STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SCHOOL BOARD OF DADE COUNTY, ) FLORIDA, )
)
Petitioner, )
)
vs. ) CASE NO. 95-3832
)
ROBERT ROLLE, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case on November 8, 1995, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Twila Hargrove Payne, Esquire
1450 Northeast Second Avenue, Suite 400
Miami, Florida 33132
For Respondent: Leslie A. Meek, Esquire
United Teachers of Dade 2929 Southwest Third Avenue Miami, Florida 33129
STATEMENT OF THE ISSUES
Whether Respondent engaged in the conduct (to: wit: "conduct unbecoming a School Board employee" and "misconduct in office") alleged in the Notice of Specific Charges?
If so, whether such conduct provides the School Board of Dade County, Florida, just or proper cause to take disciplinary action against him?
If so, what specific disciplinary action should be taken?
PRELIMINARY STATEMENT
On July 12, 1995, the School Board of Dade County, Florida, (School Board) suspended Respondent from his position as a school monitor and initiated a dismissal proceeding against him "for conduct unbecoming a School Board employee." By letter dated July 20, 1995, Respondent, through his counsel, requested a Section 120.57 formal hearing on the matter. On July 31, 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 September 27, 1995, the School Board served on Respondent its Notice of Specific Charges (Notice) against Respondent. The Notice alleged that: on or about March 17, 1995, while "monitoring the cafeteria spill-out area and courtyard at John F. Kennedy Middle School," Respondent "became angry [at a student who was shaking the double gate separating the cafeteria spill-out area and the courtyard] and threw his hand-held radio at the double-gate;" the "radio shattered" on impact; "the battery that was in the radio struck another student that was sitting at a lunch table in the cafeteria spill-out area;" and the "student struck by the battery suffered a gash to the right side of his forehead." According to the Notice, Respondent's conduct constituted "conduct unbecoming a School Board employee, warranting dismissal pursuant to School Board Rule 6Gx13-4A-1.21(1) [and] Sections 231.02 and 447.209 Fla. Stat." and "misconduct in office, warranting dismissal pursuant to Article XXI of the UTD contract, Rule 6B-4.009 F.A.C. [and] Sections 231.36(6)(b) and 447.209 Fla.
Stat."
At the outset of the November 8, 1995, formal hearing conducted by the Division Hearing Officer assigned the case, the School Board requested that the Hearing Officer take official recognition of School Board Rule 6Gx13-4A-1.21, Rules 6B-1.006 and 6B-4.009, Florida Administrative Code, and the collective bargaining agreement between the School Board and the United Teachers of Dade, effective July 1, 1994, through June 30, 1997. Respondent requested that the Hearing Officer take official recognition of Section 784.045 Florida Statutes. The Hearing Officer granted both the School Board's request and Respondent's request.
During the evidentiary portion of the hearing, the School Board presented the testimony of the following four witnesses: Valerie Carrier, the principal of John F. Kennedy Middle School; Jean LaDouceur, the student referenced in the Notice of Specific Charges who allegedly "suffered a gash to the right side of his forehead" as a result of being struck by the battery in Respondent's hand- held radio; Dorys Cadet, another student, who was sitting with Jean when the incident described in the Notice occurred; and Robert Staelens, a former police officer with the School Board police department. In addition to the testimony of these four witnesses, the School Board offered, and the Hearing Officer received, thirteen exhibits (Petitioner's Exhibits 1 through 13) into evidence. Respondent testified in his own behalf. He presented no other evidence.
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 (30 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 December 6, 1995. On December 26, 1995, the School Board filed an unopposed motion requesting an extension of the deadline for the filing of post-hearing submittals. By order issued December 28, 1995, the School Board's motion was granted and the filing deadline was extended to January 16, 1996.
The School Board filed a proposed recommended order on January 16, 1996.
Respondent filed a proposed recommended order on January 19, 1996. These 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 in this case, and the record as a whole, the following Findings of Fact are made:
The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Dade County, Florida.
Respondent is now, and was at all times material to the instant case, an employee of the School Board occupying a school monitor position. He currently is under suspension as a result of the incident described in the Notice of Specific Charges. Other than this suspension, he has had no formal disciplinary action taken against him during the period of his employment with the School Board. 1/
Respondent's employment with the School Board began on March 10, 1993, when he was hired to fill an hourly school monitor position at John F. Kennedy Middle School (JFK). At the beginning of the 1993-1994 school year, Respondent became a full-time school monitor at JFK. He remained in that position until he was administratively reassigned in March of 1995, following the incident which led to the initiation of the instant disciplinary proceeding.
As a school monitor, Respondent is 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, 1994, through June 30, 1997 (UTD Contract).
Article V of the UTD Contract addresses the subject of a "employer rights." Section 1 of Article V provides, in part, that the School Board has the exclusive right to suspend, dismiss or terminate employees "for just cause."
Article VIII of the UTD Contract addresses the subject of a "safe learning environment." Section 1, paragraph A, of Article VIII provides as follows:
A safe and orderly learning environment is a major priority of the parties. Such an environment requires that disruptive behavior be dealt with safely, fairly, consistently
and in a manner which incorporates progressive disciplinary measures specified in the Code of Student Conduct.
Section 1, paragraph D, of Article VIII provides, in part, as follows:
The parties recognize the potential for difficult circumstances and problems related to the use of corporal punishment. Accord- ingly, 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 alternatives for dealing with student behavior.
Article XXI of the UTD Contract addresses the subject of "employee rights and due process." Section 1, paragraph B, of Article XXI provides, in
part, that "[d]ismissals and suspensions shall be effected in accordance with applicable Florida statutes, including the Administrative Procedures Act (APA)." Section 3, paragraph D, of Article XXI provides that educational support personnel who have completed their probationary period may be dismissed for just cause, which
includes, but is not limited to, misconduct
in office, incompetency, gross insubordination, willful neglect of duty, immorality and/or conviction of a crime involving moral tur- pitude. Such charges are defined, as appli- cable, in State Board Rule 6B-4.009.
Section 3, paragraph F, of Article XXI provides, in part, that such an educational support employee is entitled to an appeal hearing on the Superintendent's recommendation that he or she be terminated and is further entitled to be served by the School Board with a Notice of Specific Charges prior to the hearing.
Valerie Carrier is now, and was at all times material to the instant case, the principal of JFK.
As principal, Carrier is responsible for the overall operation of the school.
It is her obligation to take the necessary measures to maintain a safe environment for the school's students.
There is a security staff at the school, comprised of school monitors, that assists Carrier in carrying out this responsibility.
According to their job description, the school monitors on the school's security staff have the following "basic objectives" and "job tasks/responsibilities:"
BASIC OBJECTIVES
Under general direction from the school principal, he/she performs duties to monitor student activity in promoting and maintaining a safe learning environment and insures that appropriate standards of conduct are followed.
JOB TASKS/RESPONSIBILITIES
Visually observes student behavior during school hours, on school property. Reports serious disturbances to the school admini- stration and resolves minor altercations.
Physically patrols all school buildings, grounds, and determines reason for the pre- sence of outsiders. Stops and questions all students not in class during class time.
Monitors parking lots and student gathering areas (before, during and after school hours). Reports any safety or security problems to the administration. Performs any other duties set by the school principal or his/her designee.
Carrier assigns each school monitor a post at which the monitor performs these job duties.
If a monitor observes, from his or her post, a student engaging in inappropriate behavior, the monitor may attempt to verbally redirect the student, but the monitor is not permitted to impose consequences for the student's behavior.
Each monitor is issued a hand-held radio to be used for communicating with other school personnel. If a misbehaving student fails to comply with a monitor's verbal instructions, the monitor is required to use the hand-held radio to advise an administrator of the situation.
Joshua Cummings was a student at JFK during the 1994-95 school year. He frequently engaged in inappropriate behavior.
Carrier gave the members of her staff, including Respondent, special instructions regarding how they should respond to acts of inappropriate behavior on Joshua's part. 2/ She told them that they should report any such acts directly to her or, in her absence, her designee.
On March 17, 1995, during the first lunch period, Respondent was assigned to a post on the entrance courtyard side of the chain link double-gate that separates the entrance courtyard from the cafeteria spill-out area.
The cafeteria spill-out area is, as its name suggests, an area outside the cafeteria where students gather after eating lunch and wait for their lunch period to end. There is a school monitor posted in the cafeteria spill-out area near the door that students use to exit the cafeteria and enter the spill-out area. Another school monitor is stationed on the other side of the exit door inside the cafeteria.
Pursuant to the standard operating procedure at the school, the chain link double-gate between the entrance courtyard and the cafeteria spill-out area remains closed and locked until the end of the lunch period, when the students are picked up by their teacher. At the teacher's request, the school monitor manning the post on the entrance courtyard side of the double-gate unlocks (with a key) and then opens the double-gate 3/ and lets the students waiting in the cafeteria spill-out area go into the entrance courtyard to meet their teacher.
If it becomes necessary for a student in the spill-out area to use the restroom before the end of the lunch period, the student must reenter the cafeteria, obtain a pass from an administrator 4/ and then leave the cafeteria through the cafeteria's main entrance.
Students are not permitted to use the double-gate to exit the spill- out area before the end of the lunch period.
On March 17, 1995, Joshua Cummings had lunch during the first lunch period (which began at approximately 11:30 a.m. and lasted approximately 30 minutes).
Jean LaDouceur and Dorys Cadet were among the other students who had lunch during the first lunch period on March 17, 1995.
Approximately 100 or more of these students, including Joshua, Jean and Dorys, were in the cafeteria spill-out area, prior to the end of the first
lunch period on this date, when Joshua started shaking the chain-link double- gate and yelling at Respondent to unlock and open the gate so that he (Joshua) could go to the restroom (which was located off the entrance courtyard near the gate).
Respondent was in the area of his assigned post in the entrance courtyard sitting on the steps leading to the school auditorium. He got up and, as he walked toward the double-gate, he told Joshua that Joshua had to wait until the end of the period if he wanted to exit the spill-out area through the double-gate.
Joshua apparently did not want to wait. He continued to shake the double-gate and shout obscenities at Respondent.
Respondent responded in an unseemly and inappropriate manner that evinced a reckless disregard for the safety of Joshua and the other students in the spill-out area who were around him. Instead of continuing his efforts to verbally redirect Joshua or radioing for assistance, Respondent, from his position on the courtyard side of the double-gate, responded to Joshua's misbehavior by angrily hurling his hand-held radio (which had a battery pack attached to it) at the gate near where Joshua (who was on the spill-out area side of the gate) was standing.
The radio hit the gate and shattered.
Jean and Dorys were sitting on a picnic table in the spill-out area approximately twenty feet from the double-gate. There were several other students on or near the table with whom Jean and Dorys were conversing.
The battery pack that had been attached to Respondent's hand-held radio before Respondent threw the radio at the gate wound up striking Jean on the right side of his forehead while he was sitting on the picnic table. (It apparently travelled through a space in the center of the gate.)
Jean started bleeding.
Accompanied by Dorys, Jean went to see Carrier to report what had happened. (To get to Carrier's office, which is off the entrance courtyard, approximately 20 feet from the double gate, they had to reenter the cafeteria because the double-gate was still locked.)
Joshua also went to see Carrier. (He had been "nick[ed]" by a piece of Respondent's shattered radio.)
After speaking with Jean and Joshua, Carrier called fire rescue.
Fire rescue subsequently arrived on the scene and treated Jean's wound.
Jean was advised by the paramedic who treated him to have a physician close the wound with stitches. Jean, however, did not seek further medical attention. (The wound eventually healed, but Jean has a small scar on the right side of his forehead as a result of his injury.)
Carrier also called Jean's and Joshua's parents.
After Jean's and Joshua's parents arrived at school, Carrier met with Respondent to discuss the incident.
Respondent told Carrier what had happened. He went with Carrier to the entrance courtyard where he had been stationed and described how and where he had thrown his hand-held radio.
Carrier picked up the pieces of Respondent's hand-held radio that were lying on the ground near the double-gate.
Respondent also freely and voluntarily, at Carrier's request, prepared a written statement on the day of the incident in which he admitted that earlier that day, at about 11:53 a.m., in response to Joshua's yelling and kicking the double-gate, he had thrown his radio at the gate and that "parts of the radio [had gone] thr[ough] the gate and nick[ed Joshua]."
After hearing the students' and Respondent's accounts of the incident, Carrier had legitimate concerns regarding Respondent's ability to effectively carry out his responsibilities as a school monitor. Respondent's conduct had jeopardized the health, safety and well-being of the very individuals it was his job, as a school monitor, to protect.
Following the completion of an investigation of the incident, the School Board's Superintendent of Schools recommended 5/ that the School Board suspend Respondent and initiate a dismissal proceeding against him.
The School Board took such recommended action at its July 12, 1995, meeting.
CONCLUSIONS OF LAW
The School Board may suspend or dismiss its employees for proper or just cause. See Sections 230.23(5)(f), 231.36 and 447.209, Fla. Stat.; Article V, Section 1, and Article XXI, Section 3, paragraph D, of the UTD Contract.
According to Article XXI, Section 3, paragraph D, of the UTD Contract (which contract contains the terms and conditions of employment of educational support personnel employed by the School Board, including school monitors such as Respondent),
[j]ust cause includes, but is not limited
to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality and/or conviction of a crime in- volving moral turpitude. Such charges are defined, as applicable, in State Board
Rule 6B-4.009. 6/
See also 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"). 7/
"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 Pro- fession as adopted in Rule 6B-1.001, F.A.C., and the Principles of Professional Conduct
for the Education Profession 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.
Rule 6B-1.006, Florida Administrative Code, provides, in pertinent part, as follows:
The following disciplinary rule shall constitute the Principles of Professional
Conduct for the Education Profession in Florida. . . .
Obligation to the student requires that the individual:
Shall make reasonable effort to protect the student from conditions harmful to
the student's mental and/or physical health and/or safety.
Article XXI, Section 3, paragraph D, of the UTD Contract does not contain an exhaustive listing of those things that constitute just cause to suspend or dismiss an educational support employee. 8/ Although it is not specifically mentioned, conduct unbecoming a School Board employee is another ground upon which the School Board may take such action.
School Board Rule 6Gx13-4A-1.21(I) prescribes a standard of conduct, the deviation from which constitutes conduct unbecoming a School Board employee. It 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.
"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." 9/ Sublett v. District School Board of Sumter County, 617 So.2d 374, 377 (Fla. 5th DCA 1993).
Pursuant to Article XXI, Section 3, paragraph F, of the UTD Contract, a School Board educational support 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. 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]." Jaeker v. School Board of Dade County, 428 So.2d 1149, 1151 (Fla. 3d DCA 1983)(concurring opinion of Judge Jorgenson).
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).
At the Section 120.57(1) hearing, the burden is on the School Board to prove these allegations by a preponderance of the evidence. See Allen v. School Board of Dade County, 571 So.2d 568, 569 (Fla. 3d DCA 1990); Dileo v. School Board of Dade County, 569 So.2d 883, 884 (Fla. 3d DCA 1990).
In the instant case, the School Board has met this burden of proof. It has established by a preponderance of the evidence the allegations made in the Notice of Specific Charges that it served on Respondent prior to the hearing, in accordance with Article XXI, Section 3, paragraph F, of the UTD Contract.
The Notice alleged that Respondent engaged in "conduct unbecoming a School Board employee, warranting dismissal pursuant to School Board Rule 6Gx13- 4A-1.21(1) [and] Sections 231.02 and 447.209 Fla. Stat." and "misconduct in office, warranting dismissal pursuant to Article XXI of the UTD contract, Rule 6B-4.009 F.A.C. [and] Sections 231.36(6)(b) and 447.209 Fla. Stat," in that: on or about March 17, 1995, while "monitoring the cafeteria spill-out area and courtyard at John F. Kennedy Middle School," Respondent "became angry [at a student who was shaking the double gate separating the cafeteria spill-out area and the courtyard] and threw his hand-held radio at the double-gate;" the "radio shattered" on impact; "the battery that was in the radio struck another student that was sitting at a lunch table in the cafeteria spill-out area;" and the "student struck by the battery suffered a gash to the right side of his forehead."
Notwithstanding Respondent's testimony at hearing that he did not throw his radio at the gate, the greater weight of the evidence establishes that he did indeed engage in such unseemly and inappropriate conduct and that his actions not only exposed the students nearby (whose safety it was his obligation to protect) to the threat of physical harm, but they also directly resulted in actual physical injury (in the form of a gash on the forehead) to one of these students, Jean LaDouceur, who was hit by the battery pack that had been attached to the radio before it shattered upon hitting the gate.
While it may not have been Respondent's intention to injure Jean or any other student, including Joshua Cummings (whose misbehavior prompted Respondent to throw his radio), such injury was not an unforeseeable consequence of his actions. Respondent should have realized (given how the gate was constructed) that, by throwing the radio at the gate, he was endangering the physical well-being of the very students it was his duty, as a school monitor, to protect.
Respondent's reckless conduct was a breach of his obligation to protect these students that was sufficiently serious as to impair his effectiveness as a school monitor. Such conduct therefore constituted "misconduct in office," as alleged in the Notice of Specific Charges. See Forehand v. School Board of Gulf County, 600 So.2d 1187, 1191 (1st DCA 1992).
It also was a departure from the standard of conduct prescribed for School Board employees in School Board Rule 6Gx13-4A-1.21(I) and therefore, in addition, constituted "conduct unbecoming a School Board employee," as further alleged in the Notice of Specific Charges.
Inasmuch as the preponderance of the evidence establishes that Respondent is guilty of "misconduct in office" and "conduct unbecoming a School Board employee," as alleged in the Notice of Specific Charges, the School Board has "just cause," pursuant to Article XXI, Section 3, paragraph D, of the UTD Contract, to terminate Respondent's employment.
It is the recommendation of the Hearing Officer, in light of the seriousness of Respondent's misconduct, that the School Board exercise its authority to terminate Respondent for such "just cause" (rather than take less severe disciplinary action against him). Termination will ensure that the students at JFK will not again be subjected to a similar violent outburst of anger on Respondent's part.
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 19th day of February, 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 19th day of February, 1996.
ENDNOTES
1/ He has been informally disciplined, however, for leaving his post.
2/ As a result, prior to March 17, 1995, Respondent was aware that Joshua was a behavior problem.
3/ The double-gate swings out into the entrance courtyard when unlocked and opened.
4/ An administrator is generally stationed near the main entrance to the cafeteria.
5/ Carrier had also recommended Respondent's dismissal.
6/ 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 these 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.
7/ 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, are applicable to non-certified 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.
8/ This is evidenced by the use of the phrase, "but is not limited to," in this provision of the contract.
9/ "A county school 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).
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-3832
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
Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.
To the extent that this proposed finding states that Respondent was a member of UTD (as opposed to a member of a collective bargaining unit that UTD represents), it has been rejected because it lacks sufficient evidentiary/record support. Otherwise, it has been accepted and incorporated in substance.
3-7. Accepted and incorporated in substance.
8. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
9-11. Accepted and incorporated in substance.
12. First and second sentences: Not incorporated in this Recommended Order because, even if true, they would add only unnecessary detail to the factual findings made by the Hearing Officer; Remaining sentences: Accepted and incorporated in substance.
13-17. Accepted and incorporated in substance.
Last sentence: Rejected because it lacks sufficient evidentiary/record support; Remaining sentences: Accepted and incorporated in substance.
Accepted and incorporated in substance.
To the extent that this proposed finding states that Joshua sustained the injuries described in the last sentence of the School Board's proposed finding 18, it has been rejected because it lacks sufficient evidentiary/record support. Otherwise, it has been accepted and incorporated in substance.
Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
22-23. Accepted and incorporated in substance.
Last sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Remaining sentences: Accepted and incorporated in substance.
Accepted and incorporated in substance.
Not incorporated in this Recommended Order because, even if true, it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Not incorporated in this Recommended Order because, even if true, it would add only unnecessary detail to the factual findings made by the Hearing Officer. (Respondent has not been charged with making a false statement to Officer Staelens or anyone else in connection with his March 17, 1995, altercation with Joshua.)
Accepted and incorporated in substance.
29-30. Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
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").
Accepted and incorporated in substance.
Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Respondent's Proposed Findings
1-12. Accepted and incorporated in substance.
13. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
14-15. Rejected as findings of fact because they are more in the nature of summaries of testimony adduced at hearing than findings of fact.
16-17. To the extent that this proposed finding states that Respondent did not intend to throw his radio in the general direction of where Joshua and other students were located (behind the double-gate), it has been rejected because it lacks sufficient evidentiary/record support. To the extent that this proposed finding states that it was not Respondent's intention to actually injure Joshua or any other student, it has been accepted and incorporated in substance.
COPIES FURNISHED:
Twila Hargrove Payne, Esquire 1450 Northeast Second Avenue Suite 400
Miami, Florida 33132
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.
| Issue Date | Proceedings |
|---|---|
| Mar. 20, 1996 | Final Order of the School Board of Dade County, Florida filed. |
| Feb. 19, 1996 | Recommended Order sent out. CASE CLOSED. Hearing held 11/08/95. |
| Jan. 26, 1996 | Respondent's Proposed Recommended Order filed. |
| Jan. 19, 1996 | Respondent's Proposed Recommended Order filed. |
| Jan. 17, 1996 | Petitioner School Board's Proposed Recommended Order W/tagged attachment filed. |
| Jan. 16, 1996 | Petitioner School Board's Proposed Recommended Order filed. |
| Dec. 28, 1995 | Order sent out. (PRO's due 1/16/96) |
| Dec. 26, 1995 | (Petitioner) Motion to Extend Time to File Proposed Recommended Order filed. |
| Dec. 11, 1995 | Letter to Hearing Officer from Dean Bunch Re: Color reproductions of exhibits 5, 6 and composite exhibits 4 through 7 filed. |
| Dec. 06, 1995 | (Transcript) filed. |
| Oct. 16, 1995 | Order Granting Continuance sent out. (hearing rescheduled for 11/8/95; 9:00am; Miami) |
| Oct. 13, 1995 | (Petitioner) Notice of Taking Deposition filed. |
| Oct. 10, 1995 | (Leslie A. Meek) Notice of Filing Answers to Interrogatories; Respondent's Answer to Request for Production filed. |
| Oct. 06, 1995 | Petitioner`s First Set of Interrogatories to Respondent; Petitioner`s First Request for Production filed. |
| Oct. 05, 1995 | (Petitioner) Notice of Specific Charges filed. |
| Oct. 05, 1995 | (Respondent) Motion for Continuance filed. |
| Sep. 12, 1995 | Order Requiring Notice of Specific Charges sent out. |
| Sep. 12, 1995 | Notice of Hearing sent out. (hearing set for 10/26/95; 9:00am; Miami) |
| Aug. 14, 1995 | (Petitioner) Response to Initial Order filed. |
| Aug. 08, 1995 | Initial Order issued. |
| Jul. 31, 1995 | Agency Action Letter; Agency referral letter; Request for Hearing, letter form filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 14, 1996 | Agency Final Order | |
| Feb. 19, 1996 | Recommended Order | School Board had just cause to dismiss school monitor who threw a radio at a chain link gate behind which were students, one of whom was injured. |
DADE COUNTY SCHOOL BOARD vs JOHN N. ACKLEY, 95-003832 (1995)
MIAMI-DADE COUNTY SCHOOL BOARD vs ROBERT BOUNDY, 95-003832 (1995)
MIAMI-DADE COUNTY SCHOOL BOARD vs ROBERT F. WARD, 95-003832 (1995)
MIAMI-DADE COUNTY SCHOOL BOARD vs ANGEL GUZMAN, 95-003832 (1995)
BROWARD COUNTY SCHOOL BOARD vs TORRANCE SMITH, 95-003832 (1995)
