STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE SCHOOL BOARD OF ) MIAMI-DADE COUNTY, FLORIDA, )

)

Petitioner, )

)

vs. ) Case No. 99-2309

)

CHRISTOPHER A. PAULK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on December 15 and 16, 1999, in Miami, Florida, before Patricia Hart Malono, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Twila Hargrove Payne, Esquire

School Board of Miami-Dade County, Florida School Board Administrative Building

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Christopher A. Paulk, pro se

3442 Southwest 37th Avenue Miami, Florida 33133

STATEMENT OF THE ISSUE

Whether the Respondent committed the violations set forth in the Notice of Specific Charges dated August 13, 1999, and, if so, the penalty which should be imposed.

PRELIMINARY STATEMENT

In a letter dated May 13, 1999, the School Board of Miami- Dade County ("School Board") notified Christopher A. Paulk that it had taken action at its May 12, 1999, meeting to suspend him from his employment with the Miami-Dade County Public Schools and to initiate action to dismiss him from such employment.

Mr. Paulk timely requested a formal hearing, and the School Board forwarded this matter to the Division of Administrative Hearings for assignment of an administrative law judge.

In a Notice of Specific Charges filed August 13, 1999, the School Board alleged that, on several occasions, Mr. Paulk used excessive physical force in subduing students at the Ruth Owens Krusé Educational Center ("Krusé Center") and, thereby, violated School Board Rule 6Gx13-4A-1.21 by engaging in conduct unbecoming a School Board employee (Count I); violated School Board Rules 6Gx13-4A-1.21, 6Gx13-5D-1.07, and 6Gx13-4-1.08,

which violations provide grounds for dismissal from employment (Count II); violated Rule 6B-4.009(4), Florida Administrative Code, by committing gross insubordination and willful neglect of duty (Count III); violated Rule 6B-1.001(2) and (3), Florida Administrative Code, and Rule 6B-1.006(3)(a) and (e), Florida Administrative Code, by committing misconduct in office (Count IV); and violated Rule 6B-4.009(2), Florida Administrative Code,

by engaging in conduct inconsistent with public conscience and good morals (Count V).

At the hearing, the School Board presented the testimony of the following witnesses: Will Gordillo, Principal of the Krusé Center; Isaac Rodriguez, Executive Director of the School Board's Office of Professional Standards; Daniel Jones, former principal of the Krusé Center; Sargeant. Dermot Horgan, an employee of the Miami-Dade County Division of School Police; Detective Troy Wilkins, an employee of the Miami-Dade County Division of School Police; Antonio Herrera, an employee at the Krusé Center; T. Greer, an employee at the Krusé Center; A.G., a former student at the Krusé Center; O.A., a student at the Krusé Center; G.S., a student at the Krusé Center; K.L., a former student at the Krusé Center; and L.L., a former student at the Krusé Center. Petitioner’s Exhibits 1 through 26 were offered and received into evidence. The Respondent testified in his own behalf, and Respondent's Exhibits 1 and 2 were offered and received into evidence. Official recognition was taken of School Board Rules 6Gx13-4A-1.21, 6Gx13-5D-1.07, and 6Gx13-4-

1.08, and of Article VII of the Contract between the Dade County Public Schools and the United Teachers of Dade.

A three-volume transcript of the final hearing was filed with the Division of Administrative Hearings, the Petitioner timely filed its proposed findings of fact and conclusions of

law, and the Respondent timely filed correspondence containing his proposed findings of fact and conclusions of law.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. The Miami-Dade County School Board is 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 Article IX, Section 4(b), Florida Constitution, and Section 230.03, Florida Statutes.

2. At all times material hereto, Mr. Paulk was employed by the School Board as a school security monitor. School security monitors are classified as educational support personnel in Section 231.3605(1), Florida Statutes.

3. Mr. Paulk is a member of the United Teachers of Dade ("UTD") and is bound by the provisions of the Contract between the Dade County Public Schools and the United Teachers of Dade ("UTD Contract"), effective July 1, 1997, through June 30, 2000.

4. Mr. Paulk was initially employed by the School Board in June 1993 as a part-time school security monitor and was assigned to the Krusé Center. The Krusé Center is a middle school serving only severely emotionally disturbed and

   emotionally handicapped students. In January 1994, Mr. Paulk was hired as a full-time school security monitor, and he was assigned to work at the Krusé Center. Except for a brief hiatus in early 1998, Mr. Paulk worked at the Krusé Center until November 1998, when he was assigned to the Florida Diagnostic Learning Resource System as an alternate assignment. Mr. Paulk was suspended as an employee of the School Board on May 13, 1999.

5. The responsibilities of a school security monitor include helping the school staff maintain a safe learning environment for the students, reporting serious disturbances to the school administration, and resolving minor altercations.

6. Because of the nature of their exceptionalities, the students attending the Krusé Center can sometimes be difficult to handle, and their behavior is sometimes disruptive and/or out-of-control. Many of the exceptional education students at the Krusé Center have included in their Individual Educational Plans a provision allowing the use of certain techniques to physically restrain the student if his or her behavior is out- of-control.

7. All personnel at the Krusé Center, including security monitors, are required to use non-physical intervention techniques to control a student whose behavior is disruptive and/or out-of-control. If a student's disruptive or out-of-

   control behavior cannot be controlled by non-physical intervention techniques, physical intervention techniques known as Safe Physical Management ("SPM") techniques may be used to restrain the student until he or she is calm. Only SPM techniques, which are approved by the School Board, may be used to physically restrain students when the use of physical restraint is necessary. There are three primary SPM techniques: the extended arm assist; upper torso control; and supine/prone restraint. It is never appropriate to use SPM techniques in response to a student’s general misbehavior or defiance.

8. Procedures regarding the use of physical force against exceptional education students are set forth in Article VIII, Section 3 of the UTD Contract, which provides in pertinent part:

   H. 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 the implementation of specific physical restraint procedures to be used in Exceptional Student Education programs when a student's IEP documents the potential need for their use. These procedures include, but are [sic] limited to, holding and escape techniques which, when implemented, prevent injury to students and staff or prevent serious damage to property.

   
   

9. According to School Board procedures and the UTD Contract, a school security monitor who has physically restrained a student must complete three student case management

   forms: the Parent Notification, Physical Restraint Procedures Form; the Student Case Management Student Services Form; and the Student Case Management Referral Form.

10. All staff at the Krusé Center, including Mr. Paulk, received formal training in the use of SPM techniques at the school-district level. In addition, in September 1996, Daniel Jones, the principal of the Krusé Center at the time, distributed a memorandum to the staff at the Krusé Center, including Mr. Paulk, which contained a brief review of the purpose of physical restraint, the circumstances in which it could be used, and the authorization to use only the School

    Board-approved SPM techniques. In addition, Mr. Jones reviewed the paperwork that must be completed when SPM techniques were used to restrain a student.

11. Will Gordillo, who became the principal of the Krusé Center at the beginning of the 1997-98 school year, prepared a handbook for security monitors working at the Krusé Center, which included the school's internal policies and procedures for safely dealing with the exceptional education students who attended the Krusé Center. The handbook was given to all security monitors at the school, and the contents of the handbook were reviewed with the security monitors. Mr. Paulk received a copy of the handbook, and its contents were reviewed with him.

12. The first preliminary personnel investigation into Mr. Paulk's use of physical force against a student was conducted in 1996, when Mr. Paulk was accused on grabbing a student by the shirt and breaking the student's necklace. The charges against Mr. Paulk were found to be unsubstantiated, and Mr. Jones, then the principal of the Krusé Center, reviewed the investigative report with Mr. Paulk during a meeting held on June 5, 1996. According to the Site Disposition of Investigative Report prepared by Mr. Jones, he and Mr. Paulk

    reviewed and discussed the School Board's guidelines for the use of safe physical management.

    April 17, 1997, incident

    
    

13. On April 17, 1997, an incident occurred at the Krusé Center involving Mr. Paulk and a student named A.G., who was

    13 years old at the time. A.G.'s school bus was late, and he was waiting outside the school building. A security monitor named T. Grier was supervising students in the area where A.G. was waiting for the school bus. Although there was some disagreement in the testimony of Mr. Grier and A.G. relating to the events leading up to the incident1, it is uncontroverted that Mr. Grier told A.G. not to do something, that A.G. ignored his instruction, and that Mr. Paulk approached A.G. and asked him if he had heard Mr. Grier's instructions. When A.G. did not respond, Mr. Paulk then either "tackled" A.G. or hit A.G. in the

    head and neck with his forearm and elbow. Because A.G. was standing near the school building wall, the blow caused his head to hit the wall with enough force as to raise a lump on the left side of his head. A.G. was not exhibiting any aggressive behavior at the time of the incident.

14. A.G. was very upset, and he went to the principal's office. A.G. wanted to call his mother, but Mr. Jones, the principal, tried to calm him and find out what had happened before allowing A.G. to call his mother. A.G. did not calm down, and he left the school grounds by himself without having called his mother. Later that afternoon, A.G. and his mother returned to the Krusé Center and reported the incident to

    Mr. Jones. Mr. Jones referred the matter to the Division of School Police for a preliminary personnel investigation.

15. The investigator who conducted the preliminary personnel investigation concluded that the charge of battery against A.G. was substantiated. A Conference-for-the-Record was conducted by Mr. Jones on June 12, 1997, in which the incident involving A.G. was discussed with Mr. Paulk. Stella Menendez, the assistant principal at the Krusé Center, also attended the conference; Mr. Paulk waived the right to have a union representative present. Mr. Jones prepared a Summary of the Conference-for-the-Record dated June 12, 1997.

16. According to the summary, Mr. Paulk was provided a copy of the investigative report, which was discussed during the conference. Mr. Jones reviewed with Mr. Paulk the appropriate use of physical force with students at the Krusé Center, both as set forth in the UTD Contract and as approved by the School Board. Mr. Paulk was directed to refrain from the use of inappropriate physical force, which is considered corporal punishment under the School Board's rules; to use only SPM techniques; and to use SPM techniques only when the use of physical restraint was necessary to prevent a student from harming himself or others or from damaging property. Mr. Paulk indicated that he did not "really" need any additional training in SPM techniques. Finally, Mr. Paulk was advised by Mr. Jones that a second substantiated report involving the inappropriate use of physical force on a student would result in further disciplinary action, including possible termination of his employment. Mr. Jones provided Mr. Paulk with copies of the documents discussed during the conference concerning the use of SPM techniques and of the School Board's rule prohibiting corporal punishment.

    December 18, 1997, incident

    
    

17. On December 18, 1997, an incident occurred at the Krusé Center involving Mr. Paulk and a student named O.A., who was 12 years old at the time. The incident occurred in the

    school cafeteria, during the lunch hour. Mr. Paulk was supervising the students waiting in the lunch line, and he was standing at the door to the cafeteria with his arm across the door to keep the students congregating outside the cafeteria from entering until the lunch line was clear. O.A. was the first student standing in line waiting to be admitted into the cafeteria, and he pushed past Mr. Paulk without waiting for permission. Mr. Paulk confronted O.A., who made a defiant remark to Mr. Paulk and continued walking into the cafeteria.

18. Mr. Paulk followed O.A. into the cafeteria, and he and

    
    

    O.A. exchanged words; O.A.'s behavior continued to be defiant.

    
    

    Mr. Paulk then grabbed O.A. from behind and pushed him facedown over a refrigerated case containing cartons of milk. O.A. put out his arms to brace himself and prevent his face from hitting the top of the refrigerated case. When O.A. pushed himself upright, Mr. Paulk grabbed O.A.'s shirt collar from the front, pushed O.A. against the wall of the cafeteria, and held O.A. there by placing his arm across O.A.'s chest. When Mr. Paulk pushed him against the wall, O.A. began yelling and cursing

    Mr. Paulk. Antonio Herrera, a paraprofessional at the Krusé Center who was in another part of the cafeteria when the incident began, heard the commotion and went to see what was happening. Mr. Herrera saw Mr. Paulk holding O.A. against the wall with his arm across O.A.'s chest, and Mr. Herrera

    intervened and escorted O.A. to a table in the cafeteria. During the incident, O.A.'s gold neck chain was broken.

19. Mr. Paulk did not report this incident to the school administration, and he did not complete the paperwork required when physical intervention is used. The incident was reported by O.A.'s mother, who was very upset when she learned about the incident from her son. O.A.'s mother refused to allow her son to attend school after the incident as long as Mr. Paulk remained in his position as a security monitor.

20. Mr. Gordillo, the principal of the Krusé Center at the time, referred the matter to the Division of School Police for a preliminary personnel investigation, and, on January 13, 1998, Mr. Gordillo held a Conference-for-the-Record to discuss the incident. The conference was attended by Mr. Gordillo,

    Mr. Paulk, and Benny Pollack, a UTD representative.

    
    

    Mr. Gordillo prepared a Summary of Conference-for-the-Record dated January 16, 1998. According to the summary, Mr. Paulk was advised that he would remain in his assignment as a security monitor at the Krusé Center but that he would be assigned to work at the Florida Diagnostic Learning Resource System pending the outcome of the preliminary personnel investigation.

    Mr. Gordillo directed Mr. Paulk to refrain from the use of all physical restraint with the students, including SPM techniques, and he reviewed with Mr. Paulk the cautions about the use of

    inappropriate physical force conveyed to him during the Conference-for-the-Record held on June 12, 1997, with respect to the substantiated charges of battery against A.G. Mr. Gordillo also notified Mr. Paulk that he would be subject to additional disciplinary action, and possibly termination from his employment with the School Board, if the charges against him were substantiated as a result of the preliminary personnel investigation.

21. The investigator who conducted the preliminary personnel investigation concluded that the charge of battery against O.A. was substantiated. A Conference-for-the-Record was held on June 19, 1998, to review the results of the investigation. The conference was attended by Mr. Gordillo; Stella Menendez, the assistant principal of the Krusé Center; Mr. Paulk; and Lourdes Blanco-Lopez, the UTD lead steward.

    Mr. Gordillo prepared a Summary of the Conference-of-the-Record dated July 9, 1998. According to the summary, Mr. Gordillo reviewed the Summary of the Conference-for-the-Record held on June 12, 1997. Mr. Gordillo went over the report of the preliminary personnel investigation in which the charges of battery against O.A. were found to be substantiated, and

    Mr. Gordillo discussed with Mr. Paulk the difference between the appropriate and the inappropriate use of physical force.

    Mr. Gordillo discussed with Mr. Paulk the provision of the UTD

    Contract dealing with the use of physical restraint to prevent students from inflicting injury on themselves or others or from causing serious damage to property, the provision of the UTD Contract requiring the documentation of the use of physical restraint, the School Board rule prohibiting corporal punishment, and the contents of a brochure on the use of reasonable force.

22. The July 9, 1998, Summary of the Conference-of-the-

    
    

    Record further reflects that Mr. Gordillo directed Mr. Paulk

    
    

    to refrain from using physical force with students except in those cases which require the use of safe physical management techniques . . . [,] to make sure you record all incidents in which you use any physical force and/or physical restraint techniques in a SCM [Student Case Management] form and turn it in to an administrator immediately after the said incident . . . [,] [and] to attend the next scheduled Safe Physical Management Workshop during the 1998-98 [sic] school year as a refresher. Failure to comply with the aforementioned directives will be considered gross insubordination.

    Any further acts of non-compliance with school board policies and procedures will also lead to disciplinary actions which may include dismissal.

    
    

    Mr. Paulk was advised that a letter of reprimand would be issued following the conference.

23. A memorandum dated July 10, 1998, and entitled "Reprimand" was directed to Mr. Paulk in which Mr. Gordillo officially reprimanded Mr. Paulk for his actions with respect to

    the incident involving O.A. Mr. Paulk was further advised in the Reprimand:

    [Y]ou are directed to refrain from using inappropriate procedures and actions during the course of your employment day.

    
    

    Any recurrence of the above infraction [the December 18, 1997, incident] will be considered gross insubordination and may lead to further disciplinary action.

    
    

    October 23, 1998, incident

    
    

24. On October 23, 1998, an incident occurred at the Krusé Center involving Mr. Paulk and a student named M.L., who was

    12 years old at the time. The incident occurred in the morning, before school started. Mr. Paulk was in the school cafeteria, supervising students who had arrived at the school early. M.L. and another student were in the cafeteria, "play" wrestling and generally engaging in horseplay. Mr. Paulk told them to stop, and, when they did not do so, he grabbed M.L. by the back waistband of his pants, pulled him off the other student, and threw him between two cafeteria tables. M.L. got up from the floor and left the cafeteria. He returned to the cafeteria after a short time, and attended his classes. Later in the day,

    M.L. showed a fellow student abrasions on the right side of his body, near his waist, which he attributed to Mr. Paulk's use of physical force in the cafeteria that morning.

25. Mr. Gordillo learned of the incident later on the day of October 23, 1998. He began gathering information regarding the incident, and, on Monday, October 26, 1998, the student and his parent came to Mr. Gordillo's office. M.L. showed

    Mr. Gordillo the abrasions near his waist on the right side of his body, and Mr. Gordillo took photos of the injuries.

    Mr. Gordillo then referred the matter to the Division of School Police for a preliminary personnel investigation, and, on October 28, 1998, Mr. Gordillo returned Mr. Paulk to the alternate work assignment at the Florida Diagnostic Learning Resource System.

26. The investigator who conducted the preliminary personnel investigation concluded that the charge of battery against M.L. was substantiated as a result of the investigation. In a memorandum dated February 11, 1999, Mr. Paulk was notified that a Conference-for-the-Record would be held at the Office of Professional Standards on February 23, 1999. The stated purpose of the conference was to address the preliminary personnel investigation report which found that the charge of battery against student M.L. had been substantiated; Mr. Paulk's failure to follow administrative directives; Mr. Paulk's violation of the School Board rule prohibiting corporal punishment;

    Mr. Paulk's job performance to date; and Mr. Paulk's future employment status with the School Board.

27. The conference was held on February 23, 1999, and was attended by Isaac J. Rodriguez, an executive director of the School Board's Office of Professional Standards; Mr. Gordillo; Mr. Paulk; and Dia Falco, a UTD Bargaining Agent Representative. Mr. Rodriguez prepared a Summary of Conference-for-the-Record dated March 18, 1999. According to the summary, the report of the preliminary personnel investigation that substantiated the charges of battery against M.L. was reviewed. Mr. Paulk's employment history with the School Board was reviewed, including the June 5, 1996, memorandum regarding the unsubstantiated charge of battery in 1996; the reports of the preliminary personnel investigations of the substantiated charges of battery against A.G. and O.A.; and the summaries of the Conferences-for- the-Record held on June 12, 1997 and June 19, 1998, to discuss these charges. Mr. Paulk was advised that his continued use of excessive force was of serious concern and that disciplinary action would be taken after the matter was reviewed by the Senior Executive Director of the Office of Professional Standards, the District Director of the Office of Exceptional Student Education and Psychological Services, Mr. Gordillo, and the School Board's attorneys. Finally, Mr. Paulk was given three directives: perform all duties as assigned; comply with all administrative directives; and refrain from using physical means to effect discipline.

28. In a memorandum dated March 4, 1999, Mr. Gordillo transmitted to Roger K. Felton, District Director of the Office of Exceptional Student Education and Psychological Services, his recommendation that Mr. Paulk be dismissed from employment with the School Board. In a memorandum dated March 30, 1999,

    Mr. Felton transmitted to Joyce Annunziata, Senior Executive Director of the Office of Professional Standards, his concurrence in Mr. Gordillo's recommendation that Mr. Paulk be dismissed from employment. In a letter to Mr. Paulk dated April 28, 1999, Roger C. Cuevas, Superintendent of Schools, notified Mr. Paulk that he was recommending to the School Board

    that Mr. Paulk be suspended from employment and that proceedings for his dismissal be initiated. The School Board followed the Superintendent's recommendation at its meeting on May 12, 1999, and a letter dated May 13, 1999, was sent to Mr. Paulk notifying him of this action.

    Summary

    
    

29. The evidence presented by the School Board is sufficient to establish with the requisite degree of certainty that Mr. Paulk's use of physical force against A.G., O.A., and

    M.L. was unseemly and does not reflect credit on either Mr. Paulk or the school system.

30. The evidence presented by the School Board is sufficient to establish with the requisite degree of certainty

    that Mr. Paulk's use of physical force against A.G., O.A., and

    
    

    M.L. was inappropriate. The behavior exhibited by these three students did not warrant the use of physical force because the behavior was not disruptive or out-of-control behavior that posed a danger of harm to themselves or others or threatened the destruction of property. Even had the use of physical force been warranted, Mr. Paulk used excessive physical force and did not use authorized SPM techniques. In addition, the evidence presented by the School Board is sufficient to establish with the requisite degree of certainty that Mr. Paulk used physical force against these three students as punishment for their failure to follow his instructions rather than as a means of restricting their movements to de-escalate aggressive behavior.

31. The evidence presented by the School Board is sufficient to establish with the requisite degree of certainty that Mr. Paulk failed to follow the directives he received in June 1996, in June 1997, and in June 1998 to use physical force with students only when the use of physical force was warranted and to use only SPM techniques when physically restraining students.

32. The evidence presented by the School Board is sufficient to establish with the requisite degree of certainty that Mr. Paulk's use of physical force against A.G., O.A., and

    M.L. was excessive and caused physical injuries to both A.G. and

    M.L., although the injuries were not serious, and broke O.A.'s necklace. This use of physical force by Mr. Paulk against A.G., O.A., and M.L. not only reflects a lack of professional judgment on Mr. Paulk's part but also is inconsistent with Mr. Paulk's responsibility as a school security monitor to provide a safe learning environment for the students at the Krusé Center.

33. The evidence presented by the School Board is sufficient to establish with the requisite degree of certainty that Mr. Paulk's conduct with respect to A.G., O.A., and M.L. was inconsistent with the standards of public conscience because Mr. Paulk used physical force against three children, aged 12 and 13, who were either seriously emotionally disturbed or emotionally handicapped, in circumstances in which the use of physical force was not warranted. However, the evidence presented by the School Board is not sufficient to establish with the requisite degree of certainty that Mr. Paulk's conduct was notorious or brought public disgrace or disrespect to the education profession.

34. The evidence presented by the School Board is sufficient to establish with the requisite degree of certainty that just cause exists to terminate Mr. Paulk's employment.

    CONCLUSIONS OF LAW

    
    

35. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of

    the parties thereto pursuant to Sections 120.569 and .57(1), Florida Statutes (1997).

36. Because the School Board seeks to dismiss Mr. Paulk from his employment, the School Board has the burden of proving the allegations against Mr. Paulk by a preponderance of the evidence. Allen v. School Board of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA 1990).

37. Section 230.23(5), Florida Statutes (1997), provides that a school board has the power to suspend and dismiss employees as follows:

    (f) Suspension and dismissal and return to annual status.--Suspend, dismiss, or return to annual contract members of the instructional staff and other school employees; however, no administrative assistant, supervisor, principal, teacher, or other member of the instructional staff may be discharged, removed or returned to annual contract except as provided in chapter 231.

    
    

38. Section 231.3605, Florida Statutes (1997), deals with the employment status of educational support employees, and it provides in pertinent part:

    1. As used in this section:

       1. "Educational support employee" means 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.

          
          

          * * *

          
          

          (2)(a) Each educational support employee shall be employed on probationary status for a period to be determined through the appropriate collective bargaining agreement or by school board rule in cases where a collective bargaining agreement does not exist.

       2. Upon successful completion of the probationary period by the employee, the employee's status shall continue from year to year, unless the superintendent terminates the employee for reasons stated in the collective bargaining agreement, or in school board rule in cases where a collective bargaining agreement does not exist, or reduces the number of employees on a districtwide basis for financial reasons.

       
       

39. The UTD Contract defines the terms and conditions of employment for individuals employed as school security monitors by the School Board, to the extent that such terms and conditions are not defined by statute. Article XXI, Section 3 of the UTD Contract sets forth procedures for the continued employment of educational support personnel, and provides as follows:

    D. Upon successful completion of the probationary period, the employees' employment status shall continue from year to year, unless . . . the employee is terminated for just cause. Just cause 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 turpitude. Such charges are defined, as applicable, in State Board

    Rule 6B-4.009.

    
    

    Article VIII, Section 3 of the UTD Contract provides in pertinent part:

    G. Physical restraint techniques provided in training programs approved by the Board are authorized and, when utilized in accordance with the training provided and these guidelines shall not constitute grounds for disciplinary action. . . .

    
    

    Based on the findings of fact herein, the physical force used by Mr. Paulk against A.G., O.A., and M.L. was not appropriate under the circumstances and did not involve the use of School Board- approved SPM techniques.

40. In Count I of the Notice of Specific Charges, the School Board has charged Mr. Paulk with violating School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties, by engaging in

    conduct unbecoming a School Board employee. Rule 6Gx13-4A-1.21 provides in pertinent part:

    1. Employee conduct

    
    

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

    Unseemly conduct or the use of abusive language in the workplace is expressly prohibited.

    
    

    Based on the findings of fact herein, the School Board has proven by a preponderance of the evidence that Mr. Paulk violated School Board Rule 6Gx13-4A-1.21 by his use of physical

    force against A.G., O.A., and M.L.

    
    

41. In Count II of the Notice of Specific Charges, the School Board charged Mr. Paulk with violating School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties; School Board

    Rule 6Gx13-5D-1.07, Corporal Punishment - Prohibited; and School Board Rule 6Gx13-4-1.08, Violence in the Workplace.

    1. Rule 6Gx13-5D-1.07 provides as follows: CORPORAL PUNISHMENT - PROHIBITED

       The administration of corporal punishment in Miami-Dade County Public Schools is strictly prohibited. Miami-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 any work missed while on suspension, or to participate in an alternative program if recommended for expulsion.

    2. Rule 6Gx13-4-1.08 provides as follows: VIOLENCE IN THE WORKPLACE

    Nothing is more important to Dade County Public Schools (DCPS) than protecting 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 any 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.

    
    

    Any person who makes substantial threats, exhibits threatening behavior, or engages in violent acts on DCPS property shall be removed from the premises as quickly as safety permits, and shall remain off DCPS premises pending the outcome of an investigation. DCPS will initiate an appropriate response. This response may include, but is not limited to, suspension and/or termination of any business relationship, reassignment of job duties, suspension or termination of employment, and/or criminal prosecution of the person or persons involved.

    
    

    Dade County Public Schools employees have a right to work in a safe environment.

    Violence or the threat of violence by or against students and employees will not be tolerated.

    
    

    Mr. Paulk's use of physical force against A.G., O.A., and M.L. was intended to punish the students rather than to restrain them and prevent them from inflicting injury on themselves or others or from destroying property. Based on the findings of fact herein, the School Board has met its burden of proving by a

    preponderance of the evidence that Mr. Paulk violated School Board Rules 6Gx13-4-1.08 and 6Gx13-5D-1.07; as noted above in paragraph 41, Mr. Paulk's conduct violated School Board

    Rule 6Gx13-4A-1.21.

    
    

42. In Count III of its Notice of Specific Charges, the School Board charged Mr. Paulk with gross insubordination and willful neglect of duty, which are defined in Rule 6B-4.009, Florida Administrative Code, as follows:

    (4) Gross insubordination or willful neglect of duties is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.

    
    

    Mr. Paulk refused to follow the directives of both Mr. Jones and Mr. Gordillo to refrain from the inappropriate use of physical force and to use physical force only when necessary and in accordance with SPM techniques. Based on the findings of fact herein, the School Board has proven by a preponderance of evidence that Mr. Paulk is guilty of gross insubordination, as defined in Rule 6B-4.009(4), Florida Administrative Code.

43. In Count VI of its Notice of Specific Charges, the School Board charged Mr. Paulk with misconduct in office, which is defined in Rule 6B-4.009, Florida Administrative Code, as follows:

    (3) Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-

    1.001, FAC., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, FAC., which is so serious as to impair the individual's effectiveness in the school system.

    
    

44. The School Board's charge that Mr. Paulk committed misconduct in office is predicated on allegations that he violated Rule 6B-1.001(2) and (3) and Rule 6B-1.006(3)(a) and (e), Florida Administrative Code.

    1. Rule 6B-1.001, Florida Administrative Code, the Code of Ethics of the Education Profession, provides in pertinent part:

       1. 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 professional growth and will seek to exercise the best professional judgment and integrity.

       2. 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.

       
       

    2. Rule 6B-1.006, Florida Administrative Code, the Principles of Professional Conduct for the Education Profession in Florida, provides in pertinent part:

    1. Obligation to the student requires that the individual:

       1. 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.

    
    

45. According to the definition in Rule 6B-4.009(3), Florida Administrative Code, the School Board must prove two elements to establish misconduct in office. First, the School Board must prove that Mr. Paulk violated a provision of the Code of Ethics of the Education Profession set forth in Rule 6B- 1.001, Florida Administrative Code, or a provision of the Principles of Professional Conduct for the Education Profession in Florida set forth in Rule 6B-1.006, Florida Administrative Code. Based on the findings of fact herein, the School Board has proven by a preponderance of the evidence that Mr. Paulk inflicted physical harm on A.G. and M.L., contrary to the requirement in Rule 6B-1.006(3)(a), Florida Administrative Code, that he protect their physical health and safety. The School Board has also proven by a preponderance of the evidence that Mr. Paulk did not use his best professional judgment when he used physical force against A.G., O.A., and M.L., contrary to the requirement in Rule 6B-1.001(2), Florida Administrative Code, that he exercise his best professional judgment when dealing with students.

46. The second element of the charge of misconduct in office that the School Board must prove is that the violations

    of the Code of Ethics of the Education Profession and the Principles of Professional Conduct for the Education Profession in Florida are "so serious as to impair the individual's effectiveness in the school system." Rule 6B-4.009(3), Florida Administrative Code. Although there is no direct evidence that Mr. Paulk's use of physical force against A.G., O.A., and M.L. impaired his effectiveness as a school security monitor, there is sufficient evidence in the record to support the inference that Mr. Paulk's conduct did impair his effectiveness as an employee of the School Board, especially since one of the primary job responsibilities of a school security monitor is to help the school staff maintain a safe learning environment for students. Based on the facts found herein and the entire record of these proceedings, the School Board has met its burden of proving by a preponderance of the evidence that Mr. Paulk committed misconduct in office, as defined in Rule 6B-4.009(3), Florida Administrative Code.

47. In Count V of the Notice of Specific Charges, the School Board charged Mr. Paulk with immorality. That term is defined in Rule 6B-4.009, Florida Administrative Code, as follows:

    (2) 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.

    
    

    Although Mr. Paulk's use of physical force against A.G., O.A., and M.L. was inconsistent with standards of public conscience, Mr. Paulk's conduct was not sufficiently notorious to cause either Mr. Paulk or the education profession to suffer public disgrace or disrespect or to impair Mr. Paulk's service in the community. Based on the findings of fact herein, the School Board has failed to prove by a preponderance of the evidence that Mr. Paulk is guilty of immorality, as defined in Rule 6B- 4.009(2), Florida Administrative Code.

48. Based on the findings of fact and on the conclusions of law herein, the School Board has just cause to terminate Mr. Paulk as an educational support employee pursuant to Article XXI, Section 3.D. of the UTD Contract.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order

1. Dismissing Count V of the Notice of Specific Charges;

   
   

2. Finding that, in accordance with the terms of the Contract between the Dade County Public Schools and the United Teachers of Dade, effective July 1, 1997, through June 30, 2000,

   just cause exists to terminate the employment of Christopher A. Paulk; and

3. Dismissing Christopher A. Paulk from employment with the School Board of Miami-Dade County, Florida.

DONE AND ENTERED this 9th day of May, 2000, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 2000.

ENDNOTE

1/ Mr. Grier testified that A.G. wanted to go inside the school building, that he had told A.G. he could not enter the building, and that A.G. ignored him. A.G. testified that he was writing on the school building wall, that Mr. Grier told him to stop, and that he ignored Mr. Grier and continued to write on the wall.

COPIES FURNISHED:

Twila Hargrove Payne, Esquire

School Board of Miami-Dade County, Florida School Board Administrative Building

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Christopher A. Paulk

3442 Southwest 37th Avenue Miami, Florida 33133

Roger O. Cuevas, Superintendent Miami-Dade County Schools

1450 Northeast Second Avenue, Suite 403

Miami, Florida 33132-1308

Honorable Tom Gallagher Commissioner of Education Department of Education

The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400

Michael H. Olenick, General Counsel Department of Education

The Capitol, Suite 1701 Tallahassee, Florida 32399-0400

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.

1 Mr. Grier testified that A.G. wanted to go inside the school building, that he had told him he could not enter the building, and that A.G. ignored him. A.G. testified that he was writing on the school building wall, that Mr. Grier told him to stop writing on the wall, and that he ignored Mr. Grier and continued to write on the wall.

Docket for Case No: 99-002309

Orders for Case No: 99-002309