STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
THE SCHOOL BOARD OF MIAMI-DADE ) COUNTY,1 )
)
Petitioner, )
)
vs. ) Case No. 97-2560
)
HELEN WILLIAMS, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a final hearing was conducted in this case in Miami, Florida, on December 4 and 5, 1997, before Judge Michael M. Parrish, an Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Luis M. Garcia, Esquire
Miami-Dade County School Board
1450 Northeast 2nd Avenue, Suite 400
Miami, Florida 33132
For Respondent: Jesse J. McCrary, Jr., Esquire2
McCrary & Mosley
2800 Biscayne Boulevard, Ninth Floor Miami, Florida 33137
STATEMENT OF THE ISSUES
This is a case in which the Petitioner seeks to terminate the employment of the Respondent, who is a continuing contract teacher, on several grounds alleged in a three-count Notice of Specific Charges. The Respondent is charged in Count I with incompetency; in Count II with gross insubordination and willful
neglect of duty; and in Count III with misconduct in office.
PRELIMINARY STATEMENT
On May 21, 1997, the School Board took action to suspend and initiate dismissal proceedings against Respondent. Respondent timely requested an evidentiary hearing, and on May 23, 1997, the case was forwarded to the Division of Administrative Hearings for assignment of an Administrative Law Judge. Petitioner's Notice of Specific Charges was filed July 23, 1997, and a copy was mailed to Respondent on the same date.
Prior to the final hearing, on December 3, 1997, Respondent's counsel was provided a copy of Petitioner's witness list, as well as with a list of exhibits which Petitioner intended to introduce into evidence at the final hearing. All of the exhibits introduced or relied upon by Petitioner were made available to Respondent's counsel on November 6, 1997, and were a part of Respondent's personnel file, to which both Respondent and her attorney had access.
The first day of the hearing was devoted to the presentation of evidence by Petitioner. At the beginning of the second day of the hearing Respondent requested an opportunity to advise the Judge of concerns she had regarding the fairness of the proceeding and the conduct of her counsel. She also requested that all evidence received the previous day be stricken from the record, and that any further evidence to be offered by Petitioner be stricken from the record. The requests were denied. As a result of Respondent's criticisms of his performance, counsel for
Respondent moved to withdraw from further representation of Respondent. Upon consideration of the motion, counsel for Respondent was required to continue to represent Respondent through the presentation of the Petitioner's case-in-chief, at which time the matter would be revisited. Thereupon Petitioner presented the testimony of its last three witnesses. Each of the witnesses was cross-examined by counsel for Respondent.
At the conclusion of the School Board's case, counsel for Respondent renewed his motion to withdraw from further representation of Respondent. Ruling on the renewed motion was reserved, and a status conference was scheduled for December 16, 1997. Following the status conference, an order was issued on December 17, 1997, which included the following:
In view of all of the foregoing, it is ORDERED:
That Jesse J. McCrary, Jr., Esquire, is hereby permitted to withdraw as counsel in this proceeding.
That by no later than January 15, 1998, the Respondent, Ms. Helen Williams, shall advise the undersigned in writing as to whether she has retained new legal counsel, or intends to proceed without legal counsel. If she has retained new legal counsel, the notice shall contain the name, address, and telephone number of the new legal counsel.
That by no later than January 15, 1998, the Respondent, Ms. Helen Williams, shall also advise the undersigned in writing as to whether she wishes to offer any additional evidence in this case, or whether the record of the hearing should be closed without receiving any additional evidence.
That rulings on the sufficiency of the evidence are reserved until the record of the hearing has been closed and the parties have been afforded an opportunity to file proposed
recommended orders.
On January 15, 1998, the Respondent filed a written statement, as required by the order of December 17, 1997. On January 20, 1998, a status conference was conducted. The matters discussed at the conference and the disposition of those matters were described as follows in an order issued on January 22, 1998.
Upon review of the Respondent's statement of January 15, 1998, the undersigned arranged for a telephonic status conference for the purposes of seeking clarification of the Respondent's position and of scheduling deadlines for future events in this proceeding.
The telephonic status conference was held on January 20, 1998. During the course of the status conference, the Respondent clarified that she did not wish to offer any additional evidence and that she wished to have the decision in this case based on the evidence that has already been presented.
The Respondent also noted that, if she disagrees with the disposition of this case, she will seek relief in the District Court of Appeal. The School Board did not have any objection to proceeding in that manner.
During the course of the status conference, the School Board attorney stated that the transcript of the hearing held on December 4 and 5, 1997, had not yet been ordered, but that it would be ordered promptly. The School Board attorney requested 20 days from the filing of the transcript within which to file proposed recommended orders. The parties were advised that the deadline for filing proposed recommended orders would be
20 days from the date of the filing of the transcript.
During the course of the status conference, the Respondent requested information about procedures before the Division of Administrative Hearings. Along with her copy of this order, the Respondent is being furnished with a copy of the rules adopted by the Division of Administrative Hearings, and
a copy of a pamphlet titled "Representing Yourself Before the Division of Administrative Hearings."
During the course of the status conference, the Respondent requested that she not be required to have telephone conversations with the School Board attorney. The School Board attorney was directed to communicate with the Respondent in writing to the extent possible, and to contact the undersigned prior to calling the Respondent.
Upon consideration of all of the foregoing and the record in this case, it is ORDERED;
That the record of the evidentiary hearing in this case is hereby closed, and the recommended order in this case will be prepared on the basis of the evidence presented at the hearing on December 4 and 5, 1997.
That, if he has not already done so, the School Board attorney shall immediately order the preparation of the transcript of the evidentiary hearing held on December 4 and 5, 1997, and shall arrange to have the transcript filed with the Division of Administrative Hearings as soon as it has been prepared.
That the parties to this case, who wish to do so, will be allowed 20 days from the date of the filing of the transcript within which to file their respective proposed recommended orders or similar written statements of position.
That to the extent it is practicable to do so, all future communications from the School Board attorney to the Respondent shall be in writing. If it should become necessary for the School Board attorney to have a conversation with the Respondent, the School Board attorney shall first advise the undersigned of such necessity.
The transcript of the hearing on December 4 and 5, 1997, was filed with the Division of Administrative Hearings on March 23, 1998. By memorandum dated March 24, 1998, Respondent and counsel for Petitioner were advised that the transcript had been filed, and that the deadline for filing proposed recommended orders would be April 13, 1998. On April 3, 1998, Petitioner filed a motion seeking a ten-day extension of the deadline. By order issued on April 6, 1998, the motion was granted and the deadline was extended to April 23, 1998, for all parties.
On April 13, 1998, the Respondent filed a document titled
Recommended Order, which has been treated as the Respondent's proposed recommended order. On April 13, 1998, the Respondent also filed a document objecting to the extension of the deadline for filing proposed recommended orders.
On April 23, 1998, the Petitioner filed a proposed recommended order containing extensive proposed findings of fact and conclusions of law.3
FINDINGS OF FACT
At all times material hereto, Petitioner was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to Section 4(b) of Article IX of the Constitution of the State of Florida, and Section 230.03, Florida Statutes.
At all times material hereto, Respondent was employed by Petitioner as a teacher-on-special-assignment and a Language Arts (English) teacher within the school district of Miami-Dade County, Florida, assigned to Miami Beach Senior High School, Lake Stevens Middle School, and other work sites within the school district of Miami-Dade County, Florida.
Respondent was employed by Petitioner pursuant to a continuing contract of employment and subject to the rules and regulations of the School Board.
During the 1992/93 school year Respondent exhibited erratic behavior, mood changes, engaged in altercations with
staff, was excessively absent, and chronically arrived late to the Chapter I Office, her assigned work site at that time.
On November 6, 1992, a meeting was held with Respondent to notify Respondent that, due to her excessive absenteeism, repeated tardiness, mood swings, and altercations with other staff members, Respondent was being referred to the School Board's Employee Assistance Program (hereinafter "EAP").
At the November 6, 1992 meeting, Respondent became verbally aggressive and combative in her demeanor and stated that, since there was nothing wrong with her, she did not need to go to the EAP.
On November 10, 1992, Respondent's then immediate supervisor requested a medical fitness evaluation due to, among other things, Respondent's excessive absenteeism, inability to accept directives, confrontations with staff members, lack of respect for authority, and because of Respondent's refusal to comply with the supervisory referral to EAP.
On November 17, 1992, Respondent was directed to report for a Conference-for-the-Record (hereinafter "CFR") at Petitioner's Office of Professional Standards (hereinafter "OPS").
On December 14, 1992, a CFR was held with Respondent to address Respondent's medical fitness to perform assigned duties, as well as her excessive tardiness, excessive absenteeism, and non-compliance with administrative directives.
At the December 14, 1992, CFR, it was decided that, because Respondent's duties at the Chapter I office were unclear, Respondent would be given a chance to return to her duties as a teacher-on-special-assignment at the Chapter I Office.
At the conclusion of the December 14, 1992, CFR, Respondent agreed to strive to maintain a professional work environment.
On January 19, 1993, Respondent's EAP case was closed after Respondent failed to appear at the scheduled EAP conference and after Respondent refused to participate in the program.
During the 1993/94 school year, Respondent was assigned to teach an English for Speakers of Other Languages ("ESOL") class at Miami Beach Senior High School.
During the first week of school in August of 1993, Respondent became involved in a verbal altercation in front of students after she was told that her classroom had been changed.
During the altercation described in paragraph 14 above, Respondent, in front of the students in the classroom, became so upset over being notified of the room change that she screamed and yelled at her Department chairperson and pushed 15 to 20 books off a table.
On September 1, 1994, several students in Respondent's ESOL class accused Respondent of directing disparaging statements to them, belittling them, and threatening to have her nephews harm them, if they reported her actions to the school principal.
On September 2, 1994, as a result of Respondent's persistent erratic behavior and inappropriate conduct, including, but not limited to, calling students "bastards," and demeaning, accosting, and harassing other teachers in the hallways, the principal at Miami Beach Senior High School requested that Respondent undergo a medical fitness evaluation.
On September 14, 1994, Respondent was involved in a verbal confrontation with another teacher at her school in the presence of students. Because of Respondent's agitated and irrational behavior, the other teacher was afraid that Respondent might hit her.
Due to Respondent's expressed desire to transfer to a middle school, and because of her continuing behavioral problems, Respondent was transferred to Lake Stevens Middle School with the assistance of the principal at Miami Beach Senior High.
Prior to Respondent's transfer to Lake Stevens Middle School, the principal at Lake Stevens Middle school was not informed of Respondent's history of behavioral problems until Respondent was involved in several incidents with other staff members at her new school.
On December 4, 1995, a conference was held with Respondent and the school clerk at Lake Stevens Middle School in an attempt to resolve a dispute between the two employees. The conference was held after Respondent had been involved in an altercation with the school clerk.
At the December 4, 1995, conference, Respondent was directed to avoid contact or communications with the school clerk unless initiated through a school administrator.
On May 4, 1995, during a parent-teacher conference, the conference had to be terminated after Respondent became enraged and started yelling and screaming at the parent, the student, and an assistant principal. Respondent continued screaming even after the parent and student had left and persisted in shouting and yelling at the assistant principal while Respondent followed her around the main office.
On February 8, 1996, another conference was held with the Respondent at Lake Stevens Middle School by the assistant principal to address a complaint filed by Respondent against a school secretary. As the conference was about to be concluded, Respondent started shouting and making disparaging remarks against the school secretary, and was generally "out-of-control."
On May 2, 1996, Respondent was cited with insubordination after she entered the main office area and started yelling at the assistant principal and refused to cease her tirade after twice being directed by the assistant principal to stop shouting and explain her problem.
On May 15, 1996, a formal observation of the Respondent's classroom performance was not conducted because Respondent was unable to provide her lesson plans and grade book to the administrator who was to observe her. Rather than place
Respondent on prescription, the principal decided to give Respondent another opportunity to get her documentation in order for another observation.
Prior to the May 15, 1996 voided observation, the assistant principal at Lake Stevens Middle School had noted that Respondent did not have her roll book, lesson plans, or student folders during the first thirty days after she had been transferred to Lake Stevens Middle School.
During the beginning of the summer school session, on July 8, 1996, Respondent again became involved in a verbal altercation with the school clerk at Lake Stevens Middle School. This second altercation with the school clerk commenced when the school clerk, who was now the principal's secretary, told the Respondent that the Respondent could not walk into the principal's office without first contacting the principal's secretary. When an assistant principal intervened to resolve this altercation, Respondent became irate and refused to leave the assistant principal's office and instead told him to "push" her out.
At the end of the school day on July 8, 1996, Respondent again became involved in an altercation with the principal's secretary after the Respondent purposefully pushed the secretary with her briefcase in the main office and thus provoked a verbal altercation, which required the intervention of school administrators.
After the school buses had left, on July 8, 1996, the interim principal at Lake Stevens Middle School met with the Respondent to discuss the physical confrontation that had occurred earlier that day and verbally reprimanded the Respondent, advising her that the school administration would not tolerate another incident of this nature.
As a result of the July 8, 1996, incident, a personnel investigation was conducted by the Division of School Police, which determined that the charge that Respondent had committed a battery was substantiated.
On August 28, 1996, a temporary restraining order was issued against Respondent after Respondent allegedly threatened to kill her former boyfriend, who is also employed on an hourly basis by Petitioner.
On October 7, 1996, a CFR was held with Respondent to address numerous incidents involving inappropriate and unprofessional conduct, the personnel investigation on the charge that Respondent had committed a battery, and Respondent's classroom performance and attendance. At that CFR, Respondent was directed to avoid any further altercations (verbal or physical) with other staff members. Respondent was also advised that her failure to comply with previous directives regarding altercations with staff members was considered insubordination and was in violation of School Board rules on employee conduct
and violence in the workplace. Respondent was also advised that any further incidents would be considered gross insubordination.
At the CFR held on October 7, 1996, Respondent was assigned to her home as an alternate assignment due to her repeated involvement in altercations at the school sites and her unprofessional conduct. Due to Respondent's continued involvement in altercations with other employees--even after being repeatedly directed to avoid same--and because of Respondent's history of erratic behavior at her work site, Respondent was further required to undergo a medical fitness evaluation.
On October 8 through 11, 1996, a psychological evaluation was conducted by Dr. Michael Hendrickson, Ph.D., a licensed psychologist. Dr. Hendrickson recommended that Respondent become involved in psychotherapy through the EAP, and that Respondent be required to undergo a neurological evaluation to rule out a neurological basis for Respondent's reported behavioral problems. He also recommended that Respondent be required to undergo psychotherapy once a week for a full year.
On October 15, 1996, Respondent was allowed to return to Lake Stevens Middle School. On October 22, 1996, Respondent was formally observed in the classroom and was found to be unacceptable in the categories of preparation and planning, and in assessment techniques in accordance with the Teacher
Assessment and Development System. Respondent was prescribed activities to assist her in overcoming her deficiencies.
On the day of the formal observation described immediately above, the administrator who conducted the classroom observation noted, among other things, that Respondent's lesson plans were incomplete; that Respondent's grade book did not contain grades for at least two of her classes; that there was no evidence of tests or quizzes given to the students; that students' work was piled on the teacher's desk, table, and cabinets; and that students' folders were incomplete.
By November 5, 1996, Respondent had yet to complete the prescriptive activities that had been assigned to her as a result of the formal classroom observation conducted on October 22, 1996.
At the and of the school day on December 12, 1996, Respondent approached the school principal, in the presence of students who were just getting into their school busses, and accused the principal of taking part in a plot to fire her and stated that she wanted to be assigned to the region office rather than work at Lake Stevens Middle School. The principal advised Respondent that this was not the appropriate place to hold such a discussion and that she should meet with him later in his office.
On December 12, 1996, upon entering the principal's office, Respondent began to cry, used profanity, started shouting and screaming at the school principal, refused to leave the
office, and, ultimately, had to be escorted out of principal's office into the main office, where Respondent continued to scream and shout in the presence of parents, students, and staff.
While in the main office area on December 12, 1996, Respondent had to be restrained by other staff members after she started directing her verbal attack--in a threatening manner--at a school counselor. Respondent was finally escorted out of the school.
On December 17, 1996, a follow-up CFR was held with Respondent to review the results of the psychological evaluation of Respondent and her continued inappropriate and unprofessional conduct as evidenced by her involvement in the December 12, 1996, incident in the main office of Lake Stevens Middle School, and her continuing acts of insubordination. At the December 17, 1996, follow-up CFR, Respondent was directed to attend psychotherapy once a week, for one (1) year, to undergo a neurological evaluation, and to immediately report to the EAP. Because of the school district's concern that Respondent had a propensity for violence, as evidenced by her numerous altercations with other employees, Respondent was also directed to remain on alternate assignment at her home.
On January 31, 1997, Respondent was notified that her failure to comply with the administrative directives issued at the follow-up CFR held on December 17, 1996, constituted gross insubordination. Respondent was again directed to comply with
the directives listed immediately above, within five (5) work days or face further disciplinary action.
On March 6, 1997, Respondent underwent a follow-up consultation with Dr. Hendrickson, the psychologist that had conducted the initial psychological evaluation. The follow-up consultation with Dr. Hendrickson was necessitated by Respondent's continued involvement in altercations with other employees at her work site after she had completed her psychological evaluation on October 11, 1996. After the follow- up consultation, Dr. Hendrickson recommended that Respondent be required to undergo a psychiatric evaluation to assess the cause of her various conflicts and aggressive outbursts.
On March 27, 1997, a CFR was held with Respondent to address Respondent's follow-up consultation with Dr. Hendrickson. At this CFR, Respondent was directed to undergo a psychiatric evaluation as a condition of Respondent's continued employment with Petitioner and to report the results of that evaluation within five (5) work days.
On or about April 29, 1997, Respondent was directed to report on May 1, 1997, to OPS for a CFR, to discuss, among other things, Respondent's failure to comply with administrative directives regarding her medical fitness to perform assigned duties, specifically Respondent's failure to undergo a psychiatric evaluation, and Respondent's failure to adhere to previously issued administrative directives relative to her
unprofessional conduct, and her unacceptable and disruptive behavior. On or about May 1, 1997, Respondent failed to attend the CFR scheduled for that day.
The May 1, 1997, CFR was rescheduled to May 2, 1997, after Respondent indicated that she would not attend unless escorted by a police officer because she feared for her personal safety.
On May 2, 1997, Respondent was notified that her failure to attend the CFR scheduled for that day would constitute gross insubordination.
Due to Respondent's failure to attend the May 2, 1997, CFR, on May 9, 1997, Respondent was directed to attend a CFR scheduled for May 13, 1997, at OPS. Respondent was also advised that her failure to attend the May 13, 1997, CFR would be considered gross insubordination and that Respondent would be subject to dismissal from further employment with Petitioner.
Respondent failed to attend the CFR scheduled for May 13, 1997.
At its regularly scheduled meeting of May 21, 1997, the School Board of Dade County, Florida, took action to suspend and initiate dismissal proceedings against Respondent on the grounds of incompetency, misconduct in office, gross insubordination or willful neglect of duty.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof pursuant to Section 120.57(1), Florida Statutes.
Section 231.001, Florida Statutes, provides the School Board with the authority to issue policies relating to personnel matters and states that:
Except as otherwise provided by law or the State Constitution, district school boards are authorized to prescribe rules governing personnel matters, including the assignment of duties and responsibilities for all district employees.
Section 231.36(4)(c),Florida Statutes, lists the grounds for dismissal of a member of a school district's instructional staff and provides in pertinent part that:
Any member . . . of the instructional staff. . . who is under continuing contract may be suspended or dismissed at any time during the school year; however, the charges against him must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude. . . .
Incompetency due to inefficiency is defined in relevant part in Rule 6B-4.009(1), Florida Administrative Code, as follows:
nability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity . . . Such judgment shall be based on the preponderance of evidence showing the existence of one (1) or more of the following.
(a) Inefficiency:
repeated failure to perform duties prescribed by law (Section 231.09, Florida Statutes);
repeated failure to communicate with and relate to children in the classroom, to such an extent that pupils are deprived of minimum educational experience. . . .
Incompetency due to incapacity is defined in relevant part in Rule 6B-4.009(2), Florida Administrative Code, as follows:
(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.
Rule 6B-4.009(4), Florida Administrative Code, defines gross insubordination or willful neglect of duties as follows:
(A) constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.
Rule 6B-4.009(3),Florida Administrative Code, defines misconduct in office as follows:
(A) violation of the code of Ethics of the education Profession . . . and the Principles of Professional Conduct for the education Profession of Florida . . . which is so serious as to impair the individual's effectiveness in the school system.
Rule 6B-1.001, Florida Administrative Code, provides in pertinent part:
The educator values the worth and dignity of every person . . . the educator's primary concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek
to exercise professional judgment and integrity . . . Aware of the importance of maintaining the respect of one's colleagues, and of students, parents, and of other members of the community, the educator tries to achieve and sustain the highest degree of ethical conduct.
Rule 6B-1.006(3), Florida Administrative Code, provides in pertinent part that the educator:
(a) Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety. . . .
* * *
(e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.
The School Board has adopted Rule 6Gx13-4A-1.21, which provides in pertinent part that:
I. 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 would reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited.
* * *
V. Instructional Personnel
Members of the instructional staff of the public schools, subject to the rules of the State and District Boards shall teach efficiently and faithfully, using books and materials required, following the prescribed courses of study, and employing
approved methods of instruction as provided by law and by the Rules of the State Department of Education.
School Board Rule 6Gx13-5B-1.04, the Pupil Progression Plan, provides that student grades are one of the primary means of communicating student progress and achievement.
63.. In addition, School Board Rule 6Gx13-4-1.08, prohibits employees from engaging in any form of violence in the work place, and provides in pertinent part:
Nothing is more important to Dade County Public Schools (DCPS) than the safety and security of its students and employees and promoting a violence-free work environment. Threats, threatening behavior, or acts of violence against students, employees, visitors, guests, or other individuals, by anyone on DCPS property will not be tolerated. Violations of this policy may lead to disciplinary action which includes, dismissal, arrest, and/or prosecution.
Petitioner alleged that Respondent violated
Rule 6B-4.009(l)(a)(1), Florida Administrative Code, due to Respondent's inadequate lesson plans, improper grading, and unacceptable classroom performance. Respondent's un-remediated classroom performance led to her ineffectiveness as a teacher and to her inability to efficiently fulfill the duties and skills required of a teaching professional pursuant to Section 231.09, Florida Statutes.4
Respondent's inefficiency was exemplified by her failure to maintain appropriate student folders and grade books,
to submit weekly lesson plans, to properly grade students work, and to timely complete her assigned prescriptive activities.
Respondent is also guilty of gross insubordination and willful neglect of duty in contravention of Rule 6B-4.009(4), Florida Administrative Code, due to her repeated, constant, and continuing refusal to obey direct orders, reasonable in nature, given by and with proper authority. To substantiate a charge of gross insubordination or willful neglect of duty, a teacher's conduct must be more than an isolated incident of non-compliance with an order or directive. Rather, the conduct must be occasioned on a constant or continuing basis. Smith v. School Board of Leon County, 405 So. 2d 183, 185 (Fla. lst DCA 1981).
The evidence in this case demonstrates that Respondent refused to comply with repeated directives that she avoid confrontations with other staff members and that she conduct herself in a professional manner. Respondent's conduct rises to the level of a repeated and contumacious disregard for administrative directives and constitutes gross insubordination and willful neglect of duty.
Moreover, Respondent's refusal to comply with the directive that she undergo a psychiatric evaluation as well as her repeated and continuing refusal to attend the May 2 and
May 13, 1997, CFRs constitutes gross insubordination and willful neglect of duty, and comprises sufficient grounds for dismissal of a teacher under a continuing contract pursuant to
Section 231.36(4)(c), Florida Statutes, and Article XXI of the Contract between the Dade County Public Schools and the United Teachers of Dade (hereinafter "UTD labor contract").
Respondent's use of disparaging remarks and threats towards her students, and her chronic involvement in altercations with other staff members in the presence of students, constitute violations of Rules 6B-1.001(2) and (3), and 6B-1.006(3)(e), Florida Administrative Code, which are so serious as to impair Respondent's effectiveness as a school teacher in the school system, and, therefore, amount to misconduct in office as that term is defined in Rule 6B-4.009(3), Florida Administrative Code.
Such actions by Respondent constitute sufficient grounds and comprise just cause to warrant dismissal of Respondent pursuant to Section 231.36(4)(c),Florida Statutes, and Article XXI of the UTD labor contract.
In addition, Respondent failed to conduct herself in a manner that reflected credit upon herself and the school system. Respondent's conduct, including Respondent's defiance of her supervisors' authority, and her involvement in several altercations with other staff members, does not comport with School Board Rule 6Gx13-4A-1.21.
Respondent's repeated involvement in verbal and physical altercations with other staff members and employees as indicated herein violates School Board rules, including but not
limited to School Board Rules 6Gx13-4-1.21 (Responsibilities and Duties), and 6Gx13-4-1.08 (Violence in the Workplace).
Respondent's violation of School Board rules constitutes just cause, is a violation of Section 231.09, Florida Statutes, and is a sufficient basis to warrant dismissal of a UTD contract employee, pursuant to Section 230.23(5)(f), Florida Statutes, and Article XI of the UTD labor contract.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that a final order be entered by the School Board of Miami-Dade County, Florida ordering that:
Respondent be found to be guilty of incompetency, gross insubordination or willful neglect of duty, and misconduct in office, as charged in the Notice of Specific Charges;
Respondent's suspension without pay from employment on May 21, 1997, be sustained and that she receive no back pay for the period of her suspension; and that
Respondent be dismissed from all employment with the School Board of Miami-Dade County, Florida.
DONE AND ENTERED this 2nd day of July, 1998, in Tallahassee, Leon County, Florida.
MICHAEL M. PARRISH
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847
Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 1998.
ENDNOTES
1/ When this case was filed, the Petitioner was known as the School Board of Dade County. By vote of the electorate, the name
of the county has been changed from "Dade" to "Miami-Dade". Accordingly, the Petitioner's name has changed.
2/ Mr. McCrary represented the Respondent at the final hearing on December 4 and 5, 1997. As noted in greater detail in the Preliminary Statement, Mr. McCrary was allowed to withdraw as counsel shortly after the hearing.
3/ The Petitioner's proposed recommended order was well-prepared and, on the whole, provides an accurate and fair presentation of the factual and legal issues in this case. Extensive portions of the proposed findings and proposed conclusions submitted by the Petitioner have been incorporated into this Recommended Order.
The Respondent's proposed recommended order contained very little in the way of proposed findings of fact based on the evidence received at the hearing. Rather, the Respondent's proposal is comprised primarily of arguments and opinions. The Respondent's arguments and opinions have been carefully considered. Those arguments and opinions are an insufficient basis upon which to reach the disposition sought by the Respondent.
4/ Section 231.09, Florida Statutes, provides that:
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.
COPIES FURNISHED:
Luis M. Garcia, Esquire Dade County School Board
1450 Northeast 2nd Avenue, Suite 400
Miami, Florida 33132
Ms. Helen Williams
900 Northwest 179th Street Miami, Florida 33169
Jesse J. McCrary, Jr., Esquire McCrary & Mosley
2800 Biscayne Boulevard, Ninth Floor Miami, Florida 33137
Frank T. Brogan Commissioner of Education The Capitol, Plaza Level 08
Tallahassee, Florida 32399-0400
Roger Cuevas, Superintendent Miami-Dade School Board
1450 Northeast 2nd Avenue, Suite 400
Miami, Florida 33132
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within 15 days from the date of 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 |
|---|---|
| Sep. 14, 1998 | Final Order of the School Board of Miami-Dade County, Florida filed. |
| Jul. 02, 1998 | Recommended Order sent out. CASE CLOSED. Hearing held 12/4-5/98. |
| Apr. 23, 1998 | Petitioner, School Board of Miami-Dade County, Florida`s Proposed Recommended Order (filed via facsimile). |
| Apr. 13, 1998 | (Respondent) Recommended Order filed. |
| Apr. 13, 1998 | Response/Inquiry: Petitioner`s Motion for An Enlargement if time to file its Proposed Recommended Order filed. |
| Apr. 06, 1998 | Order Extending Time sent out. (PRO`s due by 4/23/98) |
| Apr. 03, 1998 | Petitioner`s Motion for an Enlargement of Time to File Its Proposed Recommended Order (filed via facsimile). |
| Mar. 24, 1998 | Memorandum to Parties of Record from Judge Parrish (Re: PRO`s due by 4/13/98) sent out. |
| Mar. 23, 1998 | Transcripts (Volumes I, II, III, IV, tagged) filed. |
| Mar. 09, 1998 | Letter to L. Garcia & cc: H. Williams from Judge Parrish (re: filing of transcript) sent out. |
| Jan. 22, 1998 | Order sent out. (post-hearing guidelines) |
| Jan. 15, 1998 | Letter to Judge M. Parrish from H. Williams (re: mandated responses) (filed via facsimile). |
| Dec. 17, 1997 | Order sent out. (J. McCrary, Jr. Granted Leave to Withdraw as Counsel; Respondent to Provide Additional Case Information by 1/15/98) |
| Dec. 08, 1997 | Petitioner`s Witness List filed. |
| Dec. 04, 1997 | Hearing Partially Held, continued to date not certain. |
| Dec. 04, 1997 | (Respondent) Response to Request for Production; Notice of Response to Petitioner`s First Set of Interrogatories filed. |
| Dec. 03, 1997 | Petitioner`s Response to Respondent`s Request for Production filed. |
| Nov. 26, 1997 | (Petitioner) Motion to Compel; Petitioner`s First Set of Interrogatories to Respondent (filed via facsimile). |
| Nov. 17, 1997 | (Petitioner) Notice of Taking Deposition Duces Tecum; Re-Notice of Taking Deposition Duces Tecum (Change of Location Only) filed. |
| Nov. 13, 1997 | Notice of Deposition, Notice of Taking Deposition Duces Tecum filed. |
| Nov. 07, 1997 | (Respondent) Request to Produce filed. |
| Oct. 16, 1997 | (Petitioner) Request for Production; Petitioner`s First Set of Interrogatories to Respondent filed. |
| Aug. 29, 1997 | Order sent out. (Motion to Dismiss is denied) |
| Aug. 29, 1997 | Order Granting Continuance and Rescheduling Hearing sent out. (hearing set for Dec. 4-5, 1997; 8:45am; Miami) |
| Aug. 28, 1997 | (Respondent) Motion for Continuance filed. |
| Jul. 24, 1997 | Petitioner`s Memorandum of Law in Opposition to Respondent`s Motion to Dismiss (filed via facsimile). |
| Jul. 23, 1997 | (Petitioner) Notice of Specific Charges (filed via facsimile). |
| Jul. 17, 1997 | (Respondent) Motion to Dismiss filed. |
| Jun. 16, 1997 | Notice of Hearing sent out. (hearing set for Oct. 16-17, 1997; 8:45am; Miami) |
| Jun. 11, 1997 | (Petitioner) Response to Initial Order (filed via facsimile). |
| Jun. 03, 1997 | Initial Order issued. |
| May 27, 1997 | Agency referral letter; Request for Hearing, letter form; Agency Action Letter filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 10, 1998 | Agency Final Order | |
| Jul. 02, 1998 | Recommended Order | Evidence established that school teacher should be dismissed for incompetence, gross insubordination, and misconduct in office. |
