vs. )
Respondent. )
Case No. 07-1470
Pursuant to notice, a hearing was conducted in this case on July 24, 2007, in Miami, Florida, before Administrative Law Judge June C. McKinney of the Division of Administrative Hearings, pursuant to the authority set forth in Sections
120.569 and 120.57(1), Florida Statutes (2007).
For Petitioner: Janeen L. Richard, Esquire
Herdman & Sakellarides, P.A.
29605 U.S. Highway 19 North, Suite 110
The issue in this case is whether Respondent, Jean Berrouet, committed the violations alleged in the Notice of
Specific Charges and, if so what disciplinary action should be taken against him.
By letter dated March 15, 2007, Respondent was notified that the School Board of Miami-Dade County at its scheduled meeting of March 14, 2007, took action to suspend Respondent without pay from his teaching position and initiate dismissal proceedings against him from all employment by the Miami-Dade County Public Schools, effective the close of the workday, March 14, 2007.
Respondent elected to dispute the reasons for his dismissal stemming from the student incident regarding M.L. that occurred at Lakeview Elementary School (Lakeview) on October 9, 2006.
Because he requested a formal proceeding, the matter was referred to the Division of Administrative Hearings.
The Notice of Specific Charges filed against Respondent surrounding the October 9, 2006, incident charged Respondent with misconduct in office, gross insubordination, and violation of School Board rules regarding corporal punishment and responsibilities and duties.
At hearing, Petitioner presented the testimony of four witnesses and Petitioner's Exhibits numbered 1 through 35 were admitted into evidence. Respondent testified on his own behalf and the parties stipulated into evidence in lieu of the
deponents' live testimony the student deposition transcripts (of M.L., A.B., D.C., J.C., P.W., S.S.C., M.P., F.P., R.P., R.J. and S.J.).
The proceedings were transcribed and the parties availed themselves of the right to submit proposed recommended orders after the filing of the transcript. The Transcript of the final hearing was filed with the Division of Administrative Hearings on August 13, 2007. Upon the granting of an extension to the proposed recommended order filing time, both Petitioner and Respondent filed timely Proposed Recommended Orders, which have been considered in the preparation of this Recommended Order.
Jean Berrouet (Berrouet) has worked at Lakeview as a teacher from 1992 through October 2006 in Miami-Dade County Florida. He taught Haitian Creole to the ESOL students from Haitian background as well as basic science, social studies, and mathematics to the ESOL Level 1 and 2 Haitian Creole students.
On or about June 1, 1998, Berrouet was officially reprimanded for using corporal punishment in disciplining students. He was specifically directed by memorandum "immediately to refrain from using physical means to affect student behavior" by Lakeview Principal, Edith Norniella.
Berrouet's licensure was also previously subjected to disciplinary action in Florida. He was reprimanded by the
Education Practices Commission for inappropriately disciplining a student in class by hitting a student with a pointer. On or about April 23, 1999, the Education Practices Commission placed Berrouet on two years of probation with the following terms: acceptance of a written reprimand, yearly probation fees of
$150.00, completion of a three credit course on classroom management, participation in the recovery network program and prohibition from violating any laws as well as fully complying with all district school board regulations, school rules and State Board of Education Rule 6B-1.006.
Prior to starting the 2006-2007 school year, Berrouet attended an in-service meeting at Lakeview where school policies were reviewed including student behavior, the code of conduct, and corporal punishment. Berrouet was also provided a Lakeview Elementary School Staff Handbook that included specific guidelines and procedures for student behavior including discipline. As a School Board employee, Respondent was expected to conduct himself in accordance with School Board rules.
Respondent holds professional teaching certificate 677708 issued by the Florida Department of Education (DOE). His certificate is valid through June 30, 2009.
Berrouet only teaches Haitain Creole students. Since 1992, he has used a technique to help the Haitian Creole students
try to transition into the American culture and focus them on their lesson.
The technique included Berrouet touching the students' ears to get their attention and saying "You have two ears, not one. You have one mouth, not two . . . So you should do more listening than talking."
No parent ever complained about the technique to Berrouet or the Administration. Additionally, no administrator ever addressed that there was a problem with the technique Berrouet performed. The technique is not a punishment. Berrouet even used the technique at least once in the classroom on a student while being observed by the principal.
Berrouet's testimony is more credible than the children because he has been using the focusing technique for 14 years, been observed by an administrator using the technique and it was never brought to his attention that it was inappropriate.
On October 9, 2006, during the last period of the day, Berrouet had approximately 30 students in his mathematics tutorial after-school class from 5:00-6:00 p.m. His actual classroom size assignment was 15. However, a teacher had left early for the day and the other teacher's students were in
Mr. Berrouet's classroom for him to oversee, even though the additional 15 students were permanently assigned to the teacher's classroom who had left early.
An altercation occurred in Berrouet's classroom at approximately 5:45 p.m. between two students from the other class, A.B. and M.L. A.B ran behind Berrouet, who was standing at the door and asked Berrouet to help protect her from M.L.
M.L. was running after A.B. Berrouet put his hand up and directed M.L. to go back to her seat. However, M.L. kept chasing after A.B. running toward Berrouet into his outreached arm and hand with her upper body (to the chest, neck or shoulder). A.B. left the room. Berrouet stood between A.B. and
M.L. at the doorway to prevent M.L from going after A.B. M.L. continued to try to push through Berrouet trying to get to A.B. The incident took a few seconds.
Berrouet did not make any effort to activate the button to call the office about the incident. If he had left the doorway to go across the classroom to push the office button, M.L. would have had access to attack A.B. Berrouet standing in the doorway was the only barrier preventing M.L. from reaching A.B.
After Berrouet told M.L. to sit down and she was unable to get pass Berreout to A.B., she went to her seat and cried. M.L. cried because she was upset and couldn't get to
A.B. Berrouet kept A.B outside and allowed another student to get her book bag and take it to her so she could leave for the day. Berrouet kept M.L. in the classroom a few minutes after
A.B left to ensure that A.B. was gone and no further interaction would occur between the girls.
Berrouet was not aware of the earlier kicking incident between M.L. and A.B. He first became aware of a problem between the girls when A.B. ran behind him for help. Berrouet did not write up a Student Case Management Referral Form since he had no knowledge of the kicking incident and because he thought he had diffused the potential altercation by him standing between the students.
Berrouet's testimony and that of M.L. is deemed more persuasive then that of the other children witnesses. As the parties were directly involved in the incident, Berrouet and
M.L. provided the most competent, credible testimony about the disputed matters.
On October 10, 2006, the next morning after the incident, M.L.'s mother showed up with M.L. at Lakeview to meet with Mr. Jeffrey Hernandez, the principal. M.L.'s mother reported that Berrouet had grabbed M.L. by the neck on the previous day. Hernandez completed a Miami-Dade County Public Schools School Operations Incident Report regarding the matter. Berrouet was provided a memorandum dated October 10, 2007, entitled Notification of Allegation.
Subsequently, the School Board of Miami-Dade County at a meeting on March 14, 2007, suspended Berrouet without pay and initiated dismissal proceedings.
On May 3, 2007, the School Board filed its Notice of Specific Charges charging Respondent with misconduct in office, gross insubordination, and violation of School Board policies regarding corporal punishment and responsibilities and duties.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2007).
The Petitioner has the burden of proving that it has just cause to terminate the Respondent's employment as a classroom teacher.
"Just Cause" is defined to include misconduct in office by Section 1012.33(1)(a), Florida Statutes. Moreover, Florida Administrative Code Rule 6B-4.009 identifies the criteria necessary for suspension or dismissal of instructional personnel.
Petitioner's burden to prove the charges against Respondent must be made by a preponderance of the evidence. Allen v. School Board of Dade County, 571 So. 2d 568 (Fla. 3d
DCA 1990); Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990).
The Notice of Charges filed against Respondent alleges the following:
On or about October 9, 2006, an allegation was raised against Respondent that he grabbed a student, M.L., by the neck choking her.
* * *
Despite the directives and disciplinary actions taken against Respondent by the School Board and the EPC, Respondent continued to utilize inappropriate discipline techniques with his students by pulling and/or pinching the students on their ears or arms as a means of affecting their behavior.
Based upon these allegations, Respondent is charged with the following four counts: violation of 6B-4.009(3), F.A.C. Misconduct in Office; Section 1003.01 (7), Florida Statutes and School Board Rule 6Gx13-5D-1.07, Corporal Punishment-Prohibited; 6Gx13-4A-1.21, Responsibilities and Duties and 6B-4.009(4), Gross Insubordination.
Misconduct in Office
State Board Rule 6B-4.009(3) provides in pertinent part:
(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, F.A.C., and the Principles of Professional Conduct for the education profession in Florida as adopted in Rule 6B- 1.006, F.A.C., which is so serious as to
impair the individual's effectiveness in the school system.
Florida Administrative Code Rule 6B-1.001 is entitled Code of Ethics of the Education Profession in Florida. Subsections (2) and (3) of the Rule provide:
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.
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.
Florida Administrative Code Rule 6B-1.006 is entitled Principles of Professional Conduct for the Education Profession in Florida. Subsections (3)(a) and (e) provide:
Obligation to the student requires that the individual:
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.
Petitioner has failed to sustain the charges against Respondent in this case.
The evidence, taken as a whole, demonstrated that Respondent protected A.B. from getting attacked by M.L. Berrouet put his outstretched arm and hand up and M.L. ran into it. Berrouet did not initiate the touching between M.L. But
M.L. instead ran into Respondent, pushing and trying to get around Respondent as she chased A.B. The incident took place in a few seconds.
While Respondent clearly touched M.L. in the upper portion of her body, the greater weight of the evidence showed that he did so because he was trying to defuse the potential attack of A.B. by M.L.
The emergency button was across the classroom and Berrouet would have allowed M.L. to attack A.B. if he had attempted to get to the button to call the office to get help. So, instead he chose to stand between the students to stop the attack. Such an exercise of quick professional judgment to protect a student during a heated confrontational incident of a few seconds between two students demonstrates Berrouet's upholding the Code of Ethics pursuant to Florida Administrative Code Rule 6B-1.001 and School Board Rule 6Gx13-4A-1.213.
Berrouet also protected A.B. from conditions harmful to her physical health and/or safety meeting the Principles of Professional Conduct for the education Profession in Florida. Moreover, the record fails to demonstrate that Berrouet grabbed
the student, M.L. by the neck choking her as alleged in the Notice of Charges.
Petitioner has also accused Respondent of misconduct in office because he allegedly pulled and/or pinched students on their ears or arms. The record is clear that since 1992 Respondent has used the technique of touching the students' ears to focus them on their lessons while saying, "You have two ears, not one. You have one mouth, not two . . . So you should do more listening than talking."
Berrouet was even observed by a principal utilizing the focus procedure on a student in the classroom. No complaints were ever made regarding Respondent's focus technique during his 14 years of use in his classroom.
The record lacks evidence that any students suffered embarrassment from the focus technique.
Thus, the Petitioner has not proven that Berrouet engaged in any actual misconduct.
Effectiveness as a Teacher
Nothing Berrouet did on October 9, 2006, or when utilizing his focus technique reduced his effectiveness as an employee of the School district. Petitioner presented a witness who gave conclusory testimony regarding his opinion that Berrouet had lost the ability to be an effective teacher because after the incident students who had seen it reported it to their
parents. The parents contacted the school office to find out what occurred and voiced their concern with their children staying in Mr. Berrouet's tutorial class or day class.
This testimony, however, is deemed unpersuasive and accorded little weight since Berrouet engaged in no misconduct, as has been concluded and found above. The issue of continued effectiveness is moot in any event.
School Board Rules
Corporal Punishment-Prohibited
Section 1003.01(7), Florida Statutes, defines Corporal Punishment as:
7) "Corporal punishment" means the moderate use of physical force or physical contact by a teacher or principal as may be necessary to maintain discipline or to enforce school rule. However, the term "corporal punishment" does not include the use of such reasonable force by a teacher or principal as may be necessary for self-protection or to protect other students from disruptive students.
The practice of corporal punishment is strictly prohibited as set forth in School Board Rule 6Gx13-5D-1.07. The rule implements and provides the grounds for Corporal Punishment-Prohibited 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 . . .
It is reasonably clear from this definition, and the undersigned concludes, that "corporal punishment" is a disciplinary measure. Inasmuch as the facts found above, it has been determined that the Petitioner has failed to demonstrate that Berrouet was disciplining students either with the incident of October 9, 2006, with M.L. or when he utilized his lesson focusing technique on the students.
Accordingly, although Berrouet physically made contact with M.L. when she ran into his outstretched arm and hand while chasing A.L., and Berrouet admittedly touched students' ears while using his lesson focusing technique for 14 years, neither contact was administered as a disciplinary measure nor were the actions used to admonish behavior. In fact, the contact with
M.L. was inadvertent and the focusing technique was for encouragement. Both actions were reasonable under the circumstances. It is concluded, therefore, that no violation of corporal punishment has been established.
Responsibilities and Duties
At all times material to the instant case, School Board Rule 6Gx13-4A-1.21 has provided as follows:
Permanent Personnel RESPONSIBILITIES AND DUTIES
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 and/or profane language in the workplace is expressly prohibited.
Berrouet's conduct, as described above, has been deemed appropriate. He acted in a manner during his employment that will reflect credit upon himself and the school system by diffusing a potential fight, protecting a student from harm and teaching his students to focus on their lessons with his technique.
Therefore, Petitioner failed to demonstrate how Berrouet's conduct violated School Board Rule 6Gx13-4A-1.21.
Gross Insubordination
Florida Administrative Code Rule Section 6B- 4.009(4)provides:
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.
Berrouet had previously been given direct orders on two occasions not to use corporal punishment when disciplining students. He had been reprimanded by Lakeview Principal, Edith Norniella, for using corporal punishment in disciplining students and his license was subject to discipline for him inappropriately disciplining a student in 1999.
However, the record fails to demonstrate gross insubordination in the instant case since Berrouet neither choked M.L. as a physical means to affect student behavior nor used inappropriate procedures with his focus technique.
As found above, no evidence demonstrates conduct that is corporal punishment. And, the record lacks evidence to show Berrouet did not follow the previous orders given by the proper authority regarding discipline. Therefore, Petitioner has failed to sustain just cause for termination due to gross insubordination.
Upon consideration of the Findings of Fact and the Conclusions of Law reached, it is
RECOMMENDED that Petitioner enter a final order dismissing all charges against Respondent and Miami-Dade County School Board reinstate Respondent with full back pay and benefits.
DONE AND ENTERED this 9th day of October, 2007, in Tallahassee, Leon County, Florida.
JUNE C. McKINNEY
Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 2007.
Mark Herdman, Esquire Herdman & Sakellarides, P.A.
29605 U.S. Highway 19 North, Suite 110
Janeen L. Richard, Esquire Miami-Dade County School Board
Deborah K. Kearney, General Counsel Department of Education
Dr. Rudolph F. Crew, Superintendent Dade County School Board
1450 Northeast Second Avenue No. 912
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.
