WITHERS v. BLOMBERG

• Decision Date: 04 August 2010
• Docket Number: No. 2D09-3750.,2D09-3750.
• Citation: 41 So.3d 398
• Parties: Patti WITHERS, Appellant, v. Jeanine BLOMBERG, as Commissioner of Education, Appellee.
• Court: Florida District Court of Appeals

41 So.3d 398

Patti WITHERS, Appellant, v. Jeanine BLOMBERG, as Commissioner of Education, Appellee.

No. 2D09-3750.

District Court of Appeal of Florida, Second District.

August 4, 2010.

COPYRIGHT MATERIAL OMITTED.

Melissa C. Mihok of Kelly & McKee, P.A., Tampa, for Appellant.

Edward T. Bauer of Brooks, LeBoeuf, Bennett, Foster, & Gwartney, P.A., Tallahassee, for Appellee.

MORRIS, Judge.

In May 2006, Patti Withers, a foreign language teacher at Pasco High School, attempted to end her own life while on the school campus at the end of the school day. As a result of this incident, the commissioner of education brought an administrative complaint seeking sanctions against Withers' teaching certificate; the commissioner alleged that the incident was witnessed by students and other faculty members. Withers denied the allegations and requested a formal hearing before an administrative law judge (ALJ). At the hearing in January 2009, the ALJ determined that while there was sufficient evidence to prove that the incident occurred on campus, there was insufficient evidence to prove that it occurred in the presence of students and faculty. The ALJ recommended that Withers be found guilty of misconduct, receive a letter of reprimand, and be placed on probation for two years. Although the Pasco County superintendent of schools requested that Withers also be subject to participation in the Recovery Network Program (RNP), the ALJ rejected that request. No written exceptions to the ALJ's proposed order were filed, and the recommended order was submitted to the Education Practices Commission (EPC) for consideration.

At the final hearing before the EPC, the commissioner requested that the ALJ's recommended order be clarified to include the requirement that Withers participate in the RNP. Although Withers pointed out that participation in the RNP was not contained in the recommended order, she did not argue that the EPC was prohibited from including that condition due to the commissioner's failure to file written exceptions to the recommended order within fifteen days, as required by section 120.57(1)(k), Florida Statutes (2008).

In July 2009, the EPC issued its final order, adopting the ALJ's recommended order but also requiring that Withers "engage in counseling with a RNP-approved licensed Florida provider until discharged from that treatment."

In this appeal, we must decide whether the EPC erred by modifying the ALJ's recommended order where the EPC failed to state its reasons for doing so with particularity. The parties conceded at oral argument, and we agree, that this case must be reversed and remanded to allow the EPC to review the complete record and to state the reasons for the modification with particularity in its written order, if the EPC again finds that a modification of the penalty is warranted. In reversing, we hold that the EPC's failure to state the reasons for the modification in the written order under review constituted fundamental error.

Analysis

Our review is governed by section 120.68(7)(c), Florida Statutes (2009), which provides that a reviewing court may set aside agency action when it finds that the action is dependent on a material error in procedure. See also Big Bend Hospice, Inc. v. Agency for Health Care Admin., 904 So.2d 610, 611 (Fla. 1st DCA 2005). Guided by this standard, as well as by the concept of procedural due process, we conclude that the EPC's order must be reversed.

An...