BETTY STEVENS HUTSON, APPELLANT,
v.
THOMAS L. CASEY, AS SUPERINTENDENT OF THE BRADFORD COUNTY SCHOOL SYSTEM, APPELLEE
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The court held that the School Board failed to state with particularity its reasons for increasing the recommended penalty, violating statutory requirements.
[1] An agency may not increase or reduce a hearing officer's recommended penalty without reviewing the complete record and stating with particularity its reasons for the acti…
[2] An agency's written order must cite to the record when justifying a decision to alter a hearing officer's recommended penalty.
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Join FLexlaw to unlock all legal intelligenceAn instructor was recommended for suspension after a hearing officer found grounds for immorality and misconduct. The School Board rejected the recomm…
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NIMMONS, Judge.
Hutson, a cosmetology instructor at the Bradford-Union Area Vocational Technical Center, appeals from an order of the Bradford County School Board dismissing her. We vacate the order and remand for the entry of an amended order. The Bradford County School Superintendent instituted dismissal proceedings against Hutson by filing a petition for dismissal alleging a number of counts of immorality and misconduct in office.1 She requested and received a hearing before a hearing officer of the State Division of Administrative Hearings.
After an evidentiary hearing, the hearing officer entered a recommended order. The hearing officer found that the Superintendent had only proven three of the twenty grounds alleged, namely: (1) that Hutson submitted a false per diem reimbursement request with the intent to obtain $50.00 she was not entitled to; (2) that she requested students to lie about an incident in which a patron in cosmetology class was burned; and (3) that she requested students to lie about the date they returned from a trade show to insure that they would receive the total allowable credit for the field trip. Based on those three instances of immorality and misconduct in office, the hearing officer recommended a penalty of suspension for one school year with reinstatement for the 1985-86 year. The superintendent filed exceptions to the recommended order and a special meeting of the School Board was scheduled to consider the recommended order and exceptions.
At the special meeting, counsel for appellant and the Superintendent presented their arguments with respect to the recommended order and exceptions. No new evidence was received. The board adopted a motion by one of its members to reject a finding of fact.2 They then adopted the rest of the findings of fact and conclusions of law. Finally, a motion was made and approved to increase the recommended penalty by dismissing appellant. The only verbal expression made at the meeting by the Board for increasing the penalty was member Hall’s statement, “I feel as a school board member I disagree with the penalty on her findings of fact.” The written order subsequently entered by the Board stated as its reason for rejecting the penalty:
The findings of fact and conclusions of law set forth several acts of immorality and misconduct in office. Such actions are, by statute, grounds for dismissal and such is the appropriate penalty in this instance.
Appellant argues that current law requires the School Board to specify with more particularity its reasons for rejecting the hearing officer’s recommended penalty. We agree. Chapter 84-173, Section 2, Laws of Florida, amended Section 120.-57(l)(b)9 in the following manner (only the relevant portion of the statute is included):
The agency may accept or reduce the recommended penalty in a recommended order, but may not reduce or increase it without a review of the complete record and without stating with particularity its reasons therefor in the order, by citing to the record in justifying the action.
The language added by the 1984 amendment has apparently not yet been the subject of any appellate decision. However, it is apparent to us that the reasons for increasing the penalty were not articulated by the School Board with the specificity contemplated in the amended language. We therefore remand this case to the School Board for the purpose of entering an amended order which complies with the requirements of the above quoted language of Section 120.57(l)(b)9, assuming that the Board, on remand, chooses not to accept the hearing officer’s recommended penalty. In its discretion, the Board may, but shall not be required to, entertain further arguments or submissions from the parties on the subject of the penalty to be imposed.
Our opinion should not be read as expanding the scope of judicial review on the substantive question of whether the penalty exacted — assuming the penalty to be within the range allowable by law — is appropriate punishment for the misdeeds of the person proceeded against. The apparent purpose of the above statute, as amended, is to provide some assurance that the agency has gone through a thoughtful process of review and consideration before making a determination to change the rec ommended penalty. As long as this statutory procedural requirement is met, we are not authorized to review the penalty. Florida Real Estate Commission v. Webb, 367 So. 2d 201 (Fla.1979); Fresh Start v. Division of Alcohol, Beverage and Tobacco, 469 So. 2d 244 (Fla. 2nd DCA 1985); Clark v. Department of Professional Regulation, 463 So. 2d 328, 333 (Fla. 5th DCA 1985).
We have considered the other issues raised by appellant and find them to be without merit.
VACATED AND REMANDED.
SHIVERS and JOANOS, JJ., concur. . Fla.Admin.Code Rule 6B-4.09(2) provides:
Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual’s service to the community.
Rule 6B-4.09(3) provides:
Misconduct in office is defined as a violation of the Code of Ethics of the education profession so serious as to impair the individual’s effectiveness in the school system.
. Although the Board erred in rejecting that finding of fact, counsel for appellant candidly acknowledged at oral argument that such rejection did not entitle appellant to reversal in view of the Board’s acceptance of the hearing officer’s conclusion of law related to that finding.
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Fla. Parole Comm'n v. Taylor, 132 So. 3d 780 (Fla. 2014)…ency fails to set out the reasoning for its decision with sufficient particularity, the remedy is to quash and remand the case so that the agency has an opportunity to add the required statement of reasoning to its order. See, e.g., Hutson v. Casey, 484 So. 2d 1284, 1285 (Fla. 1st DCA 1986) (“We therefore remand this case to the School Board for the purpose of entering an amended order which complies with the requirements of [section 120.57(1) ], assuming that the Board, on remand, chooses not to accept the he…
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Pedro F. Bernal, M.D. v. Dep't of Prof'l Reg., 517 So. 2d 113 (Fla. 3d DCA 1987)…bed no significance to it in affixing the appropriate punishment. Thus the board’s reliance on the point constitutes no more than a mere disagreement with the recommendation, which may not form the basis of an increased penalty. See Hutson v. Casey, 484 So. 2d 1284 (Fla. 1st DCA 1986). . Presumably, upholding one but not the other ground for "departure" from the officer’s recommendation would require a remand to determine if the board would increase the penalty on the basis of that reason alone. Albritton v.…
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Earl B. Britt, M.D. v. Dep't OF Prof'l Reg., 492 So. 2d 697 (Fla. 1st DCA 1986)…he order, by citing to the record and justifying the action. A recommended penalty thus may not be increased merely upon an agency’s disagreement with the recommendation, absent a statement of specific reasons for the increase. See Hutson v. Casey, 484 So. 2d 1284 (Fla. 1st DCA 1986). But in the present case the agency’s reasons for increasing the recommended penalty were expressly stated and it was indicated that this disposition was reached upon “a complete review of the record.” The nature of the stated re…1 / 2
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fla. Real Est. Comm'n & Casimir Szpak v. Webb, 367 So. 2d 201 (Fla. 1978)
- Neubauer v. Hort Soper, 463 So. 2d 328 (Fla. 4th DCA 1985)
- Daniel J. Clark, M.D. v. Dep't of Prof'l Reg., 463 So. 2d 328 (Fla. 5th DCA 1985)
- Fresh Start, Inc. v. Division of Alcoholic Beverages and Tobacco, 469 So. 2d 244 (Fla. 2d DCA 1985)