STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. )

)

ANA B. GARCIA, )

)

Respondent. )

Case No. 10-9325

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted by video teleconference between Miami and Tallahassee, Florida, on December 7, 2010, before Administrative Law Judge Claude B. Arrington of the Division of Administrative Hearings

(DOAH).

APPEARANCES

For Petitioner: Arianne B. Suarez, Esquire

Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 430

Miami, Florida 33132

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U. S. Highway 19 North, Suite 110

Clearwater, Florida 33761 STATEMENT OF THE ISSUE

Whether Respondent committed the acts alleged in the Notice of Specific Charges filed September 28, 2010, and, if so, the

discipline, if any, that should be imposed against Respondent's employment.

PRELIMINARY STATEMENT

At all times relevant to this proceeding, Petitioner employed Respondent pursuant to a professional service contract as a physical education (P.E.) teacher assigned to South Miami Heights Elementary School (South Miami Heights). At its regularly scheduled meeting on September 7, 2010, the School Board of Miami-Dade County, Florida, (Petitioner) voted to suspend the employment of Ana B. Garcia (Ms. Garcia or Respondent) without pay for a period of 30 workdays.

Respondent timely requested a formal administrative hearing to challenge Petitioner's action; the matter was referred to DOAH, and this proceeding followed.

Each reference to a statute is to Florida Statutes (2010), and each reference to a rule is to the rule as published in Florida Administrative Code as of the date of this Recommended Order.

The Notice of Specific Charges dated September 23, 2010, contains factual allegations as to Respondent's actions with her last-period class on April 15, 2010. Based on those factual allegations, Petitioner alleged in Count I that Respondent violated School Board Rule 6Gx13-4A-1.21 (Responsibilities and

Duties) and alleged in Count II that Respondent violated School Board Rule 6Gx13-4A-1.213 (Code of Ethics).

At the final hearing, Petitioner presented the testimony of Suzet Hernandez (Principal of South Miami Heights), Terri Chester (an investigator with Petitioner's Civil Investigation Unit), Anne-Marie DuBoulay (District Director of Petitioner's Office of Professional Standards), three students, and M.V., the mother of one of the students who testified. Petitioner offered pre-marked exhibits 1-6 and 8-13, each of which was admitted into evidence. Petitioner did not offer its pre-marked exhibit

7. Respondent testified on her own behalf and re-called Ms. Hernandez. Respondent offered no exhibits.

On the motion of Petitioner, the undersigned took official recognition of School Board Rules 6Gx13-4A-1.21 (Responsibilities and Duties) and 6Gc13-4A-1.23 (Code of Ethics).

A Transcript of the proceedings, consisting of one volume, was filed on January 20, 2011. Each party filed a Proposed Recommended Order, and both have been duly-considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida.

   
   

2. At all times relevant to this proceeding, Respondent has been on a professional service contract that is subject to a collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade (hereinafter "the UTD Contract"), applicable Florida Statutes, applicable rules adopted by the Florida State Board of Education as set forth in the Florida Administrative Code, and Petitioner's adopted policies and procedures.

3. Article XXI, Section 1.B(1)(a) of the UTD Contract provides that "Any member of the instructional staff may be suspended or dismissed at any time during the school year, provided that the charges against him/her are based upon Florida Statutes."

4. The School Board has adopted Rule 6Gx13-4A-1.21, Responsibilities and Duties, which provides in pertinent that:

   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.

   
   

5. School Board Rule 6Gx13-4A-1.213, Code of Ethics, requires employees of Petitioner to abide by state regulations. The Principles of Professional Conduct for the Education

   
   

   Profession in Florida are set forth in Florida Administrative Code Rule 6B-1.006. Subsections (3)(a) and (e) thereof provide as follows:

   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 physical health and/or safety.

         
         

         * * *

         
         

         (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

         
         

6. Petitioner has employed Respondent as a full-time P.E. teacher at South Miami Heights since the 2006-07 school year. South Miami Heights is a public school located in Miami-Dade County, Florida.

7. Respondent has not been the subject of any disciplinary actions by Petitioner other than the incident that is the subject of this matter.

8. Respondent's practice throughout her tenure at South Miami Heights was to require students arriving at P.E. to line up, stop talking, and generally exhibit good behavior prior to starting class. On those occasions when students were not well- behaved, Respondent required the students to walk in an orderly fashion until they calmed down and showed they were ready for class. On hot days, she would required them to walk around the

   
   

   inside corridors of the school, while on cooler days the students would walk outside. In prior years, with a different principal, Respondent would have the students walk in front of the principal's office, who would then go out and call the students to attention to get them to calm down.

9. During the 2009-10 school year Respondent taught P.E. at South Miami Heights to second, third, fourth, and fifth-grade students between the hours of 8:30 a.m. and 3:00 p.m. Her last

   P.E. class started at 2:00 p.m. and ended at 3:00 p.m. Students in her last class typically brought their book bags with them.

10. On April 15, 2010, at approximately 2:00 p.m., third- grade students from Ms. Fuentes-Garcia's class walked from her class to Respondent's class. There were approximately 25 students in the class. Each student had a book bag.

11. When Respondent took responsibility for the class, many students were talking or otherwise misbehaving.

12. Respondent directed all students in the class to make laps around an outdoor basketball court by walking the white lines that define the outer boundaries of the basketball court.

13. The temperature on April 15, 2010, was 81 degrees.

    
    

    The students were exposed to the sun while they were walking.

    
    

14. Respondent required the students to carry or wear their backpacks while walking around the outdoor basketball court.1

    
    

15. According to Respondent, the students were required to walk around the basketball court until they calmed down. She had no idea how long the students would have to walk until they calmed down when she first directed them to start walking.

16. All students in the class were required to walk without stopping for 32 minutes.

17. A student who tried to put her book bag on the ground was told by Respondent to pick it up and keep walking.

18. At the end of the 32-minute period, Respondent escorted the class back to the vicinity of Ms. Fuentes-Garcia's classroom and had the students walk in an orderly fashion to the playground, where they played games until approximately

    2:54 p.m.

    
    

19. There was a water fountain on playground, but it was not functioning on April 15, 2010. Water was available in a building adjacent to the playground.

20. The students were not permitted to drink water between 2:00 p.m. and 2:54 p.m. At approximately 2:54 p.m. the students left the playground and entered the adjacent building to drink water.

21. A video of the students walking the white lines of the basketball court was captured by the school's security cameras. In one portion of the video, a child can be seen dragging a backpack on the ground. It cannot be determined from the video

    
    

    whether the backpack had wheels. In another portion of the video, Respondent can be seen monitoring the students while standing in the shade of a tree.

22. On April 16, 2010, Ms. Hernandez, the school principal, received complaints from four or five parents of students in the class.

23. M.V., the mother of one of the students in the class, confronted Respondent about the incident on April 16, 2010. This parent testified, credibly, that Respondent told her that she had the class walk the white lines of the basketball court to calm them down and as punishment for being hyper.

24. Following the complaints, the matter was referred to Petitioner's Civil Investigation Unit (CIU) where it was assigned to CIU investigator Terri Chester.

25. Ms. Chester prepared a report after she concluded her investigation. Ms. Duboulay reviewed the report with Respondent in a Conference for the Record on June 8, 2010, and provided Respondent an opportunity to respond to Ms. Chester's report.2

26. Thereafter a Disciplinary Review Team convened and reviewed the case and concluded that probable cause existed that Respondent had committed the violations subsequently alleged in the Notice of Specific Charges dated September 23, 2010. The Disciplinary Review Team recommended that Respondent be suspended without pay for 30 days based on the totality of the

    
    

    circumstances of the case and the exposure of the students to harm.

27. The manner in which Respondent disciplined her class on April 15, 2010, did not reflect credit on herself or on Petitioner.

28. The manner in which Respondent disciplined her class on April 15, 2010, was inconsistent with her duty to "make reasonable effort to protect the student from conditions harmful to learning and/or to the student's physical health and/or safety."3

29. There was insufficient evidence to establish that Respondent "intentionally expose[d] a student to unnecessary embarrassment or disparagement."

30. Petitioner followed all relevant procedures in prosecuting this disciplinary proceeding.

    CONCLUSIONS OF LAW

    
    

31. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this case pursuant to sections 120.569 and 120.of 57(1), Florida Statutes.

32. Because the Petitioner seeks to terminate Respondent's employment and does not involve the loss of a license or certification, Petitioner has the burden of proving the allegations in its Administrative Complaint by a preponderance

    
    

    of the evidence, as opposed to the more stringent standard of clear and convincing evidence. See McNeill v. Pinellas Cnty.

    Sch. Bd., 678 So. 2d 476 (Fla. 2d DCA 1996); Allen v. Sch. Bd. of Dade Cnty., 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v. Sch. Bd. of Dade Cnty., 569 So. 2d 883 (Fla. 3d DCA 1990).

33. The preponderance of the evidence standard requires proof by "the greater weight of the evidence," Black's Law Dictionary 1201 (7th ed. 1999), or evidence that "more likely than not" tends to prove a certain proposition. See Gross v.

    Lyons, 763 So. 2d 276, 289 n.1 (Fla. 2000)(relying on American Tobacco Co. v. State, 697 So. 2d 1249, 1254 (Fla. 4th DCA 1997)

    quoting Bourjaily v. United States, 483 U.S. 171, 175 (1987)).

    
    

34. Pursuant to section 1012.33(6)(a), Florida Statutes, a teacher on a professional service contract may be suspended during the term of the contract for "just cause" as defined by section 1012.33(1)(a), which provides, in relevant part, as

    follows:

    
    

    . . . Just cause includes, but is not limited to, the following instances, as defined by rule of the State Board of Education: immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude.

    
    

35. By including in the definition of the term "just cause" the phrase "includes, but is not limited to", the

    
    

    Legislature made clear that the items listed in the definition were not intended to be exhaustive and that other wrongdoing may also constitute "just cause" for suspension or dismissal. See Dietz v. Lee Cnty. Sch. Bd., 647 So. 2d 217, 218-19 (Fla. 2d DCA 1994).

36. Section 1001.32(2), Florida Statutes, confers the following authority on district school boards:

    (2) DISTRICT SCHOOL BOARD.-In accordance with the provisions of s. 4(b) of the State Constitution, district school boards shall operate, control, and supervise all free public schools in their respective districts and may exercise any power except as expressly prohibited by the State Constitution or general law.

    
    

37. Such authority extends to personnel matters and includes the power to suspend and dismiss employees. See §§ 1001.42(5), 1012.22(1)(f), and 1012.33(6).

38. A school board has the general authority to adopt rules pertaining to personnel pursuant to section 1012.23(1) and the specific authority to adopt rules governing the ethical conduct of personnel pursuant to section 1001.42(6).

39. Petitioner has adopted personnel rules that its employees are required to follow, two of which are the rules cited in the Notice of Specific Charges. Petitioner is authorized by the above-cited statutes to suspend the employment of an employee who violates an adopted personnel rule.

    
    

40. Petitioner proved by a preponderance of the evidence that Respondent violated School Board Rule 6Gx13-4A-1.21 (Responsibilities and Duties).

41. Petitioner proved by a preponderance of the evidence that Respondent violated School Board Rule 6Gc13-4A-1.23 (Code of Ethics) by violating Florida Administrative Code Rule 6B- 1.006(3)(a).

42. Petitioner did not prove by a preponderance of the evidence that Respondent violated Florida Administrative Code Rule 6B-1.006(3)(e).

43. These rule violations gave Petitioner "just cause" to suspend Respondent for 30 workdays pursuant to section 1012.33(6)(a).

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 adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order sustain the suspension of Respondent's employment without pay for a period of 30 workdays.

DONE AND ENTERED this 14th day of March, 2011, in Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 2011.

ENDNOTES

1 In making this finding, the Respondent's testimony that she had not required the students to wear or carry their backpacks has been rejected as being contrary to the greater weight of the competent evidence.

2 The Summary of the Conference-for-the-Record is in evidence as Petitioner's Exhibit 12 and Respondent's two-page response is in evidence as Petitioner's Exhibit 13.

3 In making this finding, the undersigned has considered the testimony of the administrators, the age and size of the children involved, the length of time they were forced to walk, the fact that they wore or carried backpacks, the temperature, and the lack of a water break. The undersigned has also considered that all three of the students who testified had sore backs on the night of April 15, 2010. One of the students in the class is asthmatic. No consideration has been given that fact because there was no evidence that the student suffered an asthma attack as a result of the incident described in this Recommended Order, and there was no evidence that the described activity would likely trigger such an attack.

COPIES FURNISHED

Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue

Miami, Florida 33132-1308

Lois Tepper, Acting General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Dr. Eric J. Smith Commissioner of Education Department of Education

Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Arianne B. Suarez, Esquire Miami-Dade County School Board

450 Northeast Second Avenue, Suite 430 Miami, Florida 33132

Mark Herdman, Esquire Herdman & Sakellarides, P.A.

29605 U. S. Highway 19 North, Suite 110

Clearwater, Florida 33761

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: 10-009325TTS

Orders for Case No: 10-009325TTS