STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 10-9326

)

JEFFREY ESKRIDGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted by video teleconference at sites in Tallahassee and Miami, Florida, on January 14, 2011, before Administrative Law Judge Edward T. Bauer of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Christopher J. La Piano, Esquire

Miami-Dade County School Board

1450 Northeast 2nd Avenue, Suite 400

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 and, if so, the discipline, if any, that should be imposed against Respondent’s employment.

PRELIMINARY STATEMENT

At its regularly scheduled meeting on September 7, 2010, Petitioner School Board of Miami-Dade County voted to suspend Respondent Jeffrey Eskridge without pay and to initiate proceedings to terminate his employment as a school security monitor.

Respondent timely requested a formal administrative hearing to contest Petitioner's action. On September 28, 2010, the matter was referred to the Division of Administrative Hearings for further proceedings. Thereafter, on December 23, 2010, Petitioner filed its Notice of Specific Charges, wherein it alleged that on or about February 2010, Respondent failed to intervene in an "unsanctioned boxing match" between two students in the wrestling room of Miami Norland Senior High School ("Norland High"). Based upon this alleged misconduct, Petitioner charged Respondent with violation of responsibilities and duties (Count I), violation of the School Board's Code of Ethics (Count II), misconduct in office (Count III), and immorality.

During the final hearing, Petitioner called the following witnesses: D.L., a student; Jamarv Dunn, the vice principal of Norland High; Peter Melton, an assistant principal at Norland High at the time of the alleged incident; Helen Pina, an employee with Petitioner's Office of Professional Standards; and

T.P., a student. Petitioner's Exhibits 1 through 8 and 10 through 13 were received in evidence. Respondent testified on his own behalf and called two other Norland High employees: Gabriel Hubbert, a custodian; and Johnny Darling, a security monitor. Respondent did not introduce any exhibits into evidence.

The final hearing transcript was filed on March 10, 2011.

Both parties timely filed proposed recommended orders, which the undersigned has considered.

Unless otherwise indicated, all rule and statutory references are to the versions in effect at the time of the alleged misconduct.

FINDINGS OF FACT

1. The Parties

   
   

   1. Petitioner is the authorized entity charged with the responsibility to operate, control, and supervise the public schools within Miami-Dade County, Florida.

   2. Respondent was hired by Petitioner as a school security monitor in March of 1993. Although Respondent was initially assigned to Miami Northwestern High School, he was transferred to Norland High in April 1994, where he remained until the incident that is the subject of this proceeding.

   3. Respondent's employment is governed by the collective bargaining agreement between Petitioner and United Teachers of

      
      

      Dade ("UTD"). Pursuant to Article XXI, Section 3.D of the UTD contract, Respondent may only be discharged for "just cause," which 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."

2. The Allegations

1. It is undisputed that during the 2009-2010 school year, an unknown number of students staged a series of unauthorized boxing matches1 at various locations on the grounds of Norland High.

2. Of the multiple boxing incidents, this proceeding concerns only one: a match that took place in Norland High's wrestling room at some point between the beginning of the school year and February 2010.

3. On that occasion, approximately 20 students gathered in the wrestling room (a location where the students were not authorized to be) during the second lunch period to view a match between D.L. and another student.

4. Respondent, who was present2 during the entire incident, neither orally directed the students to stop fighting, nor did he physically intervene.3

5. A videotape of the incident, which was introduced into evidence during the final hearing, depicts the following:

   
   

   00:07 - D.L. and unidentified student, both of whom are wearing boxing gloves, begin fighting.

   
   

   00:19 - Several student "referees" separate D.L. and other participant.

   
   

   00:30 - Respondent, wearing green golf- style shirt (the standard uniform for security monitors), standing in corner of room.

   
   

   01:07 - Fighting resumes.

   
   

   01:35 - D.L. and other participant broken up by students; match concludes.

   
   

   02:00 - Respondent standing near unidentified student participant.

   
   

   02:25 - Students begin to leave. 02:32 - Video ends.

6. As the forgoing timeline indicates, D.L. and the unidentified student boxed for a total of 40 seconds. Although both students threw a number of punches during that span, most of the blows were wild and either missed or did not land cleanly. Nevertheless, the undersigned finds that the episode presented a condition that was potentially harmful to the physical health or safety of D.L. and the other student participant.

7. Although the boxing incident detailed above is one that should have been reported, at no time did Respondent notify any member of Norland High's administration of what occurred.

   
   

   Respondent's explanation, which the undersigned credits with some reluctance, is that he unsuccessfully attempted to contact school administration upon discovering the incident, only to be informed by a front office worker that the administrators were in a meeting. After the students dispersed, Respondent went to lunch and forgot to follow up on the matter.4

8. Eventually, one of Norland High's assistant principals, Peter Melton, learned of the incident after a student told him to search YouTube for "Norland fights."

   Mr. Melton promptly notified the principal of Norland High, and an investigation ensued on or around February 2010.

9. During the initial stages of the investigation, Petitioner suspected that Respondent had organized multiple boxing matches between students on Norland High's campus, charged admission, and awarded prizes to the winners.5 Ultimately, however, Petitioner determined that no probable cause existed to support such allegations, and instead charged Respondent with failing to intervene in the match involving D.L. and with not informing school administration of the incident.

10. Although Norland High's administration faced some level of parental backlash as a result of the boxing incidents, Petitioner did not demonstrate that the backlash was attendant to the charges ultimately filed against Respondent, as opposed

    
    

    to the initial, more serious allegations that Petitioner could not substantiate.

11. Petitioner failed to establish by a greater weight of the evidence that Respondent's effectiveness as a school security monitor has been impaired as a result of his conduct.

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction

       
       

12. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this case pursuant to sections 120.569 and 120.57(1), Florida Statutes.

    1. Basis for Discipline

       
       

13. As a school security monitor, Respondent is a non- probationary educational support employee as defined by section 1012.40(1)(a), Florida Statutes. See Miami-Dade Cnty. Sch. Bd. v. Rich, Case No. 09-1065 (Fla. DOAH Oct. 19, 2009)(noting that a school security monitor is an educational support employee pursuant to section 1012.40).

14. Section 1012.40(2)(b), Florida Statutes, provides that educational support employees may be terminated only "for the reasons stated in the collective bargaining agreement." As noted previously, Article XXI, Section 3.D of the UTD contract provides that educational support personnel may only be terminated for “just cause," which is defined as follows:

    
    

    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 [Florida Administrative Code] Rule 6B-4.009.

    
    

    1. The Standard and Burden of Proof

       
       

15. Petitioner seeks to terminate Respondent's employment.

    
    

    In order to do so, Petitioner must prove by a preponderance of the evidence that Respondent committed the violations as alleged in the Notice of Specific Charges. 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).

16. The preponderance of the evidence standard requires proof by "the greater weight of the evidence" or evidence that "more likely than not" tends to prove a certain proposition. See Gross v. Lyons, 763 So. 2d 276, 280 n.1 (Fla. 2000); see also Williams v. Eau Claire Public Sch., 397 F.3d 441, 446 (6th Cir. 2005)(holding trial court properly defined the preponderance of the evidence standard as "such evidence as, when considered and compared with that opposed to it, has more convincing force and produces . . . [a] belief that what is sought to be proved is more likely true than not true").

    1. Misconduct in Office (Count III)

       
       

17. The undersigned will first address Count III, as a discussion of the elements of "misconduct in office" will guide

    
    

    the resolution of Counts I and II. The State Board of Education has defined the term "misconduct in office" as follows:

    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.

    
    

    Fla. Admin. Code R. 6B-4.009(3) (emphasis added).

    
    

18. In turn, the Code of Ethics of the Education Profession (adopted in Florida Administrative Code Rule 6B- 1.001) and the Principles of Professional Conduct for the Education Profession in Florida (adopted in Florida Administrative Code Rule 6B-1.006), provide in pertinent part as

    follows:

    
    

    6B-1.001 Code of Ethics of the Education Profession in Florida

    
    

    1. The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, and the nurture of democratic citizenship. Essential to the achievement of these standards are the freedom to learn and to teach and the guarantee of equal opportunity for all.

       
       

    2. 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.

       
       

    3. 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.

    
    

    * * *

    
    

    6B-1.006 Principles of Professional Conduct for the Education Profession in Florida.

    
    

    * * *

    
    

    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.

    
    

    * * *

    
    

    1. Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

       
       

    2. Shall not intentionally violate or deny a student's legal rights.

    
    

    * * *

    
    

    (h) Shall not exploit a relationship with a student for personal gain or advantage.

    
    

    (Emphasis added).

    
    

19. "As shown by a careful reading of Rule 6B-4.009, the offense of misconduct in office consists of three elements: (1) A serious violation of a specific rule that (2) causes (3) an impairment of the employee's effectiveness in the school system." Miami-Dade Cnty. Sch. Bd. v. Regueira, Case No. 06-

    
    

    4752, 2007 Fla. Div. Adm. Hear. LEXIS 208 (Fla. DOAH Apr. 11,

    
    

    2007), adopted in toto May 25, 2007. For ease of reference, the second and third elements can be conflated into one component: "resulting ineffectiveness." Id.

20. As underlying infractions on which to base the charge of misconduct in office, Petitioner alleges that by making no effort to break up the boxing match, Respondent committed one or more of the following rule violations: (1) failing to protect the students involved in the match from conditions harmful to their mental and/or physical health and/or safety; (2) intentionally exposing one or more of the students to unnecessary embarrassment; (3) violating the legal rights of the students; or (4) exploiting his relationship with the students for personal gain or advantage.

21. Although the record is devoid of any evidence that would support the second, third, and fourth theories referenced above, the undersigned is persuaded that Respondent, at the very least, should have verbally directed the students to stop boxing and that his failure to do so was patently unreasonable. By taking no action, Respondent failed to protect the participating students from a harmful condition to their physical health or safety——the punches exchanged during the boxing match——contrary to Florida Administrative Code Rule 6B-1.006(3)(a). Cf. Manatee Cnty. Sch. Bd. v. White-Smith, Case No. 10-2978, 2010 Fla. Div.

    
    

    Adm. Hear. LEXIS 91 (Fla. DOAH Aug. 26, 2010)(finding school bus driver, who made no effort to prevent students from consuming alcoholic beverages on bus, guilty of failing to protect students from conditions harmful to their mental and/or physical health and/or safety).

22. As noted above, however, the finding of a rule violation does not end the inquiry, as Petitioner must also demonstrate that the misconduct caused in impairment in Respondent's effectiveness in the school system.

23. A useful illustration of the impaired effectiveness element is provided by MacMillan v. Nassau County School Board, 629 So. 2d 226 (Fla. 1st DCA 1993). In MacMillan, a teacher was charged with misconduct in office after he made inappropriate and lewd remarks to multiple female students. Id. at 228. During the final hearing, the school superintendent testified that the teacher's effectiveness "had been seriously impaired due to the charged behavior, and that termination was the only appropriate penalty." Id. at 230. Although the school board entered a final order terminating the teacher's employment, the First District reversed, holding:

    We reiterate that Rule 6B-4.009(3) defines misconduct in office as a violation of the Code of Ethics and the Principles of Professional Conduct "which is so serious as to impair the individual's effectiveness in the school system" . . . . Other than the Superintendent's conclusory remarks, we find

    
    

    no evidence demonstrating a loss of effectiveness in the school system.

    
    

    Id. at 230. Significantly, the court further held that the publicity stemming from the allegations was not a proper basis for a finding of impaired effectiveness. Id. at 230.6

24. Returning to the facts of the instant case, the only evidence that could plausibly support a finding of impaired effectiveness is the testimony of Jarmv Dunn, Norland High's vice-principal. In particular, Mr. Dunn opined:

    Q. So, going back to the original question, what did this incident do to your trust in Mr. Eskridge?

    
    

    A. It damaged my trust in Mr. Eskridge. It hurt. I was kind of disappointed. You know, he was considered like one of my best monitors. I kind of -- I went to him for a lot of things. He was the type of employee that he did a lot of things to assist us.

    Some things, he went beyond the call of duty. He changed the marquee for me.

    Anytime I called him, I needed him, he would be there. So, it damaged the trust that I had in him, because now I started thinking -

    - as we got the backlash from the community, number one, I was embarrassed, because the incident, once it got out, the parents started calling and it started picking up momentum, so I was hurt. It damaged my trust. I didn't have the confidence that I can really trust him around the students as far as being in a situation where it might be confrontational. I don't know what he would report or what he wouldn't report.

    So, that's how it affected the trust.

    I just don't know what he would report to me

    
    

    and inform me about what's going on the building under my supervision.

    
    

    Final Hearing Transcript, pp. 42-43 (emphasis added).

    
    

25. Although a supervisor's damaged trust in a subordinate could be sufficient to demonstrate impaired effectiveness, Mr. Dunn's testimony indicates that the loss of trust resulted, to some extent, from the backlash attendant to the allegations. This is problematic, as Mr. Dunn's testimony does not indicate whether the backlash was prompted by the original7 allegations——that Respondent organized multiple boxing matches between students, charged admission, and awarded prizes to the victors——or by the allegations ultimately brought by Petitioner, which were significantly watered down. In other words, Mr. Dunn's testimony does not foreclose the possibility that his trust in Respondent was unfairly damaged, in part, by parental backlash to allegations that were later found to be largely unsubstantiated. Cf. Baker v. School Bd. of Marion Cnty., 450 So. 2d 1194, 1195 (Fla. 5th DCA 1984)(holding publicity surrounding criminal charge could not be considered as proof of impaired effectiveness where teacher was subsequently exonerated).

26. Had Mr. Dunn clearly testified that his damaged trust in Respondent resulted from the misconduct ultimately alleged in the Notice of Specific Charges (i.e., that Respondent failed to

    
    

    intervene in a student-initiated boxing match and did not report the incident), the undersigned may well have determined that Respondent's effectiveness in the school district has been impaired. However, Mr. Dunn did not so testify, and the undersigned concludes that Petitioner failed to prove impaired effectiveness by a preponderance of the evidence.8 Accordingly, Respondent is not guilty of misconduct in office.

    1. Employee Conduct /Failure to Report (Count I)

       
       

27. Turning to Count I of the Notice of Specific Charges, Petitioner alleges that just cause exists to terminate Respondent's employment based upon a violation of School Board Rule 6Gx13-4A-1.21, which reads, in relevant 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 or the use of abusive and/or profane language in the workplace is expressly prohibited.

       
       

       * * *

       
       

       1. Reporting Crime, Disruptive and Inappropriate Behavior, and Self-Reporting of Arrest and Convictions/Dispositions.

          
          

          It shall be the responsibility of the Superintendent of Schools to develop, and to

          
          

          distribute periodically, procedures relating to the reporting of criminal acts, disruptive and/or inappropriate behavior.

          
          

          All employees are under an affirmative duty to report any criminal act, and/or disruptive, and/or inappropriate behavior, including but not limited to those delineated in School Board Rules 6Gx13-4- 1.09, Employee-Student Relationships, and 6Gx13-5D-1.07, Corporal Punishment-- Prohibited, to the administrator or designee to whom the employee is responsible. The responsible administrator has the obligation to conduct an immediate investigation of the allegation in a manner consistent with procedures established by the Superintendent of Schools.

          
          

          * * *

          
          

       2. Failure to Report

       
       

       All violations of law and incidents of disruptive and/or inappropriate behavior are to be reported in accordance with administrative procedures established by the Superintendent of Schools.

       
       

       Personnel willfully failing to report such occurrences to the responsible administrator and/or appropriate police agency will be subject to disciplinary action.

       
       

       (Final emphasis added; other emphasis in original).

       
       

28. In its Proposed Recommended Order, Petitioner contends that Respondent violated Sections I, III, and IV of Rule 6Gx13- 4A-1.21. For the reasons detailed below, the undersigned disagrees.

29. With respect to Section I, there is no evidence that Respondent engaged in "unseemly conduct" or used abusive or

    
    

    profane language in the workplace. See Miami-Dade Cnty. Sch. Bd. v. Brooks, Case No. 04-4478 (Fla. DOAH Oct. 17, 2005)("The Rule [6Gx13-4A-1.21] does not define 'unseemly conduct.' In ordinary usage, the word 'unseemly' usually suggests inappropriateness manifesting indecency, bad taste, or poor form

    . . . . Brooks's conduct . . . was not indecorous in that sense, and thus he is not guilty of having acted in an 'unseemly' fashion"), adopted in toto Nov. 18, 2005. Nor has Respondent violated the portion of Section I that requires employees to conduct themselves in a manner that will "reflect credit" upon themselves and the school system, as Petitioner has presented no evidence of an objective standard of conduct to evaluate Respondent's actions. Id. ("Consequently, if Rule 6Gx13-4A-1.21 makes it a disciplinable offense to behave in a way that causes someone not to hold the employee or the school system in high regard, then the decision-maker could apply the Rule in accordance with the rule of law only if he were able to conceptualize an objective standard of conduct, a neutral principle for defining reasonably esteem-worthy behavior under the circumstances at hand . . . . The School Board neither proved nor argued for the existence of such a standard of conduct. Without a neutral principle to apply, the undersigned, were he to attempt to pass judgment on Brooks's behavior, would be merely voicing a personal opinion——the very antithesis of the

    
    

    rule of law . . . . [T]o the extent the School Board has charged Brooks with a general failure to behave in a manner that reflects credit on himself and the school system, it has failed to offer sufficient evidence to sustain the charge.").

30. Next, reading Sections III and IV of School Board Rule 6Gx13-4A-1.21 together, the undersigned concludes that only a "willful" failure to report disruptive or inappropriate behavior is punishable. While not defined in the School Board Rules, "willful" is generally understood in the penal context to require proof that the misconduct was intentional and knowing. See Mancuso v. State, 636 So. 2d 753, 754 (Fla. 4th DCA 1994). Respondent's inadvertent failure to report the boxing does not meet the standard of willfulness.

31. Even assuming Respondent failed to comply with the requirements of Sections I, III, or IV of School Board Rule 6Gx13-4A-1.21, such a violation would not provide just cause to terminate Respondent's employment unless Petitioner also proved a resulting impairment in his effectiveness. Miami-Dade County School Board v. Wallace, Case No. 00-4392, 2001 WL 335989 (Fla. DOAH Apr. 4, 2001), adopted in toto May 17, 2001. In Wallace, which involved the attempted dismissal of a school secretary whose employment was governed by the UTD contract, Judge Van Laningham ruled:

    
    

    The Board grounded its charge of "conduct unbecoming a school board employee" on Wallace's alleged violation of School Board Rule 6Gx13-4A-1.21. This particular offense is not one of the just causes enumerated in the collective bargaining agreement, although that contract's list, by its plain terms, is not intended to be exclusive.

    Yet, to avoid destroying the intended purpose of the contractual provision that permits the discharge of a covered employee only for just cause, the doctrine of ejusdem generis[9]requires that "conduct unbecoming" be treated as a species of misconduct in office, so that, to justify termination, a violation of School Board Rule 6Gx13-4A-1.21 must be "so serious as to impair the individual's effectiveness in the school system."

    
    

    (Second emphasis added); see also Miami-Dade Cnty. Sch. Bd. v. Singleton, Case No. 07-559, 2006 Fla. Div. Adm. Hear. LEXIS 614 (Fla. DOAH June 21, 2007)("The undersigned has repeatedly held, and concludes again here, that violations of school board rules, to warrant termination of employment, must rise to the level of misconduct in office"), adopted in toto Aug. 10, 2007; Miami-

    Dade Cnty. Sch. Bd. v. Brenes, Case No. 06-1758, 2007 Fla. Div. Adm. Hear. LEXIS 122 (Fla. DOAH Feb. 27, 2007)("[T]o justify termination, a violation of School Board Rule 6Gx13-4A-1.21 must be 'so serious as to impair the individual's effectiveness in the school system'"), adopted in toto Apr. 25, 2007; Miami-Dade Cnty. Sch. Bd. v. Depalo, Case No. 03-3242, 2004 Fla. Div. Adm. Hear. LEXIS 1684 (Fla. DOAH May 20, 2004)(same as Wallace, Singleton, and Brenes), adopted in toto July 15, 2004.

    
    

32. For the reasons detailed in the undersigned's discussion of the misconduct in office charge, there is insufficient evidence that Respondent's effectiveness has been impaired. Thus, even if Respondent violated one or more of the requirements of Rule 6Gx13-4A-1.21——which the undersigned concludes he did not——just cause would not exist to terminate his employment. Accordingly, respondent is not guilty of Count I.

    1. Code of Ethics (Count II)

       
       

33. In Count II of the Notice of Specific Charges, Petitioner alleges that there is just cause to terminate Respondent's employment based upon a violation of School Board Rule 6Gx13-4A-1.213, Code of Ethics, which provides, in pertinent part:

    1. INTRODUCTION

       
       

       All members of The School Board of Miami- Dade County, Florida, administrators, teachers and all other employees of Miami- Dade County Public Schools, regardless of their position, because of their dual roles as public servants and educators are to be bound by the following Code of Ethics. . . .

       
       

       * * *

       
       

    2. APPLICATION

       
       

       This Code of Ethics applies to all members of The School Board of Miami-Dade County, Florida, administrators, teachers, and all other employees. The term “employee,” as used herein, applies to all these groups

       
       

       regardless of full or part time status . . . .

       
       

       * * *

       1. CONDUCT REGARDING STUDENTS As set forth in the Principles of

          Professional Conduct for the Education Profession in Florida, each employee:

          
          

          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.

       
       

       * * *

       
       

       1. Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

          
          

       2. Shall not intentionally violate or deny a student's legal rights.

       
       

       * * *

       
       

       8. Shall not exploit a relationship with a student for personal gain or advantage.

       
       

       (Emphasis added).

       
       

34. As previously discussed, there is no evidence that Respondent intentionally embarrassed or disparaged a student, violated a student's legal rights, or exploited a student for personal gain or advantage. However, for the reasons explained in the undersigned's analysis of Count III, the evidence establishes that Respondent failed to make a reasonable effort to protect the students participating in the boxing match from conditions harmful to their physical health and/or safety.

    
    

    Accordingly, Respondent violated Section V.1 of Rule 6Gx13-4A- 1.213.

35. Nevertheless, just cause does not exist to terminate Respondent's employment, as Petitioner has failed to prove that Respondent's effectiveness in the school district has been impaired. See Miami-Dade Cnty. Sch. Bd. v. Singleton, Case No. 07-559, 2006 Fla. Div. Adm. Hear. LEXIS 614 (Fla. DOAH June 21, 2007)(finding that although evidence demonstrated a violation of Rule 6Gx13-4A-1.23, just cause did not exist to terminate employment where evidence failed to prove impaired effectiveness; "[t]he undersigned has repeatedly held, and concludes again here, that violations of school board rules, to warrant termination of employment, must rise to the level of misconduct in office"), adopted in toto Aug. 10, 2007; Miami- Dade County School Board v. Wallace, Case No. 00-4392, 2001 WL 335989 (Fla. DOAH Apr. 4, 2001)(concluding that to justify termination, a violation of a School Board rule must be "so serious as to impair the individual's effectiveness in the school system"), adopted in toto May 17, 2001. However, as discussed below in section H of this Recommended Order, Petitioner may take other disciplinary action against Respondent as "may be consistent with the concept of progressive discipline when the Board deems it appropriate," provided "that the degree

    
    

    of discipline shall be reasonably related to the seriousness of the offense." See UTD Contract, Art. XXI, § 1.

    1. Count IV - Immorality

       
       

36. In Count IV of the Notice of Specific Charges, Petitioner alleges that Respondent is guilty of "immorality," which is defined as:

    [C]onduct 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.

    
    

    Fla. Admin. Code R. 6B-4.009(2) (emphasis added); see also McNeill v. Pinellas Cnty. Sch. Bd., 678 So. 2d 476, 477 (Fla. 2d DCA 1996)("[I]n order to dismiss a teacher for immoral conduct the factfinder must conclude: a) that the teacher engaged in conduct inconsistent with the standards of public conscience and good morals, and b) that the conduct was sufficiently notorious as to [1] disgrace the teaching profession and [2] impair the teacher's service in the community") (emphasis added).

37. In the instant case, Petitioner presented no evidence establishing the applicable "standards of public conscience and good morals." Fla. Admin. Code R. 6B-4.009(2); McNeill, 678 So. 2d at 477. As a result, the undersigned cannot determine whether Respondent violated such public standards. See Broward Cnty. Sch. Bd. v. Deering, Case No. 05-2842, 2006 Fla. Div. Adm.

    
    

    Hear. LEXIS 367, at *12 (Fla. DOAH July 31, 2006)(finding educator not guilty of immorality where school board "did not offer any persuasive evidence establishing the applicable 'standards of public conscience and good morals'").

38. Even assuming Respondent's behavior was inconsistent with the standards of public conscience and good morals, Petitioner failed to demonstrate that Respondent's conduct was so notorious that it impaired his service to the community. Although Mr. Dunn testified that a parental "backlash" occurred, the record is devoid of any evidence as to the number of parents or other members of the community who learned of Respondent's behavior. See id. at *12-13 (concluding that to prove immorality, school board was required to demonstrate that educator's conduct had become "widely and unfavorably known") (emphasis added). Further, there is no evidence that the backlash related to the misconduct ultimately charged, as opposed to the unsubstantiated "organized fight club" allegations. Id. at *13 ("[U]ltimately, it is the teacher's conduct that must be notorious, not the coverage of the conduct or——to be more precise——the conduct as portrayed in the media"). For these reasons, Respondent is not guilty of Count IV.

    1. Discipline

    
    

39. Although just cause does not exist to terminate Respondent's employment, it does not necessarily follow that

    
    

    Respondent should get off "scot-free" for failing to protect the students from conditions harmful to their physical health or safety, as prohibited by Section V.1 of School Board Rule 6Gx13- 4A-1.213. This is because the School Board is authorized, pursuant to the collective bargaining agreement, to take such disciplinary action as "may be consistent with the concept of progressive discipline when the Board deems it appropriate," provided "that the degree of discipline shall be reasonably related to the seriousness of the offense." See UTD Contract, Art. XXI, § 1; Miami-Dade Cnty. Sch. Bd. v. Singleton, Case No. 07-559, 2006 Fla. Div. Adm. Hear. LEXIS 614 (Fla. DOAH June 21,

    2007)(finding educator violated School Board Rules 6Gx13-4A-1.21 and 6Gx13-4A-1.213, but that just cause did not exist to terminate employment where the evidence failed to establish impaired effectiveness; recommending that School Board impose penalty of suspension followed by probation), adopted in toto

    Aug. 10, 2007.

    
    

40. Anticipating that the School Board will deem it appropriate to impose some discipline, the undersigned recommends the following punishment:

    1. Suspension without pay for 15 workdays.

       
       

    2. Upon reinstatement, a six-month term of probation with such conditions as the School Board deems appropriate.

    
    

41. In formulating this recommendation, the undersigned considered Respondent's lack of prior disciplinary history, his years of service with the School Board, the nature of the misconduct, and the fact that Petitioner recently sought only a 30-day suspension in a case that involved behavior far more egregious than Respondent's. See Miami-Dade Cnty. Sch. Bd. v.

Grey, Case No. 10-9324, 2011 Fla. Div. Adm. Hear. LEXIS 18 (Fla. DOAH Mar. 8, 2011)(finding just cause to suspend teacher for 30 days without pay, the punishment sought by the school board, where evidence demonstrated that teacher "intentionally enable[d] one of her students to exact physical retribution against another student . . . failed to report the incident, as required, and then later, at the Post-Performance Meeting, after the School Board's investigation into the matter had commenced, tried to influence her students not to tell the truth about her role, during the incident, as an enabler of the use of physical

force").

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order: (1) finding that just cause does not exist to terminate Respondent's employment; and (2) imposing an appropriate punishment other than dismissal based upon Respondent's failure to make reasonable effort to protect

students from conditions harmful to their physical health or safety.

DONE AND ENTERED this 6th day of April, 2011, in Tallahassee, Leon County, Florida.

S

EDWARD T. BAUER

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 6th day of April, 2011.

ENDNOTES

1 Boxing is not a sanctioned athletic activity in the Miami-Dade County School District.

2 The undersigned credits the testimony of T.P., which alone was sufficient to establish Respondent's presence at the boxing incident. As additional support for this finding, Jamarv Dunn and Peter Melton, both of whom are familiar with Respondent's appearance, persuasively testified during the final hearing (following viewings of the footage) that Respondent is depicted in the video.

3 In making this finding, the undersigned credits the testimony of student T.P., whose account of the event was consistent with the videotape footage. On the other hand, the testimony of Respondent and Mr. Hubbert——in which they claimed that they took action to clear out the students, who quickly dispersed——cannot be reconciled with the events depicted in the video recording.

4 Although Respondent's explanation——that he forgot to follow up with administration because the boxing event did not stand out as a significant incident——may seem implausible at first blush, it is important to recognize that serious, bloody fights (i.e., fights without boxing gloves) were not uncommon at Norland High during the 2009-2010 school year.

5 In particular, the May 5, 2010, "Summary of Conference for the Record," reads:

It is alleged that Jeffrey Eskridge, school security monitor, runs an illegal, organized fight club on campus at Miami Norland Senior High School. It is also alleged that Mr.

Eskridge would go around the school trying to match up students to fight. The fights would be staged in the wrestling room, weight room, or school hallways. Mr.

Eskridge would charge an entrance fee of one dollar to view the fights and there was a prize for the winning fighter. Some past fights can be viewed on the You Tube website. Johnny Darling, school security monitor, and Gabriel Hubbert, custodian, are also listed as suspects in this allegation, are being investigated under R-85112 and R- 85095 respectively.

Pet. Ex. 6, p. 2.

6 Contra to MacMillan, the Second and Fifth District Courts of Appeal have held that impaired effectiveness can be inferred. Purvis v. Marion Cty. Sch. Bd., 766 So. 2d 492, 498 (Fla. 5th DCA 2000)(holding impaired effectiveness could be inferred by nature of misconduct, which included resisting arrest and testifying falsely under oath during a criminal trial; "[t]his is a level of misconduct which would support the inference that Purvis' effectiveness as a teacher has been impaired, even though no parent, student or co-worker was called as a witness to say so"); Walker v. Highlands Cty. Sch. Bd., 752 So. 2d 127,

128 (Fla. 2d DCA 2000)(holding that teacher's misconduct, which resulted in "loss of control" in classroom, permitted an inference of ineffectiveness). Although the undersigned doubts that MacMillan can be rationally distinguished from Purvis or Walker——particularly since the single instance of misconduct in Walker was less serious than the repeated lewd comments in

MacMillan——to the extent the decisions can be reconciled, it appears at the very least that an inference of resulting ineffectiveness should be "used sparingly and with great care .

. . . [and] in limited circumstances." Miami-Dade Cnty. Sch. Bd. v. Wallace, Case No. 00-4392, 2001 WL 335989 (Fla. DOAH Apr. 4, 2001), adopted in toto May 17, 2001. The undersigned concludes that the facts of the instant case do not involve the "limited circumstances" that would permit an inference of impaired effectiveness.

7 Petitioner's abandonment of the "organized fight club" theory is discussed on page 12 of the Final Hearing Transcript.

8 The testimony of Peter Melton was likewise insufficient to prove impaired effectiveness. See Final Hearing Transcript, p.

73 (testifying that his trust in Respondent was "diminished . .

. a little bit.") (Emphasis added).

9 As described in State v. Hearns, 961 So. 2d 211, 219 (Fla. 2007), the canon of statutory construction ejusdem generis provides that "when a general phrase follows a list of specifics, the general phrase will be interpreted to include only items of the same type as those listed."

COPIES FURNISHED:

Christopher J. La Piano, Esquire Miami-Dade County School Board

1450 Northeast 2nd Avenue, Suite 400

Miami, Florida 33132

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

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

Alberto M. Carvalho, Superintendent Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 912

Miami, Florida 33132-1308

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

Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Lois Tepper, Acting General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street 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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 10-009326TTS

Orders for Case No: 10-009326TTS