated: Q: And with other people in the mailroom, was there enough room, based on what you saw from Mrs. Williams, to back away from Mr. Hall? A: Yeah. It wasn't that crowded. Q: So there was plenty of room for her to move around? A: Yes. Q: Any idea what they were talking about? A: No. Q: How would Mrs. Williams get out of the mailroom, if she wanted to leave? A: There's two ways, I believe where she was standing, she could have gone to the left or to the right. The left is where the door that leads into the hallway, and then the other one leads to the main office. Consistent with the recollection of Mr. Snaith, Respondent testified that upon being told by Mrs. Sanders that Mrs. Williams was telling others that he was saying things to Mrs. Williams, he went to the office to ask Mrs. Williams if this was true. Respondent further testified: I asked [Mrs. Williams], calm and simple, [Mrs. Williams], have I talked to you, have I seen you? She said, no, I haven't seen you in three, four months. I said, that's all I wanted to know, because Liz is making a comment that I have said something to you and that was not true, and I walked away. It is unclear from the testimony as to exactly when this conversation took place, other than sometime early in the 2017-2018 school year. It is clear, however, that that occasion was the last time that Respondent was in the front office area at Choctaw. In her testimony, Mrs. Williams stated that she was not alleging or asserting that Mr. Hall had committed racial discrimination, nor that he made adverse remarks about her color, age, religious beliefs, ethnic origin, or marital status. And Mrs. Williams does not allege that Respondent made any comments about her body parts, the way her clothing fit, or asked to take photos of her while he was at Choctaw. Rather, those allegations allegedly occurred while Respondent was at Edwins, were unreported for years and could not be corroborated. There is no evidence that Respondent ever told Mrs. Williams to perform any improper act and then threatened her with consequences if she failed to comply. There is also no evidence that Respondent ever had authority to make employment decisions affecting Mrs. Williams. Mrs. Williams’ House Respondent first met Mrs. Williams prior to the time related in any of the allegations, when he went by her house to inquire about some tire rims that her husband had for sale. Mrs. Williams testified that in the summer of 2017, two weeks prior to the start of school, Respondent came by her house and parked at the curb. Her son alerted her that Respondent wanted to talk to her. She testified that she was upset because Respondent was there and she spoke with Respondent while he sat in his car. She could not recall what was discussed, but knows the conversation lasted only a couple of minutes, and that she then turned around and walked away.3/ Mrs. Williams stated that Respondent had been by her home on several different occasions but could not elaborate on any other incidents. Respondent acknowledged that he had gone by Mrs. Williams’ house because he does lawn service and was riding by her house. As he recalled, he noticed her son in the yard and asked him to get Mrs. Williams. Respondent and Mrs. Williams had a brief conversation. At no time during that conversation, or any other conversation, did Mrs. Williams tell Respondent to “stay away,” “leave me alone,” or make any other gesture or comment indicating that Respondent was to avoid her. Further, there is insufficient evidence to show that anyone from the School Board told Respondent to avoid contact with Mrs. Williams. Alleged Failure to Follow Directives Respondent acknowledged that shortly after starting at Choctaw, he had been verbally advised to avoid the front office. Mr. Mims, the School Board’s zone manager for custodial services, was the first person to advise Respondent to stay away from the front office. The Dean of Students Andy Snaith never told Respondent to avoid the front office. Even though told not to go to the front office, Respondent had to go by the front office every day. In that regard, Mr. Mims told Respondent that they could not keep him out of the school. Although Respondent understood that the request that he refrain from going to the front office may have been designed to minimize his contact with Mrs. Williams, there was no evidence or testimony presented by the School Board showing that Respondent was ever specifically told to avoid Mrs. Williams or why he was supposed to avoid the front office. Mr. Mims testified that he told Respondent to avoid the front office twice. He further testified that he was aware of Respondent being in the front office only three times over the course of three school years. When finding out about these situations, instead of having a face-to-face meeting, Mr. Mims would merely call Respondent on the phone. Respondent acknowledged going to the front office only twice in 2017, the first being while looking for Mrs. Sanders and the second being the conversation with Mrs. Williams when she was in the mailroom. There is no evidence of a written directive or other documentation advising Respondent to avoid the front office until a September 18, 2017, meeting between Respondent, Bill Smith, and Andy Mims. At that meeting, which was the first meeting between Mr. Smith and Respondent, Respondent was specifically advised to not go into the front office. Respondent has not been in the front office, nor has Bill Smith received a report that Respondent has been in the front office since their meeting in September 2017. Even though there were two instances where Respondent went to the the front office after speaking with Mr. Mims, Mr. Mims testified that while Respondent worked for him, he “met expectations as an employee.” Mr. Mims further testified that Respondent “did everything I asked him to do.” Mr. Mims statements are consistent with his written evaluations of Mr. Hall’s work performed in May 2017, May 2016, May 2015, and May 2014. The stated purpose of the evaluations is to “support decisions concerning employee discipline, promotion and improvement.” Respondent’s evaluations during the pertinent time period do not support the discipline sought in this case. To the contrary, they conclude that he is a hard worker and that he meets the expectations of his supervisors. Even when he allegedly received prior discipline while at Choice during the 2014-2015 school year, Respondent was not placed on a “success plan” for improvement and, in fact, received a “meets expectations” evaluation. The evaluations written by Respondent’s supervisors conclude that Respondent “Demonstrates a willingness to accept authority and direction; Demonstrates appropriate interactions with staff, clients, students and/or parents; Demonstrates appropriate oral skills when communicating with others; [and] Demonstrates appropriate relations with supervisor and peers.” Recognizing that there were issues at Choctaw unrelated to Mrs. Williams, Respondent requested transfers to another school. These transfer requests began during the 2016-2017 school year and continued during the beginning of the 2017- 2018 school year. Even though there were positions available in the schools where Respondent desired to transfer, his supervisor, Mr. Mims, denied Respondent’s requests for transfers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Okaloosa County School Board: Dismissing the allegations against Respondent in this case and rescinding any discipline imposed thereby; Reinstating Respondent’s employment with the Okaloosa County School Board as though there was no break in service of his employment; Restoring all salary, benefits, and rights from the date of his last paid workday to the date of his reinstatement, plus interest from the date that any such pay or benefit was withheld, as appropriate under applicable law; less any earnings or benefits that Respondent received during the time between his termination and the time of his reinstatement. DONE AND ENTERED this 9th day of November, 2018, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 November, 2018.
The Issue The basic issue in this case is whether the Respondent should be dismissed from his employment as a teacher. The Petitioner seeks such dismissal pursuant to Section 231.36, Florida Statutes, on the basis of allegations that the Respondent is guilty of: (a) violation of the Principles of Professional Conduct, (b) immorality, (c) misconduct, (d) willful neglect of duties, and (e) moral turpitude. The Respondent denies any misconduct.
Findings Of Fact Based on the evidence received at the hearing and on the parties's stipulations, I make the following findings of fact: Facts stipulated to by the parties Virgil L. Morgan is the duly appointed Superintendent of Schools of Broward County, Florida, and is legally authorized to represent to the School Board of Broward County, Florida, pursuant to statute, that any member of the instructional and/or administrative staff be dismissed from or with the Broward County School System. The address of Virgil L. Morgan is 1320 Southwest Fourth Street, Fort Lauderdale, Broward County, Florida. The address of the School Board of Broward County, Florida, is 1320 Southwest Fourth Street, Fort Lauderdale, Broward County, Florida. The Respondent, Marion Wright, is an employee of the School Board of Broward County, Florida, holding a continuing contract of employment since December 5, 1968, and has currently been employed at Nova High School, 3600 College Avenue, Davie, Broward County, Florida, as an American History and Geography teacher. The last known address of the Respondent is 151 Northwest 33rd Terrace, Fort Lauderdale, Broward County, Florida. Other general facts While employed at Nova High School, the Respondent was also the coach of the girls junior varsity basketball team. Facts regarding motor vehicle operations The Respondent's ex-students and assistant coaches often moved his car from one place to another on the Nova campus during the school day. These ex- students and assistant coaches were licensed drivers. The Respondent sometimes also permitted several students who were seniors and who were licensed drivers to move his car while it was on campus. It is not unusual for teachers at Nova High School to permit students to drive their cars. There is no credible competent substantial evidence in this case that the Respondent permitted unlicensed students to operate his motor vehicle. On January 22, 1988, Andrea Session and Kim Williams, both students at Nova High School who were also members of the girls basketball team, went to the Respondent's classroom shortly after first period began. Neither of the two girls had a driver license. Kim Williams asked the Respondent for the keys to his pickup truck in order to retrieve her school books which were locked in the truck. The Respondent gave the keys to the two girls and they left. It was not uncommon for the girls to leave their books in the Respondent's truck or car, because the Respondent would frequently drive these two girls (and others) from their home to early morning basketball practice before school. They would often leave their school books in the Respondent's vehicle during basketball practice and pick them up later. On January 22, 1988, while in possession of the keys to the Respondent's pickup, Kim Williams attempted to move the pickup and ran into a parked car in the school parking lot. The Respondent did not authorize Kim Williams to drive his pickup truck on January 22, 1988. Facts regarding taking students out of class The Respondent never requested that Kim Williams, Andrea Session, or any other student or member of his basketball team be excused from other classes, except as was consistent with being excused from class on game days. The Respondent did not write passes requesting that students be excused from other classes. Nor did he usually permit students without passes to remain in his classroom. When Kim or Andrea would come to the Respondent's class without a pass, the Respondent would usually ask them to return to their class. On occasion, Kim and Andrea would skip classes and not go to the Respondent's classroom. There is no credible competent substantial evidence in this case that the Respondent arranged for the unauthorized or illegal removal of any student from scheduled class periods. There is no credible competent substantial evidence in this case that the Respondent provided females students on his basketball team with passes to remove them from their regular scheduled classes on the days that basketball games were scheduled in order for them to rest or relax for the game. Facts regarding transportation of students off campus and to liquor stores The Respondent frequently transported students from their homes to early morning basketball practice. The Respondent has taken adult female assistant coaches to the Double Feature Liquor Store, and to other liquor stores, and has purchased beer for them on occasion. There is no credible competent substantial evidence in this case that the Respondent took students to a liquor store, bought alcoholic beverages, and consumed alcoholic beverages with students. There is no credible competent substantial evidence in this case that the Respondent took students off campus on personal errands during the students' scheduled class periods. Facts regarding soliciting false statements and submitting a false affidavit After the Respondent became aware that he was being accused of providing alcoholic beverages to two students, he went to see Ms. Bonnie Session, the mother of one of the students. The Respondent told Bonnie Session about the situation he was in and asked her to sign a statement on his behalf. Thereafter, Adrienne Session, an older daughter of Ms. Session, called the Respondent and told him she had something for him from her mother. Adrienne gave the Respondent a written statement that purported to be signed by Bonnie Session. The Respondent took the statement to a notary public and asked that it be notarized. The notary called on the telephone and spoke to someone she believed to be Bonnie Session. The person to whom the notary spoke acknowledged having signed the statement. The notary then notarized the document and gave it back to the Respondent. At a later date, under circumstances that are not at all clear, Bonnie Session and her two daughters went to the same notary, after having been guided there by the Respondent, and had some additional documents notarized. The Respondent made some efforts, directly and indirectly, to obtain exculpatory statements from several people, but the nature of those efforts cannot be discerned from the credible evidence in this case. There is no credible competent substantial evidence in this case that the Respondent encouraged any students to falsify their accounts of any matters related to the issues in this case. There is no credible competent substantial evidence in this case that the Respondent intentionally distorted, or caused to be misrepresented, any facts regarding an affidavit that was purportedly signed by Bonnie Session.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the School Board of Broward County issue a final order in this case dismissing all administrative charges against the Respondent, Marion Wright, and reinstating him with full back pay. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of June 1989. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4734 The following are my specific rulings on all of the proposed findings of fact submitted by all parties. To facilitate an understanding of the rulings which follow, attention is directed to the fact that, for the most part, the testimony of the two principal witnesses against the Respondent has been found to be unworthy of belief and to be an insufficient basis for findings of fact. The two principal accusers have both, while under oath, changed major portions of their stories on more than one occasion. The credibility of their stories is also impaired in large part by the fact that the stories told by the two principal witnesses are inconsistent in a number of telling details, and those stories also conflict with the testimony of other witnesses who are much more worthy of belief. It is also noted that the candor of Respondent's testimony was not without its own tarnish in places. While the Respondent's denial of the charges against him has been accepted in substance, this is largely because of the absence of believable evidence in support of the charges rather than because of any great reliance on the Respondent's candor. Findings proposed by Petitioner: Paragraph 1: Accepted. Paragraph 2: Rejected as not supported by credible competent substantial evidence and as contrary to the greater weight of the believable evidence. Paragraph 3: First sentence rejected as not supported by credible competent substantial evidence and as contrary to the greater weight of the believable evidence. Second sentence accepted. Paragraph 4: For the most part, rejected as not supported by credible competent substantial evidence and as contrary to the greater weight of the believable evidence. It is accepted that there was an on-campus accident involving Respondent's vehicle. Paragraph 5: Rejected as irrelevant in light of other evidence in the record. Paragraph 6: Rejected as constituting legal argument rather than proposed findings of fact. Paragraph 7: Rejected as irrelevant. [The presentation of the testimony of the Assistant State Attorney appears to have been primarily for the purpose of vouching for the truthfulness of the other witnesses against Respondent. Such vouching is an inappropriate form of proof. See Fuller v. State, 450 So.2d 182, 184 (Fla. 5th DCA 1989).] Paragraph 8: Rejected as not supported by credible competent substantial evidence and as contrary to the greater weight of the believable evidence. Findings proposed by Respondent: Paragraph 1: First sentence rejected as subordinate and unnecessary details. Remainder accepted in substance with a few unnecessary details omitted. Paragraphs 2 and 3: Rejected as subordinate and unnecessary details. Paragraph 4: Accepted in substance with some unnecessary details omitted. Paragraphs 5 and 6: Accepted in substance with some unnecessary details omitted. Paragraph 7: Accepted in substance. Paragraph 8: Rejected as a summary of testimony rather than proposed findings of fact. In any event, the subject matter of the summary consists of subordinate and unnecessary details. Paragraphs 9, 10, 11, and 12: Rejected as subordinate and unnecessary details. Paragraph 13: Accepted in substance. Paragraphs 14 and 15: Rejected as subordinate and unnecessary details. Paragraphs 16 through 30: Rejected as constituting, for the most part, a summary of the history of many of the reasons for not making findings of fact rather than actual proposed findings. (Many of the details in this summary form the basis for the conclusion that the testimony of the two principal witnesses against the Respondent is unreliable.). COPIES FURNISHED: Charles T. Whitelock, Esquire Whitelock & Moldof 1311 Southeast Second Avenue Fort Lauderdale, Florida 33316 Thomas W. Young, III, Esquire General Counsel, FEA/United 208 West Pensacola Street Tallahassee, Florida 32301 Virgil L. Morgan, Superintendent Broward County School Board 1320 Southwest Fourth Street Fort Lauderdale, Florida =================================================================
Conclusions This cause coming on to be heard before THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA, at its meeting conducted on August 16, 2011, to consider the Recommended Order, entered on June 21, 2011 by the Honorable Claude B. Arrington, Administrative Law Judge of the State of Florida, Division of Administrative Hearings. THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA, having considered the Recommended Order, to which neither party filed exceptions, and being fully advised in the Premises: IT IS THEREUPON ORDERED AND ADJUDGED BY THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA, that: 1. The Recommended Order is adopted in its entirety and incorporated herein by reference; and 2. RACHEL VON HAGEN’S professional service contract with The School Board of Broward County, Florida is terminated. Filed September 13, 2011 8:54 AM Division of Administrative Hearings Broward County School Board vs. Rachel Von Hagen DOAH Case Number: 11-0567 SBBC AGENDA 081611H02-Final Order aa AND ORDERED in Fort Lauderdale, Broward County, Florida this \ ( aay of hag » 2011. THE SCHOOL BOARD OF BROWARD Za Aa By: ia iW. Williams, Chair COPIES FURNISHED: CHARLES T. WHITELOCK, ESQ. Charles T. Whitelock, P.A. 300 Southeast 13" Street Fort Lauderdale, Florida 33316 MARK HERDMAN, ESQ. Herdman and Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater Florida 33761 STATE OF FLORIDA, DIVISION OF ADMINISTRATIVE HEARINGS The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Broward County Schoo! Board vs. Rachel von Hagen DOAH Case Number: 11-0567 SBBC AGENDA 081611H02-Final Order APPEAL OF FINAL ORDER Pursuant to Section 120.68, Fla. Sta., a party to this proceeding may seek judicial review of this Final Order in the appropriate district court of appeal by filing a notice of appeal with Noemi Gutierrez, Agency Clerk, Official School Board Records, The School Board of Broward County, Florida, 600 Southeast Third Avenue — 2"! Floor, Fort Lauderdale, Florida 33301, on or before thirty (30) days from the date of this Final Order. A copy of the notice and a copy of this Final Order, together with the appropriate filing fee, must also be filed with the Clerk, Fourth District Court of Appeal, 1525 Palm Beach Lakes Boulevard, West Palm Beach, Florida 33401-2399. If you fail to file your notice of appeal within the time prescribed by laws and the rules of court, you will lose your right to appeal this Final Order. fritz/allwork/doah/employment/vonhagen Rachel final order-final
The Issue Whether Respondent, a school teacher employed by Petitioner pursuant to a professional services contract, committed the offenses alleged by the Petitioner in its Petition for Dismissal and, if so, the penalties that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Respondent was employed by Petitioner pursuant to a professional services contract. Respondent was first employed by Petitioner in 1992. For the school year 1995-96, Respondent was assigned as a special education teacher at John I. Leonard High School, one of the public schools in Palm Beach County. In addition to his teaching duties, Respondent was the coach of the Junior Varsity baseball team. At all times pertinent to this proceeding Respondent was a member of the CTA, the union that represents instructional staff in the Palm Beach County School District. Effective January 18, 1995, the Petitioner adopted School Board Policy 3.26 as a rule. This rule was drafted by James Kelly, an attorney who is employed by Petitioner as the chief of its police force. It was the intent of Chief Kelly to draft a "zero tolerance" rule, prohibiting employees and others from bringing firearms on school property. It was the intent of Chief Kelly in drafting the rule that the employment of any employee who violated that prohibition would be suspended until that employment could be terminated. Rule 3.26 provides, in pertinent part, as follows: It is the intent of this Policy to clearly state that possession of firearms will not be tolerated on School District property. Definitions: "Firearm" means any weapon (including a starter gun or antique firearm) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any destructive device; or any machine gun.1 "Employee" means any person hired by the School Board after completing the personnel procedures required by the School Board. "Independent Contractor" means any person or company other than a School District employee, who provides goods and/or services to the School District and enters into a contracted agreement with the School Board. "Visitor" means any business or personal invitee including, but not limited to, parents, volunteers, family members of School District employees or friends of School District Employees. Any School District employee found to have brought a firearm on School District property shall be subject to suspension and dismissal in accordance with the procedures set forth in School Board Policy 3.27.2 All Contract Agreements with Independent Contractors shall provide that, if any employee of an Independent Contractor or Sub-Contractor is found to have brought a firearm on School District property, said employee will be terminated from the School Board project by the Independent Contractor or the Sub-Contractor. If the Sub-Contractor fails to terminate the employee, the Sub- Contractor's Agreement with the Independent Contractor for the School Board project shall be terminated. If the Independent contractor fails to terminate said employee or fails to terminate the Agreement with the Sub- Contractor who fails to terminate said employee, the Independent Contractor's Agreement with the School Board shall be terminated. Except to the extent allowed by law, any visitor found to have brought a firearm on School District property shall be notified that all subsequent visits to School District property will be by an appointment only, and that visits without prior appointment may result in a criminal action for trespass. This Policy does not apply to any Law Enforcement Officer . . . Article II, Section M of the collective bargaining agreement between the CTA and the School Board, entitled "Discipline of Employees (Progressive Discipline)," provides, in pertinent part, as follows: Without the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of this Agreement. Further, an employee shall be provided with a written notice of wrongdoing, setting forth the specific charges against that employee prior to taking any action. * * * Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Section, an employee maybe reprimanded verbally, reprimanded in writing, suspended with pay, suspended without pay or dismissed upon the recommendation of the immediate supervisor to the Superintendent. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation. Such written notation shall not be placed in the employee's personnel file and shall not be used to the further detriment of the employee after twelve (12) months of the action/inaction of the employee which lead to the notation. Written Reprimand. A written reprimand may be issued to an employee when appropriate in keeping with provisions of this Section. Such written reprimand shall be dated and signed by the giver and the receiver of the reprimand and shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this agreement. Suspension With Pay. A suspension with pay may be issued to an employee when appropriate in keeping with provisions of this Section, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Section. The notice and specifics of the suspension with pay shall be placed in writing, dated and signed by the giver and the receiver of the suspension. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee's personnel file in keeping with Article II, Section B of this Agreement. Suspension Without Pay. A suspension without pay may be issued to an employee, when appropriate, in keeping with provisions of this Section , including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Section. The notice and specifics of the suspension without pay shall be placed in writing, dated and signed by the giver and the receiver of the suspension. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement. Dismissal. An employee may be dismissed (employment contract terminated or non-renewed) when appropriate in keeping with provisions of this Section, including just cause and applicable laws. An employee against whom disciplinary action(s) has been taken may appeal through the grievance procedure. If the disciplinary action(s) include either a suspension or a dismissal, the grievance shall be initiated at STEP TWO. At the times pertinent to this proceeding, Respondent had a concealed weapon's permit issued by the Florida Department of State's Division of Licensing. Respondent received instructions and materials when he obtained his concealed weapons permit in Florida that clearly advised him that a concealed weapons permit does not authorize the possession of a concealed weapon on school premises. Respondent knew or should have known that his concealed weapon's permit did not authorize him to carry a firearm on school property. At all times after March 29, 1996, Respondent knew or should have known that school employees were prohibited from bringing firearms on school property. Prior to May 1, 1996, Respondent knew or should have known of the School Board's Rule 3.26.3 Respondent knew or should have known that bringing a firearm on school property would violate this rule. March 29, 1996, was a teacher planning day. On that day Respondent brought on school property a firearm that he had recently purchased so he could show the firearm to Officer Charles C. Edwards, a member of the School Board's police force. Officer Edwards told Respondent he could not have a firearm on school property. As of May 1, 1996, the junior varsity baseball season was over for John I. Leonard High School, but the varsity team was in the post-season playoffs. On May 1, 1996, the varsity team was involved in a game that would eliminate the loser from the playoffs. The game was scheduled to begin at 7:00 p.m. on the campus of John I. Leonard. At the request of the varsity baseball coach, Respondent agreed to scout a potential playoff opponent that was playing a game in Plantation, Florida, at 7:00 p.m. When Respondent left his house on the late afternoon of May 1, 1996, he intended to make a bank deposit prior to going to John I. Leonard High School to pick up the forms that he was to fill out as he scouted the potential opponent. The bank deposit was for the Men's Baseball Association of Palm Beach County and consisted of more than $1,000 in cash and checks. It was Respondent's practice to carry a firearm on his person when he had a large sum of money to be deposited. Consistent with that practice, Respondent took his firearm when he left his house on May 1, 1996, and drove to his bank's drive- in window. At all times on May 1, 1996, pertinent to this proceeding, Respondent had his firearm in a holster. When Respondent first entered his vehicle, he placed the holstered firearm in a fanny pack and placed the fanny pack containing the holstered firearm under the seat of his vehicle. Consistent with his practice, when Respondent got to the line for the drive-in window, he removed the gun from the pouch and placed the holstered firearm in his lap. Because he was running late and the line was moving slowly, Respondent pulled out of the line of cars without making his deposit and headed for John I. Leonard High School to pick up the forms he needed. He clipped the holstered firearm to his belt between his body and his pants at the rear of his right hip. His shirt tail covered the firearm. Respondent also had his cellular phone and beeper clipped to his belt. The cash was in the right front pocket of his pants. Respondent arrived at John I. Leonard High School a few minutes before 6:00 p.m. on May 1, 1996. He parked his vehicle on school grounds in the parking lot near the school gymnasium and approached the gate to the ball field area. Respondent intended to go to the office of the varsity baseball coach to get the forms he needed to scout the game in Plantation. The coach's office was located inside the ball field area above the concession stand. Tickets to the game were sold at a table that was set up at the gate. As Respondent approached the gate, Gary Zaniewski, Jack McLaughlin, and Scott Siegel were present at the ticket table. Mr. Zaniewski was, as of May 1, 1996, the father of a varsity baseball player and served as the president of the John I. Leonard High School Baseball Booster Club. Mr. McLaughlin and Mr. Siegel were school board employees. As Respondent passed by the table, Mr. Zaniewski noticed that Respondent was wearing a firearm and reminded him of that fact. Mr. Zaniewski told Respondent that he did not think it was appropriate for him to have a firearm on school property. Respondent immediately turned around, went back to his vehicle, placed the holstered firearm in the pouch under the seat, and locked the car. He thereafter went to the coach's office, got the forms he needed, and went to Plantation to scout the game. The firearm was in Respondent's vehicle during the few minutes it took him to get the forms from the coach's office. During the time Respondent was on school grounds, he did not remove the firearm from the holster, point it at anyone, shoot anyone or anything, threaten or harm anyone, or engage in any kind of confrontation. While there were members of the baseball team at the field warming up, those players were not in close proximity to Respondent. For the calendar year 1995, there were 169 reported thefts from motor vehicles located on School Board property and 23 motor vehicles stolen from School Board property. The presence of a firearm locked in a vehicle on school property presents a real and immediate danger that Rule 3.26 was enacted to prevent. Respondent testified that he was in a hurry on May 1, 1996, and simply forgot that he had the firearm on his person when he approached the gate to the baseball field. Although there was testimony that a person would not forget he was carrying such a weapon, the testimony of the Respondent is found to be credible. Consequently, it is found that he forgot he had the firearm on his person when he first exited his vehicle on school property on May 1, 1996. There can be little doubt, however, that Respondent was aware that he had a firearm with him when he drove on school property. The Respondent's holster did not have any device to impede unauthorized or inadvertent removal of the firearm. In contrast, the type holsters used by Petitioner's police force requires three separate actions in order for the gun to be removed from the holster. Respondent's careless possession of a firearm that was clipped to his belt in an unsafe holster presented a real and immediate danger that Rule 3.26 was enacted to prevent. Rule 3.26 is a reasonable exercise of the School Board's authority. Despite the events of May 1, 1996, Respondent was given a professional services contract by the School Board for the year 1996-97. On the recommendation of the Superintendent of Schools, the School Board suspended Respondent's employment effective September 19, 1996, and voted to institute these proceedings to terminate his employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order that finds that Respondent violated the provisions of Rule 3.26 as alleged by Petitioner and suspends his employment for a period of one year. DONE AND ENTERED this 1st day of July, 1997, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 1997.
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 Respondent's alleged violation of Monroe County District School Board Policy Rule 2.5.1 on or about January 8, 1976, by possession of marijuana on school grounds.
Findings Of Fact Respondent is a 16 year old, 11th grade high school student attending Marathon High School, Marathon, Florida. On January 8, 1976, Respondent was found in possession of 32 grams of marijuana on the grounds of Marathon High School. (Stipulation of the Parties) On April 21, 1976, the Circuit Court of Monroe County, Florida, accepted Respondent's plea of guilty to a charge of possession of marijuana, withheld adjudication as a delinquent and placed him on probation for a period of six months under the supervision of a Youth Counselor, State of Florida Youth Services Division. Conditions of probation included a curfew, weekly meetings with the counselor and part-time employment while attending school. (Testimony of Seale) At the time of his apprehension, Respondent admitted possession of marijuana to authorities and cooperated with them by divulging its source. Respondent denies any prior arrests and, in the opinion of the Youth Counselor, he is not likely to commit an offense of this nature in the future. He has evidenced remorse and desires to continue attendance at the high school. The Youth Counselor feels that it would serve no useful purpose to prevent him from further attendance. (Testimony of Seale, Collins) Respondent is not a problem student nor is he considered to be incorrigible or a socially maladjusted child. An alternative to expulsion exists at Marathon High School in the form of a rehabilitative program for socially maladjusted children that is supervised by one instructor who exercises close supervision over the students in the program. A student who is expelled from high school may enter an evening adult education program whereby he can acquire necessary academic credits by attending evening classes. The principal of Marathon High School recommends that Respondent be expelled because of the seriousness of his offense as evidenced by the unusually large amount of marijuana. (Testimony of Gradick)
Recommendation That Respondent, Gordon Collins, be expelled from Marathon High School, Marathon, Florida, effective June 8, 1976, for violation of Monroe County District School Board Policy Rule 2.5.1, by possession of marijuana on the school grounds on or about January 8, 1976. DONE and ENTERED 14th day of May, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1976. COPIES FURNISHED: Glenn Archer, Jr. Assistant Superintendent Post Office Drawer 1430 Key West, Florida 33040 Peter Lenzi, Esquire Post Office Box 938 Marathon, Florida 33050
The Issue Whether the Superintendent of Hamilton County Schools recommended that the Respondent enter into a professional services contract with the Petitioner, Gene Starr?
Findings Of Fact Gene A. Starr has been continuously employed by the School Board of Hamilton County as an agriculture teacher since the 1985-1986 school year. On March 18, 1988, the principal of Hamilton County High School recommended to the Superintendent of the Respondent that the Respondent enter into a professional service contract with Mr. Starr. At a meeting of the Respondent held on April 12, 1988, the Superintendent made recommendations to the Respondent concerning reappointment of a number of employees. The Superintendent specifically recommended that Mr. Starr receive a professional service contract. A motion was made and seconded by members of the Respondent to accept the recommendations of the Superintendent. The following events took place, as reported in the minutes of the Respondent's April 12, 1988, meeting: At the Board's request, Mr. Lauer [the Superintendent] appeared to discuss the recommendation of Gene Starr. The consensus of the Board was that the agriculture program has not progressed as per expectations, and that Mr. Starr's coaching duties conflict with his duties as an agriculture teacher. It was the opinion of some members that there should be more emphasis on crop production and harvesting and on supervision of home projects. Following the discussion of the Superintendent's recommendation concerning Mr. Starr, the Superintendent "asked for and was granted permission to withdraw his recommendation on & Mr. Starr and to resubmit another recommendation on him at a subsequent meeting." The Superintendent then "amended his recommendation to omit Mr. Starr" and the motion to accept the Superintendent's recommendations was amended to reflect this change. The Respondent then approved the Superintendent's recommendations, as amended. The Respondent did not consider whether there was "good cause" to reject the Superintendent's recommendation concerning Mr. Starr. At a May 10, 1988, meeting of the Respondent the Superintendent recommended that Mr. Starr be reappointed to an instructional position for the 1988-1989 school year and that Mr. Starr serve in the instructional position for a fourth year on annual contract instead of being granted a professional services contract. The recommendation was withdrawn on advice of counsel for the Respondent. At a May 23, 1988, meeting of the Respondent Mr. Starr and the Respondent agreed that Mr. Starr would agree to a fourth year on annual contract, "subject to and without prejudice to a formal hearing on his right to a professional services contract." Mr. Starr was informed of this action in a letter dated May 31, 1988. Mr. Starr filed a Petition for a Formal Hearing challenging the Respondent's action with regard to the Superintendent's recommendation to the Respondent that Mr. Starr receive a professional services contract. In the Petition, Mr. Starr specifically requested the following relief: That the matter be assigned to the State of Florida Division of Administrative hearings [sic] for the assignment of a hearing officer. That a formal hearing be held on this particular petition pursuant to Sec. 120.57(1), Fla. Stat. as to Petitioner's entitlement to employment under a professional services contract.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the recommendation of the Superintendent of Hamilton County Schools be accepted by the School Board of Hamilton County unless the School Board of Hamilton County concludes that there is good cause for rejecting the recommendation. DONE and ENTERED this 18th day of April, 1989, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4116 The Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 3-9. 3 10. 4-8 Statement of events which occurred at the formal hearing and some of the arguments advanced by the parties at the formal hearing. COPIES FURNISHED: Edwin B. Browning, Jr., Esquire Post Office Drawer 652 Madison, Florida 32340 Donald K. Rudser, Esquire Post Office Drawer 151 Jasper, Florida 32052 Owen Hinton, Superintendent Hamilton County School Board Post Office Box 1059 Jasper, Florida 32052 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
