vs. ) Case No. 11-2082
Respondent. )
Pursuant to notice, a hearing was conducted in this case pursuant to sections 120.569 and 120.57(1), Florida Statutes,1 before Stuart M. Lerner, a duly-designated administrative law judge of the Division of Administrative Hearings (DOAH), on September 9, 2011, by video teleconference at sites in Miami and Tallahassee, Florida.
For Petitioner: Arianne B. Suarez, Esquire
For Respondent: Mark S. Herdman, Esquire
Herdman and Sakellarides, P.A.
29605 U.S. Highway 19 North, Suite 110
Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges and, if so, whether such conduct constitutes just cause to dismiss her from her teaching position, as further alleged in the Notice of Specific Charges.
By letter dated April 14, 2011, from Miami-Dade County School Board (School Board) Administrative Director, Ana Rasco, Ed.D., Respondent was notified that the School Board had taken action to suspend her from her teaching position, without pay, effective April 13, 2011, and had initiated dismissal proceedings against her "for just cause." Respondent, by letter dated that same day (April 14, 2011), "request[ed] a hearing [on the matter] to be held before an administrative law judge." Respondent's hearing request was referred to DOAH on April 25, 2011.
The School Board filed a Notice of Specific Charges on August 9, 2011, which contained the following "Statement of Facts":
The Notice alleged that, based on these "[f]acts," Respondent was guilty of "misconduct in office," as defined in Florida Administrative Code Rule 6B-4.009(3) (Count I); violated School Board Rule 6Gx13-4A-1.21 (Count II); and violated School Board Rule 6Gx13-4A-1.213 (Count III), thus giving the School Board "just cause" to dismiss her.
As noted above, the final hearing in the instant case was held on September 9, 2011.2 Nine witnesses testified at the hearing: Marie Beaubien, Edouard St. Hilaire, Paul Fabre, Dr. Marie Bazile, Socra Antenor, Paul Greenfield, Helen Pina, Nancy Kurre, and Respondent. In addition to the testimony of these nine witnesses, 15 exhibits (Petitioner's Exhibits 1 through 15) were offered and received into evidence.
At the conclusion of the hearing, the undersigned announced, on the record, that the parties would have 10 days from the date of the filing of the hearing transcript with DOAH to file their proposed recommended orders.
The hearing Transcript (consisting of one volume) was filed with DOAH on November 2, 2011.
Respondent and Petitioner timely filed their Proposed Recommended Orders on Monday, November 14, 2011.
Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:
The School Board is responsible for the operation, control, and supervision of all public schools (grades K through
12) in Miami-Dade County, Florida (including, among others, Arch
Creek Elementary School (Arch Creek)), and for otherwise providing public instruction to school-aged children in the county.
At all times material to the instant case, Dr. Marie Bazile was the principal of Arch Creek.
Respondent has been employed as a teacher by the School Board since 2005. She presently holds a professional services contract with the School Board.
Respondent taught at Arch Creek for parts of the 2008- 2009, 2009-2010, and 2010-2011 school years, initially as a third grade teacher (during the first couple of weeks of the 2008-2009 school year) and then as a kindergarten teacher.
As an instructional employee of the School Board, Respondent is a member of a collective bargaining unit represented by the United Teachers of Dade (UTD) and covered by a collective bargaining agreement between the School Board and UTD (UTD Contract).
Article XXI of the UTD Contract addresses the subject of "[e]mployee [r]ights and [d]ue [p]rocess."
Section 1.A.1. of Article XXI provides that "the [School] Board and [UTD] recognize the principle of progressive discipline," that they "agree that disciplinary action may be consistent with the concept of progressive discipline when the [School] Board deems it appropriate," and that "the degree of
discipline shall be reasonably related to the seriousness of the offense."
Section 1.B.1.a. of Article XXI provides that "[a]ny 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."
Section 1.B.2. of Article XXI provides, in part, that "[d]ismissals and suspensions shall be effected in accordance with applicable Florida Statutes, including the Administrative Procedures Act (APA) "
Parental Complaints
During the 2009-2010 school year, several parents complained to Principal Bazile about Respondent's allowing the students in her kindergarten class to "run[] in the street" at dismissal time.3 As a result of receiving these complaints, Principal Bazile "wrote [Respondent] up" and went over with Respondent the dismissal procedures that all classroom teachers at Arch Creek were expected to follow.4
FAIR Training
Also during the 2009-2010 school year, when asked to participate in mandatory FAIR (Florida Assessments for Instruction in Reading) training given by Arch Creek's reading coach, Respondent initially did not acquiesce, but, rather, indicated she first wanted to contact UTD to find out if she
could be made to take this training notwithstanding that she would not be receiving any "master plan points" for her time and effort. After her inquiry was answered in the affirmative by the UTD representative with whom she spoke, she willingly underwent the training.
Bathroom Incident
On November 18, 2010, shortly before the school day was to begin, one of Respondent's fellow kindergarten teachers at Arch Creek, Nancy Kurre, called in sick. There was insufficient time to locate a substitute teacher to cover
Ms. Kurre's class, so the students in her class were reassigned to other kindergarten classes for the day. Marie Beaubien, Arch Creek's kindergarten/first grade "chair," made the reassignments.
Among the reassigned students was F., a boy with behavioral issues who had difficulty remaining in his seat and would constantly wander off, frequently to the bathroom, without Ms. Kurre's permission. F. was reassigned to Respondent's class, much to the displeasure of Respondent, who felt that she was ill-prepared to accommodate F., whom she knew to be a "difficult child," in her classroom.
F. was escorted to Respondent's classroom by Socra Antenor, the school secretary. From the outset, F. was a disruptive influence in the classroom.
At around 8:30 a.m., Ms. Beaubien went to the school office to look for F. after having been told by another kindergarten teacher that F. was not in Respondent's classroom, where he was supposed to be. In fact, although Respondent had decided to remove F. from her classroom and to take him to the office because she did not "want to deal with [him]" and his disruptive behavior, she had not yet done so as a result of her having been preoccupied with other matters, which diverted her attention away from F.
Ms. Antenor was in the office when Ms. Beaubien came by. She told Ms. Beaubien that F. was not there and that he should still be in Respondent's classroom.
Ms. Beaubien then went to Respondent's classroom.
Ms. Antenor followed closely behind her.
When Ms. Beaubien got to Respondent's classroom, she asked Respondent if F. was there. Although F. was not where Respondent had last seen him, nor anywhere else in the instructional space of the classroom, Respondent was confident that he had not exited the classroom. She assumed, given what she knew of F.'s behavioral history in school, that F. had wandered into the classroom's bathroom when her attention was directed elsewhere. It turned out her assumption was correct. When she and Ms. Beaubien went to the bathroom and the door was opened, F. was inside. As F. walked out of the bathroom,
Ms. Beaubien took him by the hand and brought him to the school office.
Ms. Beaubien erroneously thought that she had heard Respondent admit to having "locked" F. in the bathroom. In fact, not only had Respondent not made such a statement, there was no way she could have locked F. in the bathroom inasmuch as the bathroom door could not be locked from the outside. Nonetheless, Ms. Beaubien reported to Principal Bazile that the statement had been made. The School Board's Civil Investigative Unit (CIU) was thereafter notified and a CIU personnel investigation was begun (Bathroom Incident Investigation). A CIU investigative report, containing the following findings, was subsequently prepared, and it received final approval on December 15, 2010:
Based on the information obtained from all parties, Ms. Kiara Higgs is in violation of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties, and there is PROBABLE CAUSE.
Based on the information obtained from all parties, Ms. Kiara Higgs is in violation of School Board Rule 6Gx13-4A-1.213, Code of Ethics, and there is PROBABLE CAUSE.
Outdoor Lunch Detention Incident
December 8, 2010, was an unseasonably cold day in the Miami-Dade County area, but that did not deter at least three of Arch Creek's teachers--Respondent, Edouard St. Hilaire, and Paul
Fabre--from eating their lunch, at around 10:15 a.m. that day, at tables (with benches) in the outdoor patio area just outside the school cafeteria. Mr. Hilaire, who was wearing a jacket, and Mr. Fabre, who was wearing a blazer, were together at the same table, while Respondent, who was wearing a sweater and pants, was seated several tables away.5 With Respondent was a student of hers who was serving a lunch detention she had meted out. The student had on layers of clothing, including a sweat suit top (worn as an outer garment) that (at least to Mr. Fabre, from his vantage point6) looked like a blouse,7 under which were shirts of some kind.8 Both Mr. Hilaire and Mr. Fabre believed that it was too cold for the student to be eating outdoors, and they so advised Respondent and suggested to her that she send the student inside, back into the cafeteria. To allay her colleagues' concerns, Respondent followed their suggestion, notwithstanding her belief (which has not been shown to be unreasonable) that their concerns were unfounded and that the student was indeed dressed warmly enough to be outside.9
Mr. St. Hilaire reported the incident to Principal Bazile because he thought that Respondent had done something that was "not proper." The CIU was thereafter notified and a CIU personnel investigation was begun (Lunch Detention Incident Investigation). A CIU investigative report, containing the
following findings, was subsequently prepared, and it received final approval on January 12, 2011:
Based on the information obtained from all parties, Ms. Kiara Higgs is in violation of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties, and there is PROBABLE CAUSE.
Based on the information obtained from all parties, Ms. Kiara Higgs is in violation of School Board Rule 6Gx13-4A-1.213, Code of Ethics, and there is PROBABLE CAUSE.
False 911 Call
Paul Greenfield is a Region Administrative Director with the School Board. On the Friday before the start of the 2010-2011 school year winter recess, Mr. Greenfield met with Respondent at the School Board's regional office in Hialeah to formally notify her of the Lunch Detention Incident Investigation and to have her sign paperwork that would enable her to get paid during the winter recess.
Respondent was in a foul mood at the time of the meeting. She was already upset that, despite her sincere protestations of innocence, the Bathroom Incident Investigation had resulted in findings of probable cause. Being informed by Mr. Greenfield that she was the subject of another CIU personnel investigation did nothing to improve Respondent's mood. Rather, it made her even more upset and prompted her to tell
Mr. Greenfield that she did not feel well and wanted to leave.
Mr. Greenfield responded by requesting that Respondent stay so that she could fill out paperwork that would "facilitate [her] getting paid." Respondent, in a very agitated tone of voice, expressed her unwillingness to comply with Mr. Greenfield's request. Mr. Greenfield then said to her, "Ms. Higgs, if you would just wait a few more minutes, but it's certainly up to you. I'm not going to hold you." Respondent's reaction was to call 911 on her cell phone and falsely report that she was being held against her will by her employer at the Hialeah regional office, knowing full well that this was not true and that, as Mr. Greenfield had made clear to her, she was free to leave if she so chose.
Indeed, immediately after placing the call, Respondent did walk away from Mr. Greenfield. She did not go very far, however. After turning the corner in the hallway, she wound up on the hallway floor. Fire rescue personnel were summoned to the scene. They examined Respondent. Finding that Respondent did not need any further medical attention, they cleared her to leave. Respondent then left the building.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter of this proceeding and of the parties hereto pursuant to chapter 120.
"In accordance with the provisions of s. 4(b) of Art.
IX of the State Constitution, district school boards [have the
authority to] 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." § 1001.32(2).
Such authority extends to personnel matters and includes the power to suspend and dismiss employees and to "adopt rules governing personnel matters." See §§ 1001.42(5), 1012.22(1)(f), and 1012.23(1).
The "rules governing personnel matters" that have been adopted by the School Board include School Board Rules 6Gx13-4A-
1.21 (dealing with "[r]esponsibilities and [d]uties") and 6Gx13-
1.213 (which prescribes a "Code of Ethics" for School Board personnel).
At all times material to the instant case, School Board Rule 6Gx13-4A-1.21I and V have 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 presence of students is expressly prohibited.
* * *
V. Instructional Personnel
Members of the instructional staff, subject to the rules of the State and District Rules, shall teach efficiently and faithfully, using the books and materials required, following the prescribed courses of study, and employing approved methods of instruction as provided by law and by the rules of the State Department of Education.
Members of the instructional staff shall keep abreast of development in their subject area through attendance at professional meetings, acquaintance with professional publications, and participation in inservices activities.
At all times material to the instant case, School Board Rule 6Gx13-4A-1.213 has provided, in pertinent part, as follows:
Permanent Personnel
CODE OF ETHICS
INTRODUCTION
All . . . teachers . . . , because of their dual roles as public servants and educators are to be bound by the following Code of Ethics. Adherence to the Code of Ethics will create an environment of honesty and integrity and will aid in achieving the common mission of providing a safe and high quality education to all Miami-Dade County Public School students.
As stated in the Code of Ethics of the Education Profession in Florida (State Board of Education Rule 6B-1.001):
The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, and the nurture of a 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.
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, students, parents, and other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.
* * *
III. FUNDAMENTAL PRINCIPLES
The fundamental principles upon which this Code of Ethics is predicated are as follows:
* * *
Cooperation – Working together toward goals as basic as human survival in an increasingly interdependent world.
Fairness – Treating people impartially, not playing favorites, being open minded, and maintaining an objective attitude toward those whose actions and ideas are different from our own.
Honesty – Dealing truthfully with people, being sincere, not deceiving them nor stealing from them, not cheating nor lying.
Integrity – Standing up for your beliefs about what is right and what is wrong and resisting social pressure to do wrong.
Kindness – Being sympathetic, helpful, compassionate, benevolent, agreeable, and gentle toward people and other living things.
Pursuit of Excellence – Doing your best with the talents you have, striving toward a goal, and not giving up.
Respect – Showing regard for the worth and dignity of someone or something, being courteous and polite, and judging all people on their merits. It takes three major forms: respect for oneself, respect of other people, and respect for all forms of life and the environment.
Responsibility – Thinking before you act and being accountable for your
actions . . . .
Each employee agrees and pledges:
To abide by this Code of Ethics, making the well-being of the students and the honest performance of professional duties core guiding principles.
To obey local, state and national laws, codes and regulations.
To support the principles of due process to protect the civil and human rights of all individuals.
To treat all persons with respect and to strive to be fair in all matters.
To take responsibility and be accountable for his or her actions.
To avoid conflict of interest or any appearance of impropriety.
To cooperate with others to protect and advance the District and its students.
To be efficient and effective in the delivery of job duties.
* * *
CONDUCT REGARDING STUDENTS As set forth in the Principles of
Professional Conduct for the Education Profession in Florida, each employee:
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.
* * *
5.. Shall not intentionally expose a student to unnecessary embarrassment or disparagement.
6. Shall not intentionally violate or deny a student's legal rights. [10]
A district school board is deemed to be the "public employer," as that term is used in chapter 447, Part II, "with respect to all employees of the school district." § 447.203(2). As such, it has the right "to direct its employees, take disciplinary action for proper cause, and relieve its employees from duty because of lack of work or for other legitimate
reasons," provided it exercises these powers in a manner that is consistent with the requirements of law. § 447.209.
At all times material to the instant case, district school boards have had the right, under section 1012.33(6)(a), to suspend or dismiss, for "just cause," classroom teachers and other instructional personnel11 having professional service contracts.
At all times material to the instant case, "just cause," as used section 1012.33, has been legislatively defined (in subsection (1)(a) of the statute) to include, "but . . . not [be] 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." The "but . . . not limited to" language makes abundantly clear that the list of things constituting "just cause" was intended by the Legislature to be non-exclusive and that other wrongdoing may also constitute "just cause" for suspension or dismissal, provided such wrongdoing is at least of the same seriousness or magnitude as those misdeeds specifically mentioned in the statute. See Dietz v. Lee Cnty. Sch. Bd., 647 So. 2d 217, 218-19 (Fla. 2d DCA 1994)(Blue, J., specially concurring)("We assume that drunkenness and immorality, which
are not included in the non-exclusive list of sins [set forth in section 231.36(1)(a), Florida Statutes (2001), the predecessor of section 1012.33(1)(a)] constituting just cause,[12] would also be grounds for dismissal. . . . In amending section 231.36 and creating a new contract status for teachers (professional service) and by failing to further define just cause, the legislature gave school boards broad discretion to determine when a teacher may be dismissed during the contract term. . . .
I agree with the majority--that the legislature left that determination to the respective wisdom of each school board by providing no definite parameters to the term 'just cause.'"); and Miami-Dade Cnty. Sch. Bd. v. Singleton, Case No. 07-0559, 2006 Fla. Div. Adm. Hear. LEXIS 614 *51 (Fla. DOAH Oct. 26,
2006; Miami-Dade Cnty. Sch. Bd. Aug. 10, 2007)("Neither offense is specifically mentioned in [s]ection 1012.33(1)(a), Florida Statutes, as an example of 'just cause,' although the statutory list of such instances, as we have seen, is not intended to be exclusive. Yet, the doctrine of ejusdem generis, requires
that for 'just cause' to be found based upon an unexemplary instance, the unexemplary instance must bear a close affinity to one of the exemplary instances."); see also Pro-Art Dental Lab, Inc. v. V-Strategic Grp., LLC, 986 So. 2d 1244, 1257 (Fla. 2008) ("[T]he term 'including' is not one of all-embracing definition, but connotes simply an illustrative application of the general
principle."); and Peninsular Indus. Ins. Co. v. State, 61 Fla. 376, 380-381 (Fla. 1911)("From these statutory provisions it is clear that the obligation to pay the two per cent tax upon gross receipts is placed upon 'each insurance company, or association, firm or individual doing business in this State, including' some that are specially enumerated; but such enumeration manifestly is not complete for the less extensive word 'including' is used merely as illustrative and not exclusive.").
"Misconduct in office" has been defined "by rule of the State Board of Education" (specifically Florida Administrative Code Rule 6B-4.009(3)13) 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.
The Code of Ethics of the Education Profession (as set forth in Florida Administrative Code Rule 6B-1.001) provides as follows:
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.
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, which contains the Principles of Professional Conduct for the Education Profession in Florida, provides, in pertinent part, as follows:
The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.
Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator's certificate, or the other penalties as provided by law.
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.
* * *
Shall not intentionally expose a student to unnecessary embarrassment or disparagement.
Shall not intentionally violate or deny a student's legal rights.[14]
As was stated in Miami-Dade Cnty. Sch. Bd. v. Brenes, Case No. 06-1758, 2007 Fla. Div. Adm. Hear. LEXIS 122 n. 12
**42-43 (Fla. DOAH Feb. 27, 2007; Miami-Dade Cnty. Sch. Bd. Apr. 25, 2007):
Rule [6B-4.009(3)] plainly requires that a violation of both the Ethics Code and the Principles of Professional Education be shown, not merely a violation of one or the other. The precepts set forth in the Ethics Code, however, are so general and so obviously aspirational as to be of little practical use in defining normative behavior. It is one thing to say, for example, that teachers must "strive for professional growth." See Fla. Admin. Code
R. 6B-1.001(2). It is quite another to define the behavior which constitutes such striving in a way that puts teachers on notice concerning what conduct is forbidden. The Principles of Professional Conduct accomplish the latter goal, enumerating specific "dos" and "don'ts." Thus, it is concluded that that while any violation of one of the Principles would also be a violation of the Code of Ethics, the converse is not true. Put another way, in order to punish a teacher for misconduct in office, it is necessary but not sufficient that a violation of a broad ideal articulated in the Ethics Code be proved, whereas it is both necessary and sufficient that a violation of a specific rule in the Principles of Professional Conduct be proved. It is the necessary and sufficient condition to which the text refers.
"Misconduct in office" may be established in the absence of "specific" or "independent" evidence of impairment,
but only where the conduct engaged in by the teacher is of such a nature that it "speaks for itself" in terms of its seriousness and its adverse impact on the teacher's service and effectiveness. In such cases, proof that the teacher engaged in the conduct is also proof of impaired effectiveness. See Purvis v. Marion Cnty. Sch. Bd., 766 So. 2d 492, 498 (Fla. 5th DCA 2000); Walker v. Highlands Cnty. Sch. Bd., 752 So. 2d 127, 128-
29 (Fla. 2d DCA 2000); and Summers v. Sch. Bd. of Marion Cnty., 666 So. 2d 175, 175-76 (Fla. 5th DCA 1995).
"[U]nder Florida law, a [district] school board's decision to [suspend or] terminate an employee is one affecting the employee's substantial interests; therefore, the employee is entitled to a formal hearing under section 120.57(1) if material issues of fact are in dispute."15 McIntyre v. Seminole Cnty. Sch. Bd., 779 So. 2d 639, 641 (Fla. 5th DCA 2001).
Pursuant to section 1012.33(6)(a), the hearing may be conducted, "at the district school board's election," either by the district school board itself or by a DOAH administrative law judge (who, following the hearing, makes a recommendation to the district school board).
The teacher must be given written notice of the specific charges prior to the hearing. See Schimenti v. Sch. Bd. of Hernando Cnty., Case No. 5D10-3694, 2011 Fla. App. LEXIS 17206 **2-3 (Fla. 5th DCA. Oct. 28, 2011) ("When a school board
brings a proceeding to discharge a teacher from her employment, the teacher must have fair notice and an opportunity to be heard on each of the charges against her."). Although the notice "need not be set forth with the technical nicety or formal exactness required of pleadings in court," it should "specify the [statute,] rule, [regulation, or policy] the [district school board] alleges has been violated and the conduct which occasioned [said] violation." Jacker v. Sch. Bd. of Dade Cnty., 426 So. 2d 1149, 1151 (Fla. 3d DCA 1983)(Jorgenson, J.,
concurring). The teacher may be suspended, without pay, pending the outcome of the proceeding; "but, if the charges are not sustained, the employee shall be immediately reinstated, and his or her back salary shall be paid." § 1012.33(6)(a).
At the hearing, the burden is on the district school board to prove the allegations contained in the notice. The district school board's proof need only meet the preponderance of the evidence standard. See Cisneros v. Sch. Bd. of Miami- Dade Cnty., 990 So. 2d 1179, 1183 (Fla. 3d DCA 2008)("As the ALJ properly found, the School Board had the burden of proving the allegations of moral turpitude by a preponderance of the evidence."); McNeill v. Pinellas Cnty. Sch. Bd., 678 So. 2d 476,
477 (Fla. 2d DCA 1996)("The School Board bears the burden of proving, by a preponderance of the evidence, each element of the charged offense which may warrant dismissal."); Sublett v.
Sumter Cnty. Sch. Bd., 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995)("We agree with the hearing officer that for the School Board to demonstrate just cause for termination, it must prove by a preponderance of the evidence, as required by law, that the allegations of sexual misconduct were true . . . ."); Allen v.
Sch. Bd. of Dade Cnty., 571 So. 2d 568, 569 (Fla. 3d DCA 1990)("We . . . find that the hearing officer and the School Board correctly determined that the appropriate standard of proof in dismissal proceedings was a preponderance of the evidence. . . . The instant case does not involve the loss of a license and, therefore, Allen's losses are adequately protected by the preponderance of the evidence standard."); and Dileo v.
Sch. Bd. of Dade Cnty., 569 So. 2d 883, 884 (Fla. 3d DCA 1990)("We disagree that the required quantum of proof in a teacher dismissal case is clear and convincing evidence, and hold that the record contains competent and substantial evidence to support both charges by a preponderance of the evidence standard."). This burden "is not satisfied by proof creating an equipoise, but it does not require proof beyond a reasonable doubt." Dep't of HRS v. Career Serv. Comm'n, 289 So. 2d 412,
415 (Fla. 4th DCA 1974).
In determining whether the district school board has met its burden of proof, it is necessary to evaluate its evidentiary presentation in light of the specific allegation(s)
made in the written notice of charges. Due process prohibits a district school board from disciplining a teacher based on matters not specifically alleged in the notice of charges. See Pilla v. Sch. Bd. of Dade Cnty., 655 So. 2d 1312, 1314 (Fla. 3d DCA 1995); and Texton v. Hancock, 359 So. 2d 895, 897 n.2 (Fla. 1st DCA 1978); see also Sternberg v. Dep't of Prof'l Reg., 465 So. 2d 1324, 1325 (Fla. 1st DCA 1985)("For the hearing officer and the Board to have then found Dr. Sternberg guilty of an offense with which he was not charged was to deny him due process.").
In the instant case, the Notice of Specific Charges alleges that "just cause" exists to dismiss Respondent from her teaching position for "misconduct in office," as described in Florida Administrative Code Rule 6B-4.009(3), and violation of School Board Rules 6Gx13-4A-1.21 and 6Gx13-4A-1.213 based on her having "ignored her students and permitted them to 'run wild' during dismissal time" in November 2009 (Alleged Factual Basis 1); her having "refused to adhere to an administrative directive that she participate in a training session related to her employment" in January 2010 (Alleged Factual Basis 2); her having "locked" a student in the bathroom on November 18, 2010 (Alleged Factual Basis 3); her having "sent one of her kindergarten students [who was not dressed warmly enough] to eat outside as a form of punishment" on December 8, 2011 (Alleged
Factual Basis 4); and her having called 911 and falsely claimed she was being held against her will at the regional office in December 2010 (Alleged Factual Basis 5).
The School Board failed to prove all but one of these Alleged Factual Bases.
With respect to Alleged Factual Basis 1, the record evidence establishes that, during the 2009-2010 school year, there were parental complaints that Respondent "ignored her students and permitted them to 'run wild' during dismissal time"; however, the proof submitted (which did not include the testimony of any of the complaining parents) is insufficient to demonstrate that these complaints had any basis in fact.
With respect to Alleged Factual Basis 2, the preponderance of the record evidence affirmatively establishes that Respondent, in fact, did participate in the subject training (albeit, after first consulting with a UTD representative to ascertain whether she could be made to do so by the School Board).
With respect to Alleged Factual Basis 3, while the student in question was found in the bathroom of Respondent's classroom, the record evidence does not establish that Respondent had placed him there, much less "locked" the door with him inside.
With respect to Alleged Factual Basis 4, the record evidence establishes that Respondent had a student serve outdoor lunch detention on the day in question, but not that the student was inappropriately dressed for the weather.
Of the Alleged Factual Bases set forth in the Notice of Specific Charges, only Alleged Factual Basis 5 was supported by an adequate evidentiary showing at hearing. The preponderance of the record evidence establishes that Respondent did indeed make the false 911 call alleged in the Notice. This was no minor indiscretion on Respondent's part. Not only was it an unseemly, dishonest, and irresponsible act casting serious doubt on Respondent's judgment, integrity, and trustworthiness and placing the school system in a bad light, it was, contrary to the assertion made by Respondent in her Proposed Recommended Order, "criminal." See § 365.172(13)("Any person who accesses the number 911 for the purpose of making a false alarm or complaint or reporting false information that could result in the emergency response of any public safety agency . . . commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.").
In engaging in such conduct, Respondent violated School Board Rules 6Gx13-4A-1.21 and 6Gx13-4A-1.213, as alleged in Counts II and III of the Notice (but not the specific Principles of Professional Conduct for the Education Profession
in Florida set forth in Count I of the Notice, to wit: those described in Florida Administrative Code Rule 6B-1.006(3)(a), (e), and (f)16). These proven violations of the School Board's rules are of such seriousness as to constitute "just cause," as that term is used in section 1012.33.
Although the School Board thus has "just cause" to terminate Respondent's employment, it may instead, in its discretion, choose to suspend her, without pay, based on this same "just cause." Cf. Dep't of Pollution Control v. Career
Serv. Comm'n, 320 So. 2d 846, 848 (Fla. 1st DCA 1975)("Thus it appears that the grounds for suspension and for dismissal are identical in that either must be for just cause. The rules do not provide a criteria for distinguishing between when an agency must suspend an employee rather than dismiss the employee. It appears therefore that sole discretion to determine whether the employee is to be dismissed or suspended is vested in the agency, the only limitation being that the disciplinary action must be for just cause."). Given Respondent's emotional state at the time she made the 911 call (which is a mitigating circumstance), the undersigned recommends that the School Board exercise this discretion and impose a suspension, without pay, effective until the end of the current school year, in lieu of dismissal.
RECOMMENDED that the Miami-Dade County School Board issue a final order finding that there is "just cause" to suspend or dismiss Respondent on, and only on, the charge, made in Counts II and III of the Notice of Specific Charges, that in
December 2010, she violated School Board Rules 6Gx13-4A-1.21 and 6Gx13-4A-1.213 by making a 911 call falsely claiming that she was being held against her will at the at School Board's regional office in Hialeah, and, based on such finding, suspending her, without pay, until the end of the regular 2011- 2012 school year.
DONE AND ENTERED this 18th day of November, 2011, in Tallahassee, Leon County, Florida.
STUART M. LERNER
Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 2011.
1 Unless otherwise noted, all references in this Recommended Order to Florida Statutes are to Florida Statutes (2011).
2 The hearing was originally scheduled for August 16, 2011, the earliest date that, according the Joint Response to Initial Order, both parties were available for hearing. The August 16, 2011, hearing was continued at Respondent's request.
3 None of these complaining parents testified at the hearing in the instant case.
4 There is no evidence that, at any time thereafter, Respondent failed to follow the dismissal procedures that Principal Bazile had gone over with her.
5 No further details concerning the clothing Mr. St Hilaire, Mr. Fabre, and Respondent were wearing that day can be gleaned from the record evidence.
6 Mr. Fabre testified that he "just saw the child from [his] peripheral vision" and was not even able to tell, from where he was positioned, whether the student was a boy or girl.
7 Mr. St. Hilaire, on the other hand, "didn't see [the student wearing] any blouse" (although he did observe that the student had "no sweater or no jacket" on).
8 This finding is based on Respondent's testimony, which the undersigned has credited.
9 The record contains no evidence that the student was experiencing any temperature-related discomfort (although there is testimony that the student did express a desire to rejoin the other students in the cafeteria).
1.213 set out above are those that were recited in the Notice of Specific Charges.
11 Pursuant to section 1012.01(2), the term "instructional personnel," as used in section 1012.33, includes "classroom teachers."
12 "Immorality" was added to the "non-exclusive list of sins" in section 1012.33(1)(a) by section 28 of chapter 2008-108, Laws of Florida, effective July 1, 2008.
13 Florida Administrative Code Rule 6B-4.009 "define[s]" the "basis for charges upon which dismissal action against instructional personnel may be pursued."
14 These are the only "principles" Respondent is alleged, in the Administrative Complaint, to have violated.
15 "A county school board is a state agency falling within [c]hapter 120 for purposes of quasi-judicial administrative orders." Sublett v. Dist. Sch. Bd. of Sumter Cnty., 617 So. 2d 374, 377 (Fla. 5th DCA 1993); see also Sch. Bd. of Palm Beach Cnty. v. Survivors Charter Sch., Inc., 3 So. 3d 1220, 1231 (Fla. 2009)("No one disputes that a school board is an 'agency' as that term is defined in the APA."); Volusia Cnty. Sch. Bd. v. Volusia Homes Builders Ass'n, 946 So. 2d 1084, 1089 (Fla. 5th DCA 2006)("[T]he School Board is an agency subject to the Administrative Procedure Act."); and Witgenstein v. Sch. Bd. of Leon Cnty., 347 So. 2d 1069, 1071 (Fla. 1st DCA 1977)("It was obviously the legislative intent to include local school districts within the operation of [c]hapter 120.").
16 Given the School Board's failure to have shown that Respondent violated these specifically alleged Principles of Professional Conduct for the Education Profession in Florida, there can be no finding of "misconduct in office," as defined in Florida Administrative Code Rule 6B-4.009(3), in the instant case.
Arianne B. Suarez, Esquire Miami-Dade County School Board
Mark S. Herdman, Esquire Herdman and Sakellarides, P.A.
29605 U.S. Highway 19 North, Suite 110
Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue
Gerard Robinson, Commissioner Department of Education Turlington Building, Suite 1514
Charles M. Beal, General Counsel Department of Education Turlington Building, Suite 1244
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.
