Smith v. the School Board of Hillsborough County, Florida

DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

JARVIS SMITH,

Appellant,

v.

THE SCHOOL BOARD OF HILLSBOROUGH COUNTY,

Appellee.

No. 2D2023-2315

May 21, 2025

Appeal from the School Board of Hillsborough County.

Branden Vicari of Herdman & Vicari, P.A., Clearwater, for Appellant.

Kristen M. Fiore of Akerman, LLP, Tallahassee; and Phillip J. Harris and

Emily C. Ayvazian, Akerman, LLP, Tampa, for Appellee.

KHOUZAM, Judge.

Jarvis Smith appeals the final administrative order entered by the

School Board of Hillsborough County terminating his employment based

on his arrest for child abuse of a student. Because the School Board

relied almost entirely on inadmissible hearsay and denied Smith his due

process right to confront the witnesses against him, we are constrained

to reverse and remand for another hearing to be held.

Smith was employed as a teacher at Tampa Heights Elementary

School. He was arrested by the Hillsborough County Sheriff's Office

(HCSO) and charged with felony child abuse based on allegations that he

picked up a first-grade student from his chair and slammed him down.

The Child Protective Investigations Division of HCSO investigated the

incident and closed its case with "verified findings for physical injury."

The Hillsborough County Public Schools Professional Standards

Department conducted an internal investigation and prepared a report

that included summaries of witness interviews as well as photographs of

the victim's injuries.

Concluding that Smith's behavior violated certain regulations and

policies applicable to instructional staff, the Superintendent of Schools

suspended Smith without pay and sought to terminate his employment.

Smith requested a formal administrative hearing. At the hearing, the

superintendent took the position, and the hearing officer agreed, that

testimony from witnesses with personal knowledge of the incident was

not required. The only witness that the superintendent presented was

the Chief Human Capital Officer of the district, who admittedly had no

personal knowledge of the incident or the investigation thereof. Instead,

she read into the record statements from the detailed reports on the

incident that had been prepared by the multiple investigating entities.

Smith's hearsay objection to this testimony was overruled by the hearing

officer based on the superintendent's argument that "it's not hearsay, it's

not being offered for the truth of the matter asserted. It's being offered

for the reason that the district moved the way it did." Relying on the

contents of the reports, the School Board voted unanimously to

terminate Smith's employment and issued the order now on appeal.

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The crux of this case is whether the superintendent was required to

prove the underlying allegations against Smith or instead could simply

rely on reports regarding the incident—the contents of which were clear

hearsay—without presenting witnesses with personal knowledge. We

conclude that the superintendent was required to prove, by a

preponderance of the evidence, not just that the underlying allegations

were made but that they were true. Because the superintendent relied

almost entirely on hearsay, he completely failed to prove that the

allegations against Smith actually occurred. And by accepting the

superintendent's improper evidence, the School Board denied Smith his

due process right to confront the witnesses against him.

Florida teachers employed pursuant to a professional services

contract have an established protected property interest in their

continued employment with their school board. See Schimenti v. Sch. Bd.

of Hernando Cnty., 73 So. 3d 831, 832-33 (Fla. 5th DCA 2011). "Under

Florida law, a school board's decision to terminate an employee is one

affecting the employee's substantial interests; therefore, the employee is

entitled to a formal hearing under section 120.57(1)[, Florida Statutes

(2013),] if material issues of fact are in dispute." Seiden v. Adams, 150

So. 3d 1215, 1218 (Fla. 4th DCA 2014) (quoting Tieger v. Sch. Bd. of Palm

Beach Cnty., 717 So. 2d 172, 173 (Fla. 4th DCA 1998)).

It is true that such hearings are "of an informal character" and are

"not controlled by strict rules of evidence and procedure." Id. at 1219

(first quoting Krischer v. Sch. Bd. of Dade Cnty., 555 So. 2d 436, 437 (Fla.

3d DCA 1990), and then quoting Carillon Cmty. Residential v. Seminole

County, 45 So. 3d 7, 10 (Fla. 5th DCA 2010)). However, there are

particular requirements for such hearings, as set forth in section

120.57(1), Florida Statutes (2022), in relevant part:

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(b) All parties shall have an opportunity to respond, to

present evidence and argument on all issues involved, to

conduct cross-examination and submit rebuttal

evidence . . . .

(c) Hearsay evidence may be used for the purpose of

supplementing or explaining other evidence, but it shall not

be sufficient in itself to support a finding unless it would be

admissible over objection in civil actions.

....

(j) Findings of fact shall be based upon a preponderance of

the evidence, . . . and shall be based exclusively on the

evidence of record and on matters officially recognized.

(k) The presiding officer shall complete and submit to the

agency and all parties a recommended order consisting of

findings of fact, conclusions of law, and recommended

disposition or penalty, if applicable, and any other

information required by law to be contained in the final order.

All proceedings conducted under this subsection shall be de

novo.

"The School Board bears the burden of proving, by a preponderance of

the evidence, each element of the charged offense which may warrant

dismissal." McNeill v. Pinellas Cnty. Sch. Bd., 678 So. 2d 476, 477 (Fla.

2d DCA 1996). This necessarily includes the underlying allegations

against the employee. See Sublett v. Sumter Cnty. Sch. Bd., 664 So. 2d

1178, 1179 (Fla. 5th DCA 1995) ("We agree with the hearing officer that

for the School Board to demonstrate just cause for termination, it must

prove by a preponderance of the evidence, as required by law, that the

allegations of sexual misconduct were true, not merely that the

allegations were made."). To the extent that the School Board considered

the content of the reports for their truth, it was inadmissible hearsay and

was insufficient by itself to support the School Board's decision. See

90.801(1)(c), Fla. Stat. (2022) (defining "[h]earsay" as "a statement, other

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than one made by the declarant while testifying at the trial or hearing,

offered in evidence to prove the truth of the matter asserted").

Here, despite this settled law, the superintendent took the position

that testimony from witnesses with personal knowledge of the incident

was not required. Instead of presenting witnesses with personal

knowledge of the incident, the superintendent chose to rely almost

entirely on hearsay statements contained in the reports that were read

into the record by the superintendent's only witness, who admittedly had

never even observed Smith interact with a student. Under these

circumstances, the superintendent completely failed to carry his burden

to prove that the underlying allegations against Smith actually occurred.

This failure, moreover, denied Smith his due process right to

confront the witnesses against him because, even though a hearing was

held, Smith was not able to confront any witnesses with personal

knowledge of the incident. Cf. Grice v. City of Kissimmee, 697 So. 2d

186, 191 (Fla. 5th DCA 1997) ("We find that [police officer] MacPherson

was indeed denied procedural due process of law when his termination

was based on the testimony of a complainant whose testimony he

disputed, and he was not accorded the opportunity to confront and

cross-examine her. . . . We are not here determining whether

MacPherson's termination was justified or not. . . . We are only

concerned that the City's procedures meet all due process

requirements."); see also Park v. City of W. Melbourne, 769 So. 2d 397,

398 (Fla. 5th DCA 2000) (following Grice). Instead, the School Board

improperly relied almost entirely on the hearsay contents of the reports

in making its decision to terminate Smith's employment.

Accordingly, on the record before us, we are constrained to reverse

and remand for another hearing before the School Board, to be

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conducted with appropriate due process safeguards. See § 120.68(7)(b)

(contemplating remand for further proceedings where appropriate when

the "agency's action depends on any finding of fact that is not supported

by competent, substantial evidence in the record").

Reversed and remanded with instructions.

LaROSE, J., Concurs.

MOE, J., Concurs in result only.

__________________________

Opinion subject to revision prior to official publication.

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