STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, ) FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 95-0534

)

JUAN ALEJO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on January

24 and 25, 1996, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Donnise A. DeSouza, Esquire

Reginald J. Clyne, Esquire Clyne and Associates, P.A. Douglas Centre- Penthouse 2 2600 Douglas Road

Coral Gables, Florida 33134

For Respondent: Leslie A. Meek, Esquire

United Teachers of Dade 2929 Southwest Third Avenue Miami, Florida 33129

STATEMENT OF THE ISSUES

1. Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges?

   
   

2. If so, whether such conduct provides the School Board of Dade County, Florida, with just or proper cause to take disciplinary action against him?

   
   

3. If so, what specific disciplinary action should be taken?

   
   

   PRELIMINARY STATEMENT

   
   

   On January 25, 1995, the School Board of Dade County, Florida (School Board) suspended Respondent from his position as a teacher assistant and initiated a dismissal proceeding against him "for violation of the Corporal Punishment Policy and Employee Conduct Rule." By letter dated January 26, 1995, Respondent, through his counsel, requested a Section 120.57 formal hearing on

   the matter. On February 3, 1995, the School Board referred the matter to the Division of Administrative Hearings (Division) for the assignment of a Division Hearing Officer to conduct the formal hearing Respondent had requested.

   
   

   On or about April 6, 1995, the School Board served on Respondent its Notice of Specific Charges (Notice) against Respondent. The Notice alleged that, on or about March 10, 1994, while "employed by the Dade County Public Schools as a paraprofessional and assigned to Hialeah Middle School," Respondent "willfully neglected his duties and failed to comply with duly promulgated School Board Rules" when he: "A. kicked an autistic student several times and caused physical injury to the student in the presence of students, teacher aides and another teacher; and B. failed to report in violation of section 415.504, Fla. Stat. that a teacher physically abused said autistic student by hitting him repeatedly and causing physical injury to the student in the presence of others." According to the Notice, as a result of having engaged in such conduct, Respondent is guilty of the following which "constitute[] just cause for dismissal:" "immorality as defined by Fla. Admin. Code Rule 6B- 4.009(2)"(Count I); "incompetency due to inefficiency as defined by Fla. Admin. Code Rule 6B-4.009(1)(a)"(Count II); and "misconduct in office which is so serious as to impair his effectiveness in the school system"(Count III).

   
   

   By order issued April 11, 1995, the Hearing Officer, at the School Board's request, consolidated the instant case with DOAH Case No. 95-0544, Dade County School Board v. Morgan Tharpe. (Morgan Tharpe is the teacher referenced in the Notice who allegedly committed the physical abuse that Respondent failed to report. The School Board has also initiated a dismissal proceeding against Tharpe and referred the matter to the Division for a formal hearing.)

   
   

   On January 18, 1996, in accordance with the Order Requiring Prehearing Stipulation issued by the Hearing Officer on March 16, 1995, the parties filed a Prehearing Stipulation in these consolidated cases. The parties' Prehearing Stipulation contained the following "[s]tatement of admitted facts requiring no proof:"

   
   

   1. At all times material hereto, Tharpe was employed under a continuing contract by the [School Board] as teacher in the autistic program.

   2. At all times material hereto, Alejo was employed under an annual contract by the [School Board] as a Paraprofessional in the autistic program.

   3. At all times material hereto, the terms and conditions of Tharpe['s] and Alejo's employment with the [School Board] was governed by a contract between the United Teachers of Dade and the [School Board].

   4. Prior to March 10, 1994, Tharpe and Alejo had successfully taken and completed the Safe Physical Management training course offered by the [School Board].

   5. At all times material hereto, Tharpe and Alejo were aware of the [School Board] rule prohibiting the use of corporal punish- ment by employees against students in the [School Board] system.

   6. At all times material hereto, Tharpe

      and Alejo were aware of the [School Board] rule requiring employees to report cases of suspected or actual physical abuse of a child to the appropriate authorities.

   7. On March 10, 1994, Tharpe and Alejo worked at Hialeah Middle School in the autistic program of the Exceptional Student Education Department.

   8. On March 10, 1994, [M.A.] was an autistic student in Tharpe's class at Hialeah Middle School.

   9. On March 10, 1994, while participating in Gerald Merkerson's wood shop class, [M.A.] threw a tantrum which necessitated the use

      of safe physical management techniques by

      the [School Board] employees who were present during the incident (hereinafter referred to as the "incident".)

   10. During the incident, [M.A.] kicked Tharpe in the area of his thigh or groin.

   11. During the incident, Tharpe picked up a piece of wood and caused it to contact with [M.A.'s] body more than one time.

   12. During the incident, [M.A.] bit Alejo on the arm.

   13. During the incident, Alejo kicked [M.A.] with his foot.

   14. Alejo, Gerald Merkerson, and Eli Velazquez were [School Board] employees who were present in the room during the course of this incident.

   15. [L.E.], a student in the regular education program of the [School Board] system, was present in the room during the course of this incident.

   16. Alejo observed Tharpe hit [M.A.] with a piece of wood during the incident and did not report same to the administration of the Hialeah Middle School following the incident.

   17. A conference for the record was held with regard to Tharpe's involvement in the subject incident on November 2, 1994.

   18. Tharpe received written notice of the [School Board's] action to suspend him and initiate dismissal proceedings from all employ- ment by the [School Board] in a letter dated January 26, 1995 for misconduct in office, immorality, violation of the Corporal Punishment Policy, violation of the Responsibilities and Duties of a teacher, and violation of the Employee Conduct Rule.

   19. Tharpe, by and through his attorney, requested a formal hearing with regard to his suspension and dismissal in a letter dated January 27, 1995.

   20. A conference for the record was held with regard to Alejo's involvement in the

       subject incident on November 2, 1994.

   21. Alejo received written notice of the [School Board's] action to suspend him and initiate dismissal proceedings for all employment by the [School Board] in a letter dated January 26, 1995 for violation of the Corporal Punishment Policy and Employee Conduct Rule.

   22. Alejo, by and through his attorney, requested a formal hearing with regard to his suspension and dismissal in a letter dated January 26, 1995.

At the outset of the formal hearing conducted by the Division Hearing Officer assigned the case, the School Board requested, without objection, that the Hearing Officer take official recognition of Sections 230.22 and 231.36, Florida Statutes, and Chapters 28-5 and 60Q-2 and Rules 6A-6.03023, 6B-1.001,

6B-1.006 and 6B-4.009, Florida Administrative Code. The Hearing Officer granted the School Board's unopposed request.

During the evidentiary portion of the hearing, the following seven witnesses testified: Will Gordillo, the director of the School Board's Division of Exceptional Student Education; L.A.H., M.A.'s mother; Dr. Walter Lambert, the medical director of the University of Miami's Child Protection Team; Evelyn Diaz Loper, an assistant principal at Hialeah Middle School; Jill Brookner, an educational specialist with the School Board assigned to its Division of Exceptional Student Education; Respondent; and Tharpe. All of these witnesses, except for Brookner, who was Respondent's witness, were called to testify by the School Board. 1/ In addition to the testimony of these seven witnesses, 20 exhibits (Petitioner's Exhibits 1 through 19 and Tharpe's Exhibit

1. were offered and received into evidence. Among these 20 exhibits was the deposition of Eli Velazquez (Petitioner's Exhibit 19), which was taken in these consolidated cases on August 21, 1995.

   
   

   Following the close of the evidentiary portion of the hearing, the Hearing Officer, on the record, advised the parties of their right to file post-hearing submittals and established a deadline (20 days from the date of the Hearing Officer's receipt of the transcript of the final hearing) for the filing of these submittals. The Hearing Officer received the hearing transcript on March 14, 1996.

   
   

   The School Board filed a proposed recommended order on March 15, 1996. On April 3, 1996, Respondent filed an unopposed motion requesting an extension of time to file his proposed recommended order. By order issued that same day, Respondent's motion was granted and he was given until April 15, 1996, to file his proposed recommended order. Respondent filed his proposed recommended order on April 15, 1996.

   
   

   The School Board's and Respondent's proposed recommended orders have been carefully considered by the Hearing Officer. The proposed "findings of fact" set forth in these proposed recommended orders are specifically addressed in the Appendix to this Recommended Order.

   FINDINGS OF FACT

   
   

   Based upon the evidence received at the formal hearing, the factual stipulations of the parties, and the record as a whole, the following Findings of Fact are made:

   
   

   1. The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Dade County, Florida.

      
      

   2. At all times material to the instant case, Respondent was an annual contract employee of the School Board occupying a paraprofessional position. He currently is under suspension as a result of the incident described in the Notice of Specific Charges.

      
      

   3. Respondent's employment with the School Board began on October 2, 1987, when he was hired as a part-time custodian and assigned to Hialeah Middle School (HMS). He remained a part-time custodian at HMS until 1989, when he became a teacher aide at the school. He was a teacher aide at HMS from 1989 to 1992. In 1992, he filled a teacher assistant position at the school. He stayed in that position until he was administratively reassigned in April of 1994, following the incident which led to the initiation of the instant disciplinary proceeding.

      
      

   4. As a teacher assistant at HMS during the 1993-94 school year, Respondent was a member of a collective bargaining unit represented by the United Teachers of Dade (UTD) and covered by a collective bargaining agreement between the School Board and UTD, effective July 1, 1991, through June 30, 1994 (UTD Contract). 2/

      
      

   5. Article IV of the UTD Contract addressed the subject of "employer rights."

      
      

   6. Section 1 of Article IV provided, in part, that the School Board had the exclusive right to suspend, dismiss or terminate employees "for just cause."

      
      

   7. Article XIX of the UTD Contract addressed the subject of "employee rights and due process."

      
      

   8. Section 2 of Article XIX provided, in part, that "[d]ismissals and suspensions shall be effected in accordance with applicable Florida statutes, including the Administrative Procedures Act (APA)."

      
      

   9. Article VII of the UTD Contract addressed the subject of a "safe learning environment."

      
      

   10. Section 1, paragraph A, of Article VII provided as follows:

       
       

       A safe and orderly learning environment is a major priority of the parties. Such an environment requires that disruptive b havior be dealt with safely, fairly, consis- tently and in a manner which incorporates progressive disciplinary measures specified in the Code of Student Conduct.

   11. Section 1, paragraph B, of Article VII provided, as follows:

       
       

       Rules governing discipline are set forth in the Code of Student Conduct, School Board Rules, and Procedures for Promoting and Main- taining a Safe Learning Environment and, by reference, are made a part of this Contract.

       
       

   12. Guideline No. 4 of the School Board's Procedures for Promoting and Maintaining a Safe Learning Environment (School Board's Procedures), which were incorporated by reference in Section 1, paragraph B, of Article VII of the UTD Contract, addresses the subject of "child abuse" and provides, in part, as follows:

       
       

       CURRENT LAW AND/OR PRACTICE

       
       

       Section 415.504, Florida Statutes, requires mandatory reporting of all cases of child abuse. This statute applies to suspected or confirmed reports against any person, regard- less of occupation, who is alleged to be involved or any person who is alleged to have committed any act of child abuse. School personnel are not exempted from mandatory reporting of child abuse even when a fellow

       employee is suspected or confirmed as the abuser. WHEN IN DOUBT, REPORT ... CHILD ABUSE

       Child abuse is defined to include harm or threatened harm to a child's health or wel- fare and/or willful or negligent acts which result in: neglect; malnutrition; sexual abuse; physical injury; mental injury; or failure to provide sustenance, clothing, shelter, or medical treatment.

       Any person, including, but not limited to, physician, nurse, teacher, social worker, or employee of a public or private facility serving children, who has reason to believe that a child has been a subject of child abuse, shall report this information as indicated in the procedures outlined in this guideline.

       Knowing and willful failure to report sus- pected or confirmed abuse, and knowing and willful prevention of another from making such a report, is a crime punishable by up to two months in jail and up to a $500 fine,

       Sections 775.082 and 775.083, Florida Statutes, and may be subject to disciplinary action of Dade County Public Schools. It is suggested that once a report is made, the principal or appropriate school administrator be notified.

       PROCEDURES . . .

       1. SCHOOL RELATED CHILD ABUSE REPORTING . . .

          
          

          1. Anyone aware of suspected or confirmed child abuse committed by School Board employees acting in their official capacity, shall immediately make a report to the principal

             or designee who shall immediately make a report to the Dade County Public Schools Police and the Region Office.

             
             

          2. Reasonable Force and Child Abuse.

             
             

             In some instances, a need may exist to differentiate between reasonable force and child abuse. Florida Statute 232.27 provides that:

             Subject to law and to the rules of the district school board, each teacher or other member of the staff of any school shall have such authority for the control and discipline of students as may be assigned by the princi- pal or designee and shall keep good order in the classroom and in other places in which the teacher or other staff member is assigned to be in charge of students...

             
             

             Florida Statute 232.275 provides that:

             ...Except in the case of excessive force or cruel and unusual punishment, a teacher or other staff member, a principal or designee, or a bus driver shall not be civilly or criminally liable for any action carried out in conformity with the state board and district school board rules regarding the control, discipline, suspension, and expulsion of students...

          3. An administrator must report to Dade County Public Schools Police and the Region

             Office all cases involving Board Employees where:

             1. excessive physical force or physical contact that was used was greater than necessary

             2. use of unauthorized physical action results in injury to a student

             3. corporal punishment is administered to a student

                
                

   13. Guideline No. 5 of the School Board's Procedures addresses the subject of "illnesses and injuries to students" and provides, in part, as follows:

       
       

       CURRENT LAW AND/OR PRACTICE

       
       

       All employees responsible for supervision of students and student activities are to

       take precautions to protect the life, health,

       and safety of every student in an effort to reduce or eliminate accidents, injuries, and illnesses. . . .

       
       

   14. Guideline No. 9 of the School Board's Procedures addresses the subject of "corporal punishment" and provides as follows:

       
       

       CURRENT LAW AND/OR PRACTICE

       
       

       Corporal punishment is prohibited in the Dade County Public Schools. This prohibition

       extends to parents or guardians on school grounds.

       Corporal punishment is physical force or

       physical contact applied to the body as punishment.

       
       

       Section 228.041(27), Florida Statutes, defines corporal punishment as:

       ... the moderate use of physical force or physical contact by a teacher or principal as may be necessary to maintain discipline or to enforce school rules. However, the term "corporal punishment" does not include

       the use of such reasonable force by a teacher or principal as may be necessary to protect himself or other students from disruptive students.

       The use of physical restraint techniques in accordance with School Board Rule 6Gx13-6A-1.331 (Special Programs and Procedures and . . . .

       the Contract Between the Dade County Public Schools and United Teachers of Dade is not corporal punishment.

       
       

   15. Prior to March 10, 1994, Respondent was aware of the School Board's rules prohibiting the use of corporal punishment and requiring employees to report cases of suspected or actual child abuse.

       
       

   16. Section 1, paragraph D, of Article VII of the UTD Contract provided, in part, as follows:

       
       

       The parties recognize the potential for difficult circumstances and problems related

       to the use of corporal punishment. Accordingly, the parties agree that such punishment shall be prohibited as a disciplinary option, and further agree to act affirmatively in continuing to identify and implement more effective alter- natives for dealing with student behavior.

       
       

   17. "Physical restraint" was the subject of Section 3 of Article VII of the UTD Contract, which provided as follows:

       
       

       1. There are instances where exceptional students exhibit behaviors that are disruptive to the learning environment and pose a threat to the safety of persons or property.

       2. Exceptional students enrolled in pro-

          grams for the emotionally handicapped, severely emotionally disturbed, and autistic, because of the nature of their disability, may on occasion experience impaired impulse control of such severity that use of physical

          restraint is necessary to prevent such students from inflicting harm to self and/or others,

          or from causing damage to property. Students enrolled in other exceptional student education programs may also display behaviors that require the use of restraint.

       3. The purpose of physical restraint is to prevent injury to persons or destruction of property. It is not to be used to "teach the child a lesson" or as punishment. Subject to available funding, teachers or paraprofess- ionals shall, upon request, be afforded an opportunity to learn physical restraint techniques.

       4. Strategies for the prevention of aggressive behavior shall be utilized on an ongoing basis. However, when a explosive event occurs without warning and is of such degree that there is imminent risk to persons or property, the use of physical restraint

          techniques is authorized for such circumstances.

       5. Physical restraint refers to the use of physical intervention techniques designed to restrict the movement of a student in an effort to de-escalate aggressive behavior.

          In order to promote a safe learning environment, the district has authorized for implementation specific physical restraint procedures to be used in programs for the emotionally handicapped, severely emotionally disturbed,

          and autistic. These specific procedures may also be used with other exceptional students when it is indicated on the student's Individualized Education Program (IEP).

          These procedures include, but are not limited to, holding and escape techniques which, when implemented, prevent injury to students and staff or prevent serious damage to property. Specific physical restraint procedures may also be approved for use with

          other specific student populations upon mutual agreement of the parties and would be reviewed on an annual basis.

       6. The Board shall provide for the training of instructional and support staff in physical restraint techniques as well as strategies for prevention of aggressive behavior. Training manuals developed for this purpose are, by reference, incorporated and made a part of this agreement.

       7. Physical restraint techniques provided in training programs approved by the Board

          are authorized and, when utilized in accor- dance with the training provided and these guidelines, shall not constitute grounds for disciplinary action. If a teacher is not trained in the use of approved physical restraint procedures and is faced with an emergency, the teacher is authorized to employ the moderate use of physical force or physical contact as may be necessary to

          maintain discipline or to enforce School Board Rules 6Gx13-5D-1.07 and 1.08. The appropriate use of these procedures shall not constitute a violation of the corporal punishment policy (Board Rule 6Gx13-5D-1.07).

       8. The use of physical restraint techniques shall be discussed as part of the Individualized Educational Program (IEP) review development process. The Local Education Agency (LEA) representative, at the initial IEP meeting and/or annual review, shall provide notifica- tion to parents of physical restraint proced- ures. When parents or surrogates are not

          present at the meeting, written notification to them regarding the use of physical restraint will be provided.

       9. For an exceptional student enrolled in a program other than for the emotionally handicapped, severely emotionally disturbed or autistic, a recommendation for the use of board-approved physical restraint procedures must be made by the multi-disciplinary team (M-Team) and be documented on the student's IEP form before the use of such procedures may be authorized.

       10. The use of physical restraint must be documented as a part of the Student Case Management (SCM) System. Instructional or support staff who utilize physical restraint techniques shall complete the SCM Student Services Form to record student case information regarding each incident. Direct- ions shall be provided to instructional and support staff to assist them in completing the appropriate form.

       
       

   18. In accordance with Section 3 of Article VII of the UTD Contract, the School Board offered (and continues to offer) a Safe Physical Management Crisis Intervention Training Program (SPM Training Program) for its instructional and non-instructional staff assigned to work with emotionally handicapped, severely emotionally disturbed, and autistic students in order to train these employees in the use of School Board-authorized and approved physical restraint techniques and strategies.

       
       

   19. Participants in the School Board's SPM Training Program are given training manuals to review and study.

   20. According to one of these training manuals, Petitioner's Exhibit 3, the philosophy of SPM is as follows:

       
       

       Utilizing Safe Physical Management tech- niques in the classroom requires that non- physical intervention be used whenever possible to manage behavior. It is also expected that an on-going behavior management system is in place in the classroom to rein- force appropriate behaviors and control inappropriate ones. Physical management techniques may be used when the student is endangering himself, others, or property.

       They are not used to "punish" the child for misbehavior. Additionally, the philosophy

       of SPM includes the following major concepts.

       1. Emphasis on Safety- Techniques utilized in SPM consider the safety of the client and staff first. In a school setting, techniques that ensure physical safety of students and staff are important.

       2. Realize that Students can be Aggressive- SPM accepts the fact that some students need to be physically managed. The techniques used are based on the premise that students will

          at times eventually force physical inter- vention. That is, the student will do some- thing that you cannot ignore or manage using non-physical interventions.

       3. Least-Restrictive- SPM techniques move from least restrictive (providing minimal physical control) to more restrictive (providing maximum control). At all times, the least-restrictive technique that can control the student is used.

       4. Limitations- SPM techniques have limit- ations. They cannot handle every explosive situation. There are times when the best situation is not to intervene physically. There are times when SPM Techniques are neither appropriate or feasible.

       5. Assistance- SPM techniques advocate the use of assistance. Most techniques work best with two or more people and often, the best decision initially is to get help from other staff members. 3/

       6. Professionalism- The focus of SPM techniques is to assist in the maintenance

       of a safe learning environment. SPM provides the district approved terminology for the documentation of physical intervention by

       the professional staff.

       
       

       This training manual also contains, among other things, the following information and instructions concerning the management of an "explosive event:"

       To effectively manage explosive (out-of- control) situations it is important to conceptualize them as:

       1. Angry/Aggressive- No matter how the incident begins, it is an expression of anger on the part of the student.

       2. Time-Limited/Temporary- Explosive incid- ents are angry, with the most dominant charact- eristics being a loss of physical control by the student. They are time-limited and even though they seem endless, the student will eventually calm down.

       3. Behaviorally Sequential- The behaviors exhibited by the student follow a pattern with behaviors typical each period

       (see Appendix B).

       Physical management techniques are not designed to end the explosive episode abruptly. Rather they are designed to safely manage the situation from beginning to end. As a result, the student may cont-

       inue to engage in aggressive acts, but managed appropriately, the risk of injury to persons or equipment is minimized. During the incident, only the amount of force necessary to prevent injury is utilized, and as the child exhibits more control a less restrictive hold may be used.

       Planning for explosive incidents is an important part of their prevention.

       Assessing the student, the environment and available staff is critical before physical intervention occurs. During the event, professional staff must be aware of both the verbal and non-verbal messages they give to students. It is important to indicate concern, expectation for change, and your interest in solving the problem. It is not the time to list sanctions, discuss potential punishments, or respond to personally abusive comments.

       After the incident ends, the staff involved should allow the student to withdraw and provide calm, brief verbal statements. Now is the time to communicate understanding, and

       to help the student identify ways this sequence of events can be prevented in the future.

       
       

   21. Another of the training manuals given to participants in the School Board's SPM Training Program, Petitioner's Exhibit 4, states the following regarding the importance of the child's safety in dealing with "explosive behavior:"

       
       

       Youth service workers and teachers are charged with a caretaking responsibility. As such they assume the natural role of adults to protect or safeguard the young. The Safe Physical Management Crisis Intervention

       Training Program has as its fundamental pur- pose the safe resolution of explosive behavior. This safety premise holds the adult responsible for insuring the safety of the youth. While the charge of guaranteeing youth safety during a crisis may appear in some way to jeopardize the safety of the intervening adult, in reality it keeps the adult from stepping into harm's way. Entering an explosive situation with a cognitive and physical focus of client safety allows for

       the management of the behavior and avoids the traps that attempting to eliminate the behavior present. When the purpose of the intervening staff is controlled by self preservation, their reaction to the acting out youth can easily become antagonistic. Such reactions promote escalation and a greater potential for harm. By keeping the youth safe, we provide a higher degree of safety for ourselves. . . .

       Intervention methods must be safe for both youth and adults; client/student safety however, is primary. At a minimum we shall do no harm. Physical intervention must be safe and, ideally, present minimal risk of accidental injury. . . .

       The intervention design of the safe physical management program is based upon the principle of social policy known as the "least restric- tive alternative." In many areas this principle has been reduced to the regulatory phrase, "passive restraint." In action, passive restraint refers to an intervention that utilizes the least amount of force necessary to safely control the situation.

       Student/youth safety is paramount. The SPM intervention philosophy requires that inter- vention personnel hold the safety of the student before their own. This premise, while sometimes raising the eyebrows of

       staff in training, ironically keeps the intervening staff safer than would an approach which holds staff well-being as primary.

       
       

       This training manual also contains, among other things, the following list of the "physical principles" of SPM:

       
       

       Proximity- safety is enhanced if physical space is understood as both a prompt and/or a deterrence to be used in the management

       of misbehavior.

       Location/positioning- safety is enhanced if intervention staff understand that the "face to face" position during intervention is considered the "attack/danger" zone.

       Evasion/deflection- safety is enhanced by evading or deflecting force rather than by opposing it.

       Balance- Safety is enhanced if intervention staff understand the principle of homeostasis- the nature of organisms to remain in a state of balance.

       Neutralization- Safety is enhanced if inter- vention staff understand the principle of managing an explosive event, rather than eliminating explosive behavior.

       
       

       In addition, this training manual describes and illustrates various physical positions and techniques used in SPM, including the "pivot and parry," an "evasion/deflection" technique which is described in the manual as follows:

       
       

       This combination of upper and lower body movement allows the staff to effectively evade and deflect any force that is directed at him/her.

       The pivot (usually 1/4 turn of one foot) is accomplished by leaving the weight on the foot which is on the side on which the blow or punch is delivered and moving the other foot toward the rear. The ending posture or stance should be the leading/trailing foot

       position previously described. This movement allows the blow or punch to go by the indivi- dual. This is the bull fighter move that allows the charging bull to pass on the side.

       Here, we are evading force rather than opposing it. The parry is a deflection of the force- i.e.,

       the blow or punch. While both arms are used the primary parry is employed using the arm that is on the same side as the blow or punch. This arm is raised in an "L" configuration with the forearm vertical and upper arm on a horizontal pla[ne]. As the blow or punch is delivered the forearm is moved across to deflect the incoming force. This is not a blocking motion but, rather, a motion which simply redirects the force away from its target. The second arm is also used by

       making a similar "L" configuration with the hand being placed a approximately chin level. Again, the purpose is deflection.

       When the pivot and parry is employed correctly it places the staff in a position to move in and control the attacker, or to escape the danger by fleeing the situation.

       
       

   22. School Board staff receiving SPM training are also taught that, if during an "explosive event" they find themselves lying on the floor on their back being kicked by a student, they may raise a leg or arm to create a barrier to protect other, more sensitive, parts of their body.

   23. It is imperative that staff, in applying SPM principles, techniques, and strategies, exercise sound professional judgment. In determining how to deal with an "explosive event," which often begins abruptly, staff must consider the particular circumstances with which they are confronted. If they have had prior dealings with the student involved in the incident, they should draw upon these prior dealings and attempt to anticipate the student's actions.

       
       

   24. Respondent successfully completed a SPM training course offered by the School Board prior to March 10, 1994. 4/

       
       

   25. Through its exceptional student education department, HMS offers special programs of instruction for various types of exceptional students, including those who are autistic. 5/

       
       

   26. It is not uncommon for autistic students to engage in "acting out behavior" (such as screaming, yelling, punching, kicking and throwing objects).

       
       

   27. To enable its employees who work with autistic students to better understand these students and to deal with them more effectively, the School Board provides these employees with various written materials, including the Autism Orientation Manual, Petitioner's Exhibit 7, which contains the following statement regarding SPM:

       
       

       These procedures should conform to methods approved by the Dade County Public Schools which are described and demonstrated in struc- tured training sessions required for teachers and paraprofessionals working with autistic students. When using physical restraint, it is important to document what is being done.

       Written permission from parents or guardians is required. Physical restraint should not be used unless positive reinforcement methods

       have been utilized and the student is presenting potential harm to self and/or others.

       
       

   28. Evelyn Diaz Loper is now, and was at all times material to the instant case, an assistant principal at HMS responsible for the overall operation of the school's exceptional student education department, including the supervision of those School Board employees assigned to the department.

       
       

   29. On March 10, 1994, Respondent and Morgan Tharpe were among the employees under Loper's supervision.

       
       

   30. Tharpe was a teacher (with continuing contract status) who taught a class of autistic students at HMS. There were less than ten students in his class.

       
       

   31. M.A. was one of these students.

       
       

   32. M.A. was one month shy of his fourteenth birthday. He was quite strong for his age and had a history of engaging in "acting out behavior" in school.

       
       

   33. Respondent worked on a "one-to-one" basis with F.T., another student in Tharpe's class.

   34. During the second period on March 10, 1994, M.A., F.T. and the other students in Tharpe's class were in shop teacher Gerald Merkerson's classroom. They were supposed to be working on their woodworking projects.

       
       

   35. In addition to Tharpe's students and Merkerson, Respondent and two other School Board employees occupying paraprofessional positions (Eli Velazquez and Clara Smith), along with L.E., an HMS student in the school's regular education program, were in Merkerson's classroom.

       
       

   36. M.A. wanted to watch television in the classroom and not work on his project. Merkerson, however, refused to allow M.A. to watch television.

       
       

   37. M.A. thereupon began to engage in "acting out behavior." Among other things, he threw a metal file and wood in Merkerson's direction. (Merkerson was not hit by any of these thrown objects.)

       
       

   38. Merkerson and Velazquez took action to restrain M.A. Merkerson grabbed M.A.'s left arm, while Velazquez grabbed M.A.'s right arm. 6/ The two then attempted to lead M.A. away from the area of the classroom where M.A. was positioned. M.A. resisted their efforts.

       
       

   39. Unlike Respondent, Velazquez had not yet been trained in SPM. Moreover, he was not supposed to be in Merkerson's classroom. Accordingly, Velazquez let go of M.A.'s arm and Respondent attempted to take over for him.

       
       

   40. M.A., however, bit Respondent on the arm. The bite broke Respondent's skin.

       
       

   41. Velazquez came to Respondent's assistance and helped Respondent remove himself from the fray.

       
       

   42. After tending to his wound, Respondent rejoined Velazquez and assisted him in attempting to restrain M.A.

       
       

   43. Merkerson was no longer holding on to M.A. He had let go after a cut on his hand had reopened and started to bleed.

       
       

   44. M.A. was on his knees on the floor being restrained by Respondent and Velazquez when Tharpe walked into classroom.

       
       

   45. Tharpe instructed Respondent and Velazquez to let go of M.A.

       
       

   46. Respondent and Velazquez followed Tharpe's instructions, notwithstanding that M.A. had not yet calmed down and was still engaging in "acting out behavior."

       
       

   47. Tharpe walked toward M.A.

       
       

   48. When Tharpe was approximately two feet away from M.A., M.A. kicked Tharpe in the area of his groin.

       
       

   49. Tharpe screamed out in pain.

       
       

   50. M.A.'s actions prompted Velazquez to again attempt to restrain M.A. He grabbed both of M.A.'s arms, but was not able to hold on securely because both he and M.A. were dripping with sweat.

   51. M.A. struggled with Velazquez and tried to scratch and bite him.

       
       

   52. As Velazquez and M.A. were on their knees, face-to-face face, struggling with one another, Tharpe approached M.A. from behind and struck M.A. in the area of the upper back with a relatively thin, rectangular-shaped piece of wood approximately one foot to two meters long and two to three inches wide. 7/

       
       

   53. Velazquez released M.A. after Tharpe delivered this blow.

       
       

   54. M.A. then started crawling towards Tharpe and tried to scratch and bite him.

       
       

   55. In an effort to ward off M.A.'s attack, Tharpe, who at 235 pounds was substantially larger than M.A., hit M.A. on the back at least two more times with the piece of wood he was holding in his hand. These additional blows were not delivered with full force.

       
       

   56. The three or more blows that Tharpe delivered produced bruises on M.A.'s back. The marks remained visible for approximately seven to ten days.

       
       

   57. In delivering these blows, Tharpe used more force than was reasonably necessary to effectively and safely deal with M.A.'s "acting out behavior" and he acted in a manner that was inconsistent with the SPM training he had received.

       
       

   58. Respondent had witnessed Tharpe's actions and recognized that Tharpe had acted improperly. Nonetheless, contrary to the requirements of Guideline No. 4 of the School Board's Procedures (of which Respondent was aware), Respondent did not report the incident to Loper (who was at school that day) or any other School Board administrator within a reasonable period of time following the incident. Neither did any of the other HMS staff members who had been in the classroom at the time of the incident advise Loper, on March 10, 1994, of what had happened.

       
       

   59. Although Tharpe's actions were inappropriate, they were effective. After Tharpe delivered his final blow, M.A. stopped crawling toward him.

       
       

   60. M.A. continued to scream, however, and, after a while, he started to crawl toward Respondent.

       
       

   61. In an effort to prevent M.A. from coming any closer, Respondent swung his foot in M.A.'s direction and made contact with M.A. 8/

       
       

   62. Respondent kicked M.A. approximately five or six times, but M.A. continued coming at him. When Respondent started to become visibly upset with M.A., Velazquez intervened by positioning himself between Respondent and M.A. and pushing Respondent out of the way.

       
       

   63. Respondent did not kick M.A. as hard as he could have. 9/ Nonetheless, in kicking M.A., he used more force than was reasonably necessary to effectively and safely deal with M.A.'s "acting out behavior" and he acted in a physically aggressive manner that was inconsistent with the SPM training he had received. 10/

       
       

   64. M.A. eventually calmed down and returned to Tharpe's classroom.

   65. Tharpe telephoned M.A.'s mother, L.A.H., that day (March 10, 1994), but he did not mention to her during their conversation anything about what had happened in Merkerson's classroom during second period. He simply told L.A.H. that she needed to supply him with more medication for M.A.

       
       

   66. Following the conclusion of the school day, M.A. went home by school

       bus.

       
       

   67. L.A.H. met him at the bus stop and greeted him with a hug. She was

       unaware, at the time, that anything unusual or out of the ordinary had occurred in school that day.

       
       

   68. M.A. pulled away from his mother when she hugged him and said, "Mom, boo-boo." 11/

       
       

   69. L.A.H. then pulled up M.A.'s shirt and saw four bruises about "three fingers wide" on M.A.'s back that had not been there that morning when she had helped M.A. get dressed for school. M.A. also had a scratch on his forehead that L.A.H. had never seen before and a bump on his head.

       
       

   70. The following morning (March 11, 1994), L.A.H., accompanied by M.A. and M.A.'s father (L.A.H.'s former husband), met with Loper and William Jones, the principal of HMS. L.A.H. showed Loper and Jones the bruises on M.A.'s back and the scratch on his forehead and expressed her belief that M.A. had sustained these injuries at school the previous day.

       
       

   71. Loper thereupon contacted Merkerson and asked him if anything had occurred in his classroom the day before that may have resulted in injury to M.A.

       
       

   72. In view of Merkerson's response to her inquiry, Loper asked him to fill out a Student Case Management Referral Form (SCM Form).

       
       

   73. A SCM Form must be filled out whenever a student has been physically restrained.

       
       

   74. Loper had not previously received a completed SCM Form indicating that physical force had been used against M.A. in Merkerson's classroom the day before.

       
       

   75. On the SCM Form that he filled out at Loper's request, Merkerson stated the following:

       
       

       [M.A.] became irate and upset because he

       was not allowed to watch Barney on television. He became combatant and began to throw stools and wooden objects at the teachers and paraprofessionals. Upon being subdued to reduce the danger that he posed to myself and others he bit Juan Alejo on his right forearm, kicked Mr. Tharpe in the groin area and hit his right arm with his balsa wood project.

       The student poses a serious safety hazard in the technology education shop class.

       [M.A.] was also self destructive and scratched himself on the left temple.

   76. Although Merkerson did not mention in his written report that, in subduing M.A., Tharpe had hit M.A. with a piece of wood and Respondent had kicked M.A., the School Board ultimately found out about Tharpe's and Respondent's unseemly and inappropriate behavior during the incident.

       
       

   77. On November 2, 1994, a conference for the record was held concerning Respondent's involvement in the incident. At the conference, Respondent admitted that he had kicked M.A. during the incident.

       
       

   78. By letter dated November 3, 1994, the principal of HMS recommended to Frank de Varona, the Regional Superintendent (for Region I Operations) "the termination of [Respondent] from all employment in Dade County Public Schools."

       
       

   79. By letter dated January 13, 1995, the School Board's Superintendent of Schools notified Respondent that he was recommending that the School Board suspend Respondent and initiate a dismissal proceeding against him.

       
       

   80. The School Board took such recommended action at its January 25, 1995, meeting.

       
       

   81. Respondent thereafter requested a formal hearing on the matter.

       
       

       CONCLUSIONS OF LAW

       
       

   82. The School Board may suspend or dismiss its employees for proper or just cause. See Sections 230.23(5)(f), 231.3605 12/ and 447.209, Fla. Stat.; Article IV, Section 1, of the UTD Contract.

       
       

   83. Proper or just cause includes, but is not limited to, immorality, misconduct in office, and incompetency. Cf. Section 231.36(6)(b), Fla. Stat. ("[a]ny member of the district administrative or supervisory staff, including any principal but excluding an employee specified in subsection (4), may be suspended or dismissed at any time during the term of the contract; however, the charges against him or her must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of any crime involving moral turpitude"). 13/

       
       

   84. "Immorality" is defined in subsection (2) of Rule 6B-4.009, Florida Administrative Code, 14/ as follows:

       
       

       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 in the community.

       
       

   85. "Incompetency" is defined in subsection (1) of Rule 6B-4.009, Florida Administrative Code, as follows:

       
       

       Incompetency is defined as inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity. Since incompetency is a relative term, an author- itative decision in an individual case may

       be made on the basis of testimony by members of a panel of expert witnesses appropriately appointed from the teaching profession by the

       Commissioner of Education. Such judgment shall be based on a preponderance of showing the existence of one (1) or more of the following:

       1. Inefficiency: (1) repeated failure to perform duties prescribed by law (Section 231.09, Florida Statutes 15/ ); (2) repeated failure on the part of a teacher to communicate with and relate to children in the classroom, to such an extent that pupils are deprived of minimum educational experience; or (3) repeated failure on the part of an administrator or supervisor to communicate

          with and relate to teachers under his or her supervision to such an extent that the educational program for which he or she is responsible is seriously impaired.

       2. Incapacity: (1) lack of emotional stability; (2) lack of adequate physical ability; (3) lack of general educational background; or (4) lack of adequate command of his or her area of specialization.

       
       

   86. "Misconduct in office" is defined in subsection (3) of Rule 6B-4.009, Florida Administrative Code, as follows:

       
       

       Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.001, F.A.C., and the Principles of

       Professional Conduct for the Education Pro- fession in Florida as adopted in Rule 6B-1.006, F.A.C., which is so serious as to impair the individual's effectiveness in the school system.

       
       

   87. Rule 6B-1.001, Florida Administrative Code, which is referenced in the definition of "misconduct in office" found in Rule 6B-4.009(3), Florida Administrative Code, provides as follows:

       
       

       1. The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of know- ledge, and the nature of democratic citizen- ship. Essential to the achievement of these standards are the freedom to learn and to teach and the guarantee of equal opportunity for all.

       2. The educator's primary professional concern will always be for the student and

          for the development of the student's potential. The educator will therefore strive for pro- fessional growth and will seek to exercise

          the best professional judgment and integrity.

       3. Aware of the importance of maintaining the respect and confidence of one's colleagues,

       of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.

       
       

   88. Rule 6B-1.006, Florida Administrative Code, which is also referenced in the definition of "misconduct in office" found in Rule 6B-4.009(3), Florida Administrative Code, provides, in pertinent part, as follows:

       
       

       (1) The following disciplinary rule shall constitute the Principles of Professional

       Conduct for the Education Profession in Florida. . . .

       1. Obligation to the student requires that the individual:

          1. Shall make reasonable effort to protect the student from conditions harmful to

       the student's mental and/or physical health and/or safety.

       
       

   89. The School Board has adopted various rules that, like Rule 6B- 1.006(3)(a), Florida Administrative Code, are designed to protect students from harm.

       
       

   90. Among these rules are School Board Rules 6Gx13-4A-1.21(I), 6Gx13-5A- 1.062(IV)(B) and 6Gx13-5D-1.07.

       
       

   91. School Board Rule 6Gx13-4A-1.21(I) provides as follows: Employee Conduct

       All persons employed by The School Board of Dade County, Florida are representatives of the Dade County Public Schools. As such, they are expected to conduct themselves in a manner that will reflect credit upon them- selves and the school system.

       Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited.

   92. School Board Rule 6Gx13-5A-1.062(IV)(B) provides as follows: Child Abuse

       An abused child is defined as any person

       under 18 years of age who has been subjected to willful or negligent acts which result in: neglect; malnutrition; sexual abuse; physical injury; mental injury; or failure to provide sustenance, clothing, shelter, or medical treatment.

       
       

       1. Reporting Procedures

          1. Any person, including, but not limited to, physician, nurse, teacher, social worker, or employee of a public or private facility serving children, who has reason(s) to suspect or believe that a child has been

             subject to child abuse, shall report or cause reports to be made to the Department of Health and Rehabilitative Services (HRS), Single Intake, or the State of Florida,

             Child Abuse Registry, Tallahassee, Florida.

          2. All alleged reports of physical injury to students by Board employees must be immediately reported to the Special Invest- igative Unit for investigation. The Special Investigative Unit will be responsible for reporting these incidents to HRS.

       2. Personnel willfully failing to report or cause a report of a complaint of child abuse when brought to their attention will be subject to disciplinary action.

       
       

       (Section 415.504(1), Florida Statutes, likewise requires a School Board employee "who knows, or has reasonable cause to suspect, that a child is an abused . . . child 16/ [to] report such knowledge or suspicion to the [D]epartment [of Health and Rehabilitative Services].")

       
       

   93. School Board Rule 6Gx13-5D-1.07 provides as follows:

       
       

       The administration of corporal punishment in the Dade County Public Schools is strictly prohibited. The Dade County Public Schools has implemented comprehensive programs for the alternative control of discipline. These programs include, but are not limited to, counseling, timeout rooms, in-school suspension centers, student mediation and conflict resolution, parental involvement, alternative education programs, and other forms of positive reinforcement.

       In addition, suspensions and/or expulsions are available as administrative disciplinary actions depending upon the severity of the misconduct. Procedures are in place for students to make up work missed while on suspension, or to participate in an alter- native program if recommended for expulsion.

       
       

       (The School Board adopted School Board Rule 6Gx13-5D-1.07 in accordance with Section 230.23(6)(c), Florida Statutes, which authorizes a school board "to prohibit the use of corporal punishment, provided the school board adopts or has adopted a written program of alternative control or discipline." "Corporal punishment," as that term is used in Section 230.23(6)(c), Florida Statutes, and elsewhere in The Florida School Code, is defined in Section 228.041(27), Florida Statutes, as follows:

       
       

       Corporal punishment is the moderate use of physical force or physical contact by a teacher or principal as may be necessary to

       maintain discipline or to enforce a school rule. However, the term "corporal punishment" does not include the use of such reasonable force by a teacher or a principal as may be

       necessary for self-protection or to protect other students from disruptive students.)

       
       

   94. While a School Board employee is prohibited from using physical force to punish a student, physical force may be used under certain circumstances to restrain a disruptive student, provided School Board-authorized and approved physical restraint techniques and strategies are utilized. If the employee does not utilize the School Board-authorized and approved physical restraint techniques and strategies and instead uses excessive physical force which exposes the student to harm, the employee is guilty of violating Rule 6B-1.006, Florida Administrative Code. To determine whether the force used by the employee was excessive all of the circumstances surrounding the incident must be examined. Cf. Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 1408, 1415 (1977)(excessive force is force that is "not reasonably believed at the time to be necessary for the child's discipline or training;" "[a]ll of the circumstances are to be taken into account in determining whether punishment [of a student by a teacher] is reasonable in a particular case;" "[a]mong the most important considerations are the seriousness of the offense [committed by the child], the attitude and past behavior of the child, the nature and severity of the punishment, the age and strength of the child, and the availability of less severe but equally effective means of discipline"); B.R. v. Department of Health and Rehabilitative Services, 558 So.2d 1027, 1029 (Fla. 2d DCA 1989)("Whether corporal punishment is excessive must be proved in each case by competent, substantial evidence, and all relevant issues presented must be considered without resort to arbitrary presumptions fixed by the passage of time"); Kama v. State, 507 So.2d 154, 158-59 (Fla. 1st DCA 1987)("[i]t is not possible to legislatively lay down any fixed parameters of 'reasonable discipline' of a child;" "[w]hether in any particular case the punishment inflicted was permissive or excessive must necessarily depend on the age, condition, and disposition of the child, as well as the attendant circumstances").

       
       

   95. "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) if material issues of fact are in dispute." 17/ Sublett v. District School Board of Sumter County, 617 So.2d 374, 377 (Fla. 5th DCA 1993).

       
       

   96. A School Board employee against whom a dismissal proceeding has been initiated must be given a Notice of Specific Charges prior to the Section 120.57(1) hearing. See Section 231.3605(2)(c), Florida Statutes. Although the notice "need not be set forth with the technical nicety or formal exactness required of pleadings in court," it should "specify the rule [or statute] the [School Board] alleges has been violated and the conduct which occasioned the violation of the rule [or statute so specified]." Jacker v. School Board of Dade County, 426 So.2d 1149, 1151 (Fla. 3d DCA 1983)(concurring opinion of Judge Jorgenson).

       
       

   97. Any disciplinary action taken against the employee may be based only upon the violations specifically alleged in the Notice of Specific Charges. See Kinney v. Department of State, 501 So.2d 129, 133 (Fla. 5th DCA 1987); Hunter

       v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984).

       
       

   98. At the Section 120.57(1) hearing, the burden is on the School Board to prove these allegations contained in the Notice of Specific Charges. The Third District Court of Appeal has held that the School Board's proof need only meet the preponderance of the evidence standard. See Allen v. School Board of Dade

       County, 571 So.2d 568, 569 (Fla. 3d DCA 1990)("[w]e . . . find that the hearing officer and the School Board correctly determined that the appropriate standard of proof in [School Board employee] dismissal proceedings was a preponderance of the evidence;" "[t]he instant case does not involve the loss of a license and, therefore, Allen's losses are adequately protected by the preponderance of the evidence standard"); Dileo v. School Board of Dade County, 569 So.2d 883, 884 (Fla. 3d DCA 1990)("[w]e disagree that the required quantum of proof in a teacher dismissal case is clear and convincing evidence, and hold that the record contains competent and substantial evidence to support both charges by a preponderance of the evidence standard"). Inasmuch as this holding has not been overruled 18/ or receded from, it must be followed by the School Board, which is located within the jurisdictional boundaries of the Third District. See Pardo v. State of Florida, 596 So.2d 665, 666-67 (Fla. 1992).

       
       

   99. In the instant case, the School Board presented clear and convincing evidence 19/ in support of Count III of the Notice of Specific Charges it served on Respondent prior to the final hearing, but it failed to prove, by even a preponderance of the evidence, the allegations set forth in Counts I and II of the Notice.

       
       

   100. The Notice alleged that Respondent engaged in conduct constituting "immorality as defined by Fla. Admin. Code Rule 6B-4.009(2)"(Count I), "incompetency due to inefficiency as defined by Fla. Admin. Code Rule 6B- 4.009(1)(a)"(Count II), and "misconduct in office which is so serious as to impair his effectiveness in the school system" (Count III) in that: on or about March 10, 1994, while "employed by the Dade County Public Schools as a paraprofessional and assigned to Hialeah Middle School," he "willfully neglected his duties and failed to comply with duly promulgated School Board Rules" when he: "A. kicked an autistic student several times and caused physical injury to the student in the presence of students, teacher aides and another teacher; and

        B. failed to report in violation of section 415.504, Fla. Stat. that a teacher physically abused said autistic student by hitting him repeatedly and causing physical injury to the student in the presence of others."

        
        

   101. The record clearly and convincingly establishes, as alleged in the Notice, that on March 10, 1994, while working as an educational support employee of the School Board assigned to HMS, Respondent willfully "kicked an autistic student [M.A.] several times . . . in the presence of students, teacher aides and [one or more] teacher[s]" 20/ and willfully "failed to report that a teacher [Tharpe] abused said autistic student by hitting him [three or four times] and causing physical injury to the student in the presence of others." The record also clearly and convincingly establishes, as further alleged in the Notice, that: in willfully kicking M.A., Respondent acted in derogation of the provisions of School Board Rule 6Gx13-4A-1.21(I) prohibiting "unseemly" conduct inasmuch as he used more force than was reasonably necessary to effectively and safely deal with M.A.'s "acting out behavior" and he acted in a manner that was inconsistent with the SPM training he had received; 21/ in willfully failing to report that Tharpe had hit M.A., Respondent acted in a manner that was inconsistent with the reporting requirements of School Board Rule 6Gx13-5A- 1.062(IV)(B); these actions on Respondent's part constituted a breach of his obligation to make a reasonable effort to protect students at HMS from conditions harmful to their well-being and safety; the breach was sufficiently serious as to impair his effectiveness as a teacher assistant at the school; and therefore it amounted to "misconduct in office," as that term is defined in Rule 6B-4.009(3), Florida Administrative Code. See Forehand v. School Board of Gulf County, 600 So.2d 1187, 1191 (Fla. 1st DCA 1992).

   102. While Respondent displayed very poor judgement and acted inappropriately in willfully kicking M.A. and failing to report Tharpe's excessive use of force against M.A., such conduct, contrary to the allegations made in Count I of the Notice, does not meet the definition of "immorality" set forth in Rule 6B-4.009(2), Florida Administrative Code. Furthermore, because it has not been shown, by even a preponderance of the evidence, that Respondent has repeatedly deviated from the standards of conduct the School Board has prescribed for its employees, contrary to the allegations made in Count II of the Notice, neither is Respondent guilty of "incompetency" due to "inefficiency," as described in Rule 6B-4.009(1)(a), Florida Administrative Code.

        
        

   103. Nonetheless, inasmuch as the record clearly and convincingly establishes that Respondent is guilty of "misconduct in office," as alleged in Count III of the Notice of Specific Charges, the School Board has "just cause" to terminate Respondent's employment as an annual contract educational support employee of the School Board.

        
        

   104. It is the recommendation of the Hearing Officer that the School Board exercise its authority to terminate Respondent for such "just cause," given the absence of mitigating circumstances sufficient to justify, in light of the seriousness of Respondent's misconduct, the imposition of less severe disciplinary action.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered sustaining Respondent's

suspension and dismissing him as an employee of the School Board of Dade County,

Florida.

DONE and ENTERED in Tallahassee, Leon County, Florida, this 25th day of April, 1996.

STUART M. LERNER, 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 25th day of April, 1996.

ENDNOTES

1/ When questioned by counsel for the School Board concerning their actions during the incident involving M.A. that occurred in Merkerson's classroom on March 10, 1994, both Respondent and Tharpe invoked their right to remain silent under State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973).

2/ No other, more recent collective bargaining agreement between UTD and the School Board was offered into evidence at the final hearing.

3/ Appendix H of the manual states the following with respect to who should be the "team leader" when two or more staff members are on the scene of an "explosive event" and what the "team leader's" duties are:

Team Leader Duties

1. Assess situation

2. Develop the intervention strategy

3. Direct support staff

4. Be the primary communicator to the child

5. Document the incident Who Leads

1. First staff on the scene of the crisis

2. Most experienced and confident

3. Person who has the best relationship with the disruptive student

4/ Respondent received his training approximately three ago from Jill Brookner, an educational specialist with the School Board. He was, according to Brookner, whose testimony the Hearing Officer credits, an "excellent student."

5/ HMS is the only school in the School Board's Region 1 to offer a special program of instruction for autistic students.

6/ Velazquez was aware of M.A.'s history of engaging in "acting out behavior" in school. He therefore approached M.A. with caution.

7/ There was no imminent threat to Tharpe's own safety and well-being when he struck M.A. with the piece of wood.

8/ At, or very close to, the time of the incident, Respondent had foot problems. Because of these problems, he wore sandals instead of shoes to work.

9/ It appears that Respondent's primary objective was not to injure M.A., but to subdue him.

10/ Kicking a student (regardless of the amount of force used) is not a School Board-authorized and approved physical restraint technique. If a School Board employee is unable, without assistance, to effectively and safely deal with an "explosive event" using School Board-authorized and approved physical restraint techniques, the employee, rather than initiating a physical confrontation with the "acting out" student, should make every reasonable effort to get out of harm's way and to then seek the help of other staff members to control the situation.

11/ M.A. has limited communication skills.

12/ Section 231.3605, Florida Statutes, which took effect July 1, 1994, provides that an "educational support employee," may be terminated "for the reasons stated in the collective bargaining agreement, or in school board rule in cases where a collective bargaining agreement does not exist." An

"educational support employee," as that term is used in Section 231.3605, Florida Statutes, includes a "teacher assistant."

13/ In Rosario v. Burke, 605 So.2d 523, 524 n.1 (Fla. 2d DCA 1992), the Second District Court of Appeal explained as follows its holding that the provisions of Section 231.36(6)(b), Florida Statutes, were applicable to non-certified school board personnel:

We are not completely convinced that the legislature initially intended the narrow grounds for dismissal described in section 231.36(6)(b) to apply to nonprofessional supervisory staff, as compared to principals, assistant superintendents and other certified positions. Nevertheless, the statute was interpreted to include such public employees in 1981, after the enactment of section 447.201-.609, which applies generally to public employees. See Smith v. School Bd.

of Leon County, 405 So.2d 183 (Fla. 1st

DCA 1981). Section 231.36 was amended after the Smith decision without any disapproval of that decision. If the statute requires modification or clarification concerning

nonprofessional supervisory school personnel, that change should occur in the legislature.

Following the Second District's decision in Rosario, the 1994 Florida Legislature enacted Section 231.3605, Florida Statutes, which, as noted above, provides that an "educational support employee" (defined as "any person employed by a district school system who is so employed as a teacher aide, a teacher assistant, an education paraprofessional, a member of the transportation department, a member of the operations department, a member of the maintenance department, a member of food service, a secretary, or a clerical employee, or any other person who by virtue of his or her position of employment is not required to be certified by the Department of Education or school board pursuant to s. 231.1725") may be terminated "for reasons stated in the collective bargaining agreement, or in school board rule in cases where a collective bargaining does not exist." The statute further prescribes the procedure that must be followed "[i]n the event a superintendent seeks termination of an [educational support] employee." In view of the enactment of Section 231.3605, Florida Statutes, the provisions of Section 231.36(6)(b), Florida Statutes, can no longer be reasonably construed as being directly applicable to non-certified school board personnel. These provisions, however, may be looked to for guidance in determining what constitutes just cause for suspension or dismissal, within the meaning of Article IV, Section 1, of the UTD Contract.

14/ In Smith v. School Board of Leon County, 405 So.2d 183 (Fla. 1st DCA 1981), the First District Court of Appeal commented that although the definitions found in "State Board Rule 6B-4.009," on their face, "apply to instructional personnel only- not to a school district's administrative employees[, n]evertheless, the[se] definitions serve as useful analogues to the issues before [the court]," to wit: whether the appellant, who was a non-instructional employee of the Leon County School Board, had engaged in conduct that constituted either "misconduct in office" or "gross insubordination," as those terms are used in Section 231.36(6), Florida Statutes.

15/ Section 231.09, Florida Statutes, provides as follows:

Members of the instructional staff of the public schools shall perform duties prescribed by rules of the school board. Such rules shall include, but not be limited to, rules relating to teaching efficiently and faithfully; using prescribed materials and methods; record- keeping; and fulfilling the terms of any contract, unless released from the contract

by the school board.

16/ An "abused child," "for purposes of [the] reporting requirements" imposed by Section 415.504, Florida Statutes, "means a child whose physical or mental health or welfare is harmed, or threatened with harm, . . . by any person." Section 415.503(1), Fla. Stat.

17/ "A county school board is a state agency falling within Chapter 120 for purposes of quasi-judicial administrative orders." Sublett v. District School Board of Sumter County, 617 So.2d 374, 377 (Fla. 5th DCA 1993).

18/ The Florida Supreme Court has not specifically addressed the issue of whether, in a school board employee dismissal proceeding, the school board must prove its case by a preponderance of the evidence or by clear and convincing evidence. Its recent decision in Department of Banking and Finance v. Osborne Stern and Company, 21 FLW S142, 143 (Fla. March 28, 1996), however, suggests that, if presented with the question, it might differ with the Third District on the matter. In Osborne Stern and Company, the Florida Supreme Court held that, "[b]ecause the imposition of administrative fines under section 517.221(3), like license revocation proceedings, are penal in nature and implicate significant property rights, the extension of the clear and convincing evidence standard to justify the imposition of such a fine is warranted." See Rosario v. Burke, 605 So.2d 523, 524 (Fla. 2d DCA 1992)("the statute [Section 231.36(6)(b), Florida Statutes] is penal in nature"); School Board of Pinellas County v. Noble, 384 So.2d 205, 206 (Fla. 1st DCA 1980)("[t]his statute [Section 231.36(6), Florida Statutes] is in effect a penal statute, as it imposes sanctions, including suspension or dismissal"); Texton v. Hancock, 359 So.2d 895, 897 (Fla. 1st DCA 1978)("Ms. Texton, as a tenured teacher, had acquired a valuable property right in her expectation of continued employment"). In any event, regardless of which standard is applied in the instant case, the outcome of the case is the same.

19/ Clear and convincing evidence is evidence "of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v.

Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

20/ It has not been shown, by even a preponderance of the evidence, that Respondent's kicks actually "caused physical injury to [M.A.]," as alleged in the Notice.

21/ Respondent's conduct, however, was not in violation of the School Board's rule prohibiting the use of corporal punishment, School Board Rule 6Gx13-5D-1.07 (as clarified by Guideline No. 9 of the School Board's Procedures, which defines "corporal punishment" as "physical force or physical contact applied to the body as punishment"), inasmuch as Respondent was attempting to subdue, not punish,

M.A. when he kicked him.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-0534

The following are the Hearing Officer's specific rulings on the "findings of fact" proposed by the parties in their proposed recommended orders:

The School Board's Proposed Findings

A.1-2. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

A3. To the extent that this proposed finding states that "the terms and conditions of . . . [Respondent's] employment was governed by [the UTD Contract]," it has been accepted and incorporated in substance. To the extent that it states that "the terms and conditions of Tharpe['s] . . . employment was governed by [the UTD Contract]," it has not been incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

A.4. Rejected as a finding of fact because it is more in the nature of a statement of law. (It describes the requirements imposed by a School Board rule.)

A.5-6. To the extent that these proposed findings address Respondent's awareness of the School Board rules referenced therein, they are accepted and incorporated in substance. To the extent that they address Tharpe's awareness of these rules, they have not been incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

A.7-28. Accepted and incorporated in substance.

A.29-30. Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

1. Accepted and incorporated in substance.

2. To the extent that this proposed finding states that the School Board policy in question prohibits School Board employees from using any physical force against students for any purpose, it has been rejected because it lacks sufficient evidentiary/record support. To the extent that it states that the policy prohibits School Board employees from using any physical force against students for purposes of punishment, it has been accepted and incorporated in substance.

3. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

4. Rejected as a finding of fact because it is more in the nature of a statement of law.

5. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

6. Accepted and incorporated in substance.

7. To the extent that this proposed finding states that "[p]rior to March 10, 1994, . . . Respondent had successfully taken and completed the S.P.M. training course," it has been accepted and incorporated in substance. To the extent that it states that "[p]rior to March 10, 1994, Tharpe. . . had successfully taken and completed the S.P.M. training course," it has not been incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

A.38-45. Accepted and incorporated in substance.

1. To the extent that this proposed finding states that striking a student with "a piece of wood, a foot or hand" is not a School-Board authorized and approved physical restraint technique, it has been accepted and incorporated in substance. To the extent that it states that School Board employees, as part of their SPM training, are taught that it is inappropriate to use their feet or

   hands for any purpose during an "explosive event" involving an "acting out" student, it has been rejected because it lacks sufficient evidentiary/record support.

2. To the extent that this proposed finding states that School Board employees, as part of their SPM training, are not taught how to oppose force, it has been accepted and incorporated in substance. To the extent that it states that School Board employees, as part of their SPM training, are not taught how to evade or deflect force in order to avoid or minimize injury, it has been rejected because it lacks sufficient evidentiary/record support.

3. Accepted and incorporated in substance.

4. To the extent that this proposed finding states that kicking a student is not a School Board-authorized and approved physical restraint technique, it has been accepted and incorporated in substance. To the extent that it states that under no circumstances is a School Board employee permitted to use his feet during an encounter with an "acting out" student, it has been rejected because it lacks sufficient evidentiary/record support.

5. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

A.51-54. Accepted and incorporated in substance.

A.55. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

A.56-63. Accepted and incorporated in substance.

1. Not incorporated in this Recommended Order because, even if true, it would not alter the outcome of the instant case.

2. First sentence: Accepted and incorporated in substance; Remaining sentences: Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

A.66-69. Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

A.70-73. Accepted and incorporated in substance.

1. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

2. Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact. See T.S. v. Department of Health and Rehabilitative Services, 654 So.2d 1028, 1030 (Fla. 1st DCA 1995)(hearing officer's factual findings which "merely summarize[d] the testimony of witnesses" were "insufficient").

3. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

1. To the extent that this proposed finding states that M.A. was still "being restrained" when Tharpe hit him the second time and thereafter, it has been rejected because it lacks sufficient evidentiary/record support. Otherwise, it has been accepted and incorporated in substance.

2. Rejected because it lacks sufficient evidentiary/record support. B.3-4. and C.1. Accepted and incorporated in substance.

C.2. Rejected because it lacks sufficient evidentiary/record support. C.3-4. Accepted and incorporated in substance.

Respondent's Proposed Findings

1-17. Accepted and incorporated in substance.

18. To the extent that this proposed finding states that, at, or very close to, the time of the incident, Respondent had foot problems, it has been accepted and incorporated in substance.

19-22. Rejected because they lack sufficient evidentiary/record support.

1. To the extent that this proposed finding states that Respondent was simply using his foot as a "blocking" device and did not kick M.A., it has been

   rejected because it lacks sufficient evidentiary/record support. Otherwise, it has been accepted and incorporated in substance.

2. Rejected because it lacks sufficient evidentiary/record support.

3. To the extent that this proposed finding states that the evidence/record is insufficient to support a finding of fact that M.A. was injured as a result of being kicked by Respondent, the statement has been accepted as true and, accordingly, no such finding of fact has been made. To the extent that this proposed finding suggests that the Hearing Officer affirmatively find that M.A. suffered no injury as a result of being kicked by Respondent, the Hearing Officer has declined to make such a finding because it too lacks sufficient evidentiary/record support. Furthermore, to the extent that this proposed finding states that Respondent was simply using his foot as a "blocking" device and did not kick M.A., it also has been rejected because it lacks sufficient evidentiary/record support.

4. To the extent that this proposed finding states that Respondent was simply using his foot as a "blocking" device and did not kick M.A., it has been rejected because it lacks sufficient evidentiary/record support. Otherwise, it has been accepted and incorporated in substance.

27-30. Accepted and incorporated in substance.

1. To the extent that this proposed finding states that M.A. had a history of acting in a physically aggressive manner in school, it has been accepted and incorporated in substance. To the extent that it asserts that "teachers and paraprofessionals feared the student," it has been rejected because it lacks sufficient evidentiary/record support.

2. Rejected because it lacks sufficient evidentiary/record support.

3. To the extent that this proposed finding states that Velazquez acted cautiously in dealing with M.A., it has been accepted and incorporated in substance. Otherwise, it has rejected because it lacks sufficient evidentiary/record support.

4. Accepted and incorporated in substance.

5. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

36-41. Accepted and incorporated in substance.

42-43. Rejected because they lack sufficient evidentiary/record support.

1. First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it lacks sufficient evidentiary/record support.

2. Accepted and incorporated in substance.

COPIES FURNISHED:

Donnise A. DeSouza, Esquire Reginald J. Clyne, Esquire Clyne and Associates, P.A. Douglas Centre, Penthouse 2 2600 Douglas Road

Coral Gables, Florida 33134

Leslie A. Meek, Esquire United Teachers of Dade 2929 Southwest Third Avenue Miami, Florida 33129

Octavio J. Visiedo, Superintendent of Schools Dade County School Board

1450 Northeast Second Avenue Suite 403

Miami, Florida 33132-1308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 95-000534

Orders for Case No: 95-000534