STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 00-0844

)

DEBORAH BOYLE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on May 17 and 18, 2001, in West Palm Beach, Florida, before Administrative Law Judge Michael M. Parrish of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Alan M. Aronson, Esquire

Virginia Tanner-0tts, Esquire Palm Beach County School Board 3318 Forest Hill Road, Suite C-302

West Palm Beach, Florida 33406-5813

For Respondent: Matthew E. Haynes, Esquire

Chamblee, Johnson, Haynes & Martinelli, P.A.

The Barristers Building 1615 Forum Place, Suite 500

West Palm Beach, Florida 33401 STATEMENT OF THE ISSUES

The issues in this case concern whether the Petitioner may lawfully terminate the Respondent's employment as a teacher, or

take other disciplinary action against the Respondent by reason of allegations set forth in an Amended Administrative Complaint.

PRELIMINARY STATEMENT

At the final hearing on May 17 and 18, 2001, the Petitioner presented the testimony of four witnesses during its case in chief and also presented one additional witness on rebuttal.

The Petitioner also offered five exhibits, all of which were received in evidence. The Respondent testified on her own behalf and also presented the testimony of three additional witnesses. The Respondent had one exhibit marked for identification, but later withdrew the exhibit from further consideration.

At the request of the parties, official recognition was take of several specified statutory and rule provisions, of School Board Policy 6Gx50-3.27, and of the collective bargaining agreement between the School Board and the Classroom Teachers Association.1

At the conclusion of the hearing the parties requested, and were granted, forty-five days from the filing of the transcript within which to file their respective proposed recommended orders. The transcript was filed on June 4, 2001. At the request of the parties, the deadline for filing proposed recommended orders was extended until October 4, 2001.

Thereafter, both parties filed Proposed Recommended Orders

containing proposed findings of fact and conclusions of law. The proposals submitted by the parties have been carefully considered during the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material to this case, Ms. Deborah Boyle (the Respondent) was employed as a teacher by the Palm Beach County School Board (the Petitioner). During the 1998/1999 school year, the Respondent was a Kindergarten teacher at the Pahokee Elementary School in Pahokee, Florida. As of that time, the Respondent had taught at the Pahokee Elementary School for more than twenty years.

2. During the 1998/1999 school year, L. M.2 was a Pre- Kindergarten student at Pahokee Elementary School. At all times material to this case, L. M. was assigned to a class that was taught by a teacher named Ms. Hayes, although he was sometimes supervised on the playground by a teacher named Gloria Stewart. At the time of the events in mid-May of 1999, L. M. was approximately three and a half years old.

3. On May 13, 1999, shortly after noon, Ms. Stewart was sitting beside a small playground supervising the children in her class who were playing on the playground. Ms. Stewart was also supervising L. M. because L. M. had not wanted to return to class with his classmates. Ms. Hayes, who was L. M.'s teacher, had arranged with Ms. Stewart for Ms. Stewart to supervise L. M.

   on the playground while Ms. Stewart was supervising her own students.

4. While Ms. Stewart's students and L. M. were all still on the playground, the Respondent decided to take her students to the same playground for a few minutes as a reward for how well her students had behaved that day. Shortly after the Respondent and her students arrived at the playground, some of the Respondent's students complained to the Respondent that a little boy was sitting by the slide throwing sand on everyone who walked near him. The little boy they complained about was

   L. M.

   
   

5. The Respondent walked over to where L. M. was sitting in sand by the slide and observed that he was holding sand in both of his hands. As she approached L. M., the Respondent leaned down and asked him to please not throw any more sand.

   L M.'s immediate response was to throw sand in the Respondent's face and then grab more sand. The Respondent decided that the best solution to the problem would be to move L. M. to a location where he did not have immediate access to sand.

   Thereupon, the Respondent picked L. M. up from the sandy place where he had been sitting and carried him several feet to a grassy area and placed him down on the grass. While the Respondent was lifting and carrying L. M., he was strenuously resisting the Respondent's efforts to relocate him. His

   resistance included flailing his arms, kicking with his feet, biting, and spitting. The manner in which the Respondent picked up and carried L. M. was an appropriate way of attempting to address L. M.'s misconduct. The Respondent did not cause any physical injury to L. M.

6. The Respondent left L. M. sitting on the grass.

   
   

   Ms. Stewart went to check on L. M. and noticed that L. M. had an abrasion on his chin.3 Ms. Stewart sent a student to report to Ms. Hayes that L. M. had an abrasion on his chin. Ms. Hayes came to the playground, and shortly thereafter L. M. returned to Ms. Hayes' classroom.

7. A few days later, L. M's family requested an investigation into the manner in which L. M. received an abrasion on his chin. The School Board's police department initiated a criminal investigation based upon allegations that the Respondent had battered L. M. At the conclusion of the criminal investigation, the Respondent was charged with one count of felony child abuse and one count of misdemeanor battery. An investigation by the School Board's Professional Standards Office concluded with a recommendation that the Respondent be terminated.

8. The Respondent retained legal counsel to represent her in the criminal case. Her legal counsel negotiated a plea agreement and recommended that the Respondent accept the

   agreement to avoid the costs and risks of going to trial. Consistent with the advice of her legal counsel, the Respondent accepted the negotiated plea agreement, and on November 13, 2000, the Respondent entered a plea of nolo contendere to a misdemeanor charge of battery in violation of Section 784.03, Florida Statutes. Consistent with the plea agreement, the judge withheld adjudication on the misdemeanor charge and placed the Respondent on probation for a year. Also consistent with the plea agreement, the State Attorney dismissed the felony charge against the Respondent.

9. Pursuant to Article 1, Section M, paragraph 1, of the Collective Bargaining Agreement between the Palm Beach County School Board and the Classroom Teachers' Association, Petitioner can take no disciplinary action against Respondent "except for just cause and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action."

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

11. The Petitioner has two basic grounds upon which it contends that the Respondent's employment should be terminated. The first of these grounds is based on the School Board's

    contention that the Respondent committed the acts described in subparagraphs A, B, and C of paragraph 8 of the Amended Administrative Complaint.4 This basis for termination of the Respondent's employment fails for lack of sufficient proof to establish by clear and convincing evidence that the Respondent committed the acts described in subparagraphs A, B, and C of paragraph 8 of the Amended Administrative Complaint.5 Rather, the greater weight of the evidence in this case is more consistent with the Respondent's description of what happened on May 13, 1999, than with the version put forward by the School Board's witnesses.6 Inasmuch as the persuasive evidence is insufficient to establish that the Respondent committed the misconduct alleged in subparagraphs A, B, and C of paragraph 8 of the Amended Administrative Complaint, such alleged conduct cannot be a basis for termination or suspension of the Respondent's employment.

12. The second basis upon which the Petitioner seeks to suspend and terminate the Respondent's employment is based on the argument that, by reason of the Respondent's plea of nolo contendere to a misdemeanor charge of battery in violation of Section 784.03, Florida Statutes, the Respondent is barred by Chapter 435, Florida Statutes, from working as a teacher unless and until she receives an exemption pursuant to Section 435.07, Florida Statutes. The argument fails because teachers are not

    subject to the provisions of Chapter 435.07. Rather, teachers are subject to the provisions of Section 231.02, Florida Statutes. Subsection (1) of Section 231.02, Florida Statutes, requires, in pertinent part, that all teachers "be of good moral character," and Subsection (2) reads as follows, in pertinent part:

    (2)(a) Instructional and noninstructional personnel who are hired to fill positions requiring direct contact with students in any district school system or laboratory school shall, upon employment, file a complete set of fingerprints taken by an authorized law enforcement officer or an employee of the school or district who is trained to take fingerprints. These fingerprints shall be submitted to the Department of Law Enforcement for state processing and to the Federal Bureau of Investigation for federal processing. The new employees shall be on probationary status pending fingerprint processing and determination of compliance with standards of good moral character. Employees found through fingerprint processing to have been convicted of a crime involving moral turpitude shall not be employed in any position requiring direct contact with students. (Emphasis added.)

    
    

13. The Respondent has not been convicted of a crime, because adjudication was withheld in her criminal case. In this regard, it is important to note that, unlike Chapter 435, Florida Statutes, a plea of nolo contendere is not treated the same as a conviction in Section 231.02, Florida Statutes. Accordingly, under Section 231.02, Florida Statutes, the

Respondent's plea does not pose an impediment to her continued employment as a teacher.7

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that the School Board enter a Final Order dismissing the Amended Administrative Complaint, reinstating the Respondent to her position as a teacher, and awarding back pay to the Respondent for the period during which she has been suspended without pay.

DONE AND ENTERED this 3rd day of December, 2001, 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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 2001.

ENDNOTES

1/ The statutory provision of which official recognition was taken include the following: Sections 120.569, 120.57, 230.23,

230.33, 231.36, 232.273, Florida Statutes, and Chapter 435, Florida Statutes. The rule provision of which official recognition was taken include the following: Rule 6B-4.009, Florida Administrative Code.

2/ Initials have been substituted for the name of the student. The student's full name is known to the parties and is noted elsewhere in the record for those who need to know.

3/ There is no persuasive competent substantial evidence as to how L. M. received an abrasion on his chin. Specifically, there is no clear and convincing evidence that the Respondent caused the abrasion on L. M.'s chin.

4/ The acts described in the referenced subparagraphs consist of several acts of battery on a minor.

5/ Ordinarily, the Petitioner would have the burden of proving its allegations by only a preponderance of the evidence. Dileo v. School Board of Dade County, 569 So. 2d 883, 884 (Fla. 3d DCA 1990); Ferris v. Austin, 847 So. 2d 1163 (Fla. 5th DCA 1986).

But in its collective bargaining agreement, the School Board has burdened itself with a higher standard of proof; i.e., clear and convincing evidence. When a School Board agrees to such a high standard, it is bound by its agreement. See School Board of Seminole County v. Morgan, 582 So. 2d 787 (Fla. 5th DCA 1991); Bell v. School Board of Dade County, 681 So. 2d 843 (Fla. 3d DCA 1996); Collins v. School Board of Dade County, 676 So. 2d 1052 (3d DCA 1996); Centellas v. School Board of Dade County, 683 So. 2d 644 (Fla. 3d DCA 1996). See also Palm Beach County School Board v. Walter Auerbach, DOAH Case No. 96-3683 (1997).

6/ In this regard it is noted that the Respondent's testimony about the events of May 13, 1999, is more persuasive, more logical, more consistent with human experience, and more consistent with other evidence in this case than is the testimony of Gloria Stewart.

7/ With regard to the "good moral character" requirement contained in Section 231.02, Florida Statutes, there is no clear and convincing evidence that the Respondent ever engaged in any conduct that demonstrated a lack of good moral character. To the contrary, the greater weight of the evidence is to the effect that the Respondent did not engage in any of the misconduct described in the Amended Administrative Complaint.

COPIES FURNISHED:

Alan M. Aronson, Esquire Virginia Tanner-0tts, Esquire Palm Beach County School Board

3318 Forest Hill Road, Suite C-302 West Palm Beach, Florida 33406-5869

Matthew E. Haynes, Esquire Chamblee, Johnson, Haynes

& Martinelli, P.A. The Barristers Building

1615 Forum Place, Suite 500 West Palm Beach, Florida 33401

Art Johnson, Superintendent Palm Beach County School Board

3340 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406-5869

Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08

Tallahassee, Florida 32399-0400

James A. Robinson, 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.

Docket for Case No: 00-000844

Orders for Case No: 00-000844