STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. )

)

THELMA MOBLEY, )

)

Respondent. )

Case No. 12-1852TTS

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case pursuant to sections 120.569 and 120.57(1), Florida Statutes (2012), before Cathy M. Sellers, an Administrative Law Judge of the Division of Administrative Hearings, on December 3, 2012, by video teleconference at sites in Miami and Tallahassee, Florida.

APPEARANCES

For Petitioner: Christopher J. LaPiano, Esquire

Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Mark Herdman, Esquire

Herdman and Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761 STATEMENT OF THE ISSUE

The issue in this case is whether just cause exists for Petitioner to suspend Respondent without pay from her employment as a teacher for 30 work days.

PRELIMINARY STATEMENT

On May 16, 2012, Petitioner, Miami-Dade County School Board, took action against Respondent, Thelma Mobley, to suspend her without pay for 30 work days from her from employment as a teacher with Miami-Dade County Public Schools. Respondent timely requested an administrative hearing pursuant to sections

120.569 and 120.57(1), and the matter was referred to the Division of Administrative Hearings for assignment of an Administrative Law Judge and conduct of a hearing.

The final hearing initially was scheduled for August 29, 2012. Pursuant to Petitioner's unopposed motions, the hearing was first rescheduled to October 24, 2012, then to December 3,

2012.

The final hearing was held on December 3, 2012. Petitioner

presented the testimony of George Coakley, D.M., Yaset Fernandez, and Robin Morrison. Petitioner's Exhibits 1 through

6 and 9 through 141/ were admitted into evidence pursuant to the parties' stipulation. Respondent testified on her own behalf and did not offer any exhibits for admission into evidence.

The one-volume Transcript was filed with the Division of Administrative Hearings on February 1, 2013. The parties timely filed their Proposed Recommended Orders on February 12, 2013.

Both were considered in preparing this Recommended Order.

FINDINGS OF FACT

1. The Parties

   
   

   1. Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida, pursuant to Florida Constitution Article IX, section 4(b), and section 1012.23, Florida Statutes.

   2. At all times material to this proceeding, Respondent was a teacher of emotionally/behaviorally disturbed ("E/BD") students at Jose de Diego Middle School, a middle school within the Miami-Dade County Public Schools.

   3. At all times material to this proceeding, Respondent's employment with Petitioner was governed by the collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade, Petitioner's policies and rules, and Florida law.

2. Background

   
   

   1. The incident giving rise to this proceeding occurred on or about January 12, 2012. On that day, three male students in Respondent's class engaged in play fighting and video-recorded their actions on cell phones and an MP-3 recording device.

   2. As a result, Mr. Fernandez, the principal of Jose de Diego Middle School, determined that Respondent did not follow

      
      

      established policies and procedures in stopping or attempting to stop the play fighting, and that her failure to do so endangered the safety of the students involved. Accordingly, he recommended that she be suspended from her employment for 30 work days without pay.

   3. On May 16, 2012, Petitioner suspended Respondent from her employment for 30 work days without pay.

3. Incident Giving Rise to Charge

1. The incident giving rise to this proceeding occurred during the last instructional block of the day, while the students were engaged in language arts and reading.

2. There were a total of eight or nine students in Respondent's classroom, and they were divided into two groups, consisting of four or five students each, for reading exercises. They were situated in the back of the classroom where they had access to computer terminals. Respondent and a paraprofessional, Ms. Larkin, were also situated in the back of the classroom, working with the students.

3. During this instructional time, Respondent received three separate calls on the classroom telephone from her department head asking about paperwork on one of Respondent's students. The classroom phone is located in the front of the classroom. Each of these calls took Respondent away from her teaching and supervision of the students.

   
   

4. Ms. Larkin continued to supervise the groups, but then excused herself to use the restroom. This left the students at least momentarily unsupervised.

5. At this time, three male students, instigated by one student, began to play fight. The persuasive evidence indicates that the students engaged in three separate incidents of play fighting over a period of time lasting several minutes. The other students in the class looked on and did not engage in play fighting.

6. Respondent credibly testified that as soon as she saw what was happening, she immediately hung up the phone and went to the back of the classroom to stop the play fighting, yelling at the students to stop and threatening to write disciplinary referrals to the office; however, they ignored her. Her testimony was closely corroborated by that of D.M., one of the students engaged in the play fighting. D.M. credibly testified that Respondent repeatedly attempted to get the students to stop by yelling at them and threatening to write referrals, but they ignored her. They continued to play fight and recorded the play fighting on two cell phones and an MP-3 device with the stated intention of posting the videos on Facebook, YouTube, and Twitter.

7. Once Respondent saw that the students would not stop, she stepped into the hall to see if a security monitor was on

   
   

   the first floor, where her classroom was located. Seeing none, she called George Coakley, the Dean of Students, to come to her classroom.

8. An emergency button is located in each classroom.

   
   

   This button transmits a call to the main office, which is responsible for responding to the call. Respondent did not use the emergency button to call for assistance because, in her experience, such calls often are not answered.

9. Respondent used the classroom phone to call

   
   

   Mr. Coakley's cell phone. Mr. Coakley had given her and other teachers his cell phone number to, among other things, be used in such situations. At the time of Respondent's call,

   Mr. Coakley was involved with another matter, and said he would be there as soon as he was finished with that matter. He and Respondent both estimated it took approximately five minutes for him to arrive at Respondent's classroom. At that time, the students disengaged and ran to sit down as he entered the classroom.

10. Before Mr. Coakley's arrival, Respondent wrote referrals on all of the students involved in the play fighting. These referrals were turned over to the main office for disciplinary purposes.

11. Mr. Coakley took the students involved in the play fighting from Respondent's classroom to the main office and

    
    

    turned them over to Principal Fernandez, who confiscated the phones and MP-3 device and ultimately suspended the students from school.

12. The persuasive evidence establishes that there were three separate videos of three discrete episodes of play fighting taken on three separate recording devices.2/ In one of the videos, Respondent and Ms. Larkin are seen sitting at the desk in the front of the classroom while the play fighting is taking place in the back of the classroom.3/

13. It is undisputed that the videos depict only a portion of the entire incident. The persuasive evidence establishes that Respondent first made efforts, not captured on the videos, to get the students to stop play fighting. Those efforts consisted of going to the back of the room and yelling at the students to stop fighting, then threatening to write and writing disciplinary referrals. She took these actions before looking for a security monitor, then calling Mr. Coakley and awaiting his arrival.

14. Based on the video, Principal Fernandez concluded that Respondent's efforts to stop the play fighting did not conform to the E/BD Crisis Plan Jose de Diego Middle School 2011/2012 ("Crisis Management Plan") protocol applicable to student fights.

    
    

15. The Crisis Management Plan requires, in pertinent part, that the teacher immediately contact security via emergency call button, the school administrator, and nearby staff. Principal Fernandez determined that Respondent did not comply with this requirement because she did not use the emergency call button to summon school security to her classroom. However, the persuasive evidence establishes that Respondent did contact school administration——specifically,

    Mr. Coakley——as soon as she determined that she was unable to get the students to stop the play fighting. Respondent credibly testified that she contacted Mr. Coakley directly instead of using the call button specifically because, in her experience, school security often did not respond to the emergency call button.

16. The Crisis Management Plan also requires the teacher to "separate and isolate" students involved. It does not specifically describe how this should or must be done. Respondent testified that she repeatedly attempted to get the students to stop play fighting by going to the back of the room where they were located, yelling at them to stop, and threatening to write referrals on them. Principal Fernandez testified that Respondent should have said "stop"——which Respondent did. He also testified that she should have "separated and isolated" the students but he did not articulate

    
    

    any specific means that Respondent should have employed short of physically intervening to break up the play fights——an action that arguably may itself have violated Petitioner's corporal punishment policies or may have resulted in Respondent herself being physically injured.

17. Robin Morrison, an Instructional Supervisor with Petitioner's Division of Special Education, testified that Respondent could have used "proximity control" to separate the students, and that in her opinion, based on her viewing of the videos, Respondent did not do this and therefore did not respond appropriately in trying to break up the play fighting. However, as previously discussed, the videos do not depict the entire incident. Thus, Ms. Morrison's testimony is deemed unpersuasive. The persuasive evidence establishes that Respondent did go to the back of the room where the play fighting was occurring and attempted to get the students to stop. Only after it became apparent that they would not comply did she go to the front of the room, where she looked down the hallway to see if a security monitor was immediately available, then called Mr. Coakley on the classroom phone.

    
    

    1. Findings of Ultimate Fact

       
       

       1. Misconduct in Office

          
          

18. Petitioner has charged Respondent with committing misconduct in office. Misconduct in office is defined in Florida Administrative Code Rule 6A-5.056(3)4/ as:

    1. 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.

       
       

19. The Code of Ethics of the Education Profession in Florida, rule 6B-1.001, provides:

    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 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.

    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 community, the educator strives to achieve and sustain the highest degree of ethical conduct.

    
    

20. The Principles of Professional Conduct for the Education Profession in Florida, rule 6B-1.006, provides in pertinent part:

    1. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.

    2. 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.

    3. 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.

    
    

    * * *

    
    

21. The greater weight of the evidence establishes that Respondent made reasonable efforts to protect the students in her classroom from conditions harmful to learning and to their mental and physical health and safety. As addressed above, the persuasive evidence establishes that instead of doing nothing—— as the incomplete video record of the incident appears to depict——Respondent did, in fact, immediately attempt to stop the students from play fighting by going to the back of the room where they were located, ordering them to stop, and threatening to subject them to disciplinary action by referring them to the office. When it became apparent the students were not going to stop despite these measures, Respondent went to the front of the

    
    

    room and looked to see if a security monitor was immediately available. Seeing none, and based on her prior experience of emergency calls going unanswered, she elected to call the Dean of Students, who had given his cell phone number to her and to other teachers specifically for such use. Accordingly, it is determined, as a matter of ultimate fact, that Respondent did not violate rules 6B-1.006 or 6B-1.001, and, therefore, did not commit misconduct in office in violation of rule 6A-5.056(3).

    1. Policy 3210 - Standards of Ethical Conduct

       
       

22. School Board Policy 3210, Standards of Ethical Conduct, provides in relevant part:

    All employees are representatives of the District and shall conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system.

    
    

    A. An instructional staff member shall:

    
    

    * * *

    
    

    3. make a 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[.]

    
    

    * * *

    
    

23. As previously discussed, Respondent's actions in attempting to break up the play fighting and contacting the school administration constituted reasonable effort to protect her students from conditions harmful to learning and to their

    
    

    mental health and physical health and safety. Petitioner's sole evidence that Respondent sat by and did nothing consists of an incomplete video record of the incident that was contradicted by the persuasive, consistent testimony of Respondent and D.M., who were present when the incident occurred. Accordingly, it is determined that Respondent did not violate School Board Policy 3210.

    1. Policy 3210.01 - Code of Ethics

    
    

24. School Board Policy 3210.01, Code of Ethics, provides in pertinent part:

    All members of the School Board, administrators, teachers and all other employees of the District, regardless of their position, 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 District students.

    
    

    As stated in the Code of Ethics of the Education Profession in Florida (State Board of Education F.A.C. 6B-1.001):

    
    

    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, students, parents, and other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.

    
    

    * * * Fundamental Principles

    The fundamental principles upon which this Code of Ethics is predicated are as follows:

    
    

    * * *

    
    

    F. Kindness – Being sympathetic, helpful, compassionate, benevolent, agreeable, and gentle toward people and other living things.

    
    

    * * *

    
    

    1. 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 (3) major forms: respect for oneself, respect for other people, and respect for all forms of life and the environment.

       
       

    2. Responsibility – Thinking before acting and being accountable for their actions, paying attention to others and responding to their needs. Responsibility emphasizes our positive obligations to care for each other.

    
    

    Each employee agrees and pledges:

    
    

    1. To abide by this Code of Ethics, making the well-being of the students and the

       
       

       honest performance of professional duties core guiding principles.

       
       

    2. To obey local, State, and national laws, codes and regulations.

       
       

    3. To support the principles of due process to protect civil and human rights of all individuals.

       
       

    4. To treat all persons with respect and to strive to be fair in all matters.

       
       

    5. To take responsibility and be accountable for his/her actions.

       
       

    6. To avoid conflicts of interest or any appearance of impropriety.

       
       

    7. To cooperate with others to protect and advance the District and its students.

       
       

    8. To be efficient and effective in the performance of job duties.

    
    

    Conduct Regarding Students Each employee:

    A. 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[.]

    
    

25. Petitioner did not prove that Respondent violated Policy 3210.01. The persuasive evidence establishes that Respondent immediately responded to the play fighting by going to the back of the room and attempting to get the students to stop by yelling at them and threatening disciplinary action through office referrals. When these measures were not successful, Respondent followed proper protocol by expeditiously

    
    

    contacting the school administration regarding the matter. As previously discussed, Respondent's conduct did not violate Rule 6B-1.001, the Code of Ethics of the Education Profession in Florida, or the pertinent Fundamental Principles set forth in Policy 3210.01. Also as previously discussed, Respondent's conduct constituted a reasonable effort to protect her students from conditions harmful to their learning and to their mental and physical health and safety. For these reasons, it is determined that Respondent did not violate Policy 3210.01, Petitioner's Code of Ethics.

26. Accordingly, there is no just cause, as required by subsections 1012.33(1)(a) and (6),5/ for Petitioner to suspend Respondent from her employment as a teacher for 30 work days.

    CONCLUSIONS OF LAW

    
    

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

28. This is a disciplinary proceeding brought pursuant to subsections 1012.33(1)(a) and (6)(a), Florida Statutes, and Florida Administrative Code Rules 6B-1.001 and 6B-1.006, and 6A- 5.056, to suspend Respondent from her employment as a teacher for 30 work days without pay. These statutes and rules are penal and therefore must be strictly construed, with ambiguities

    
    

    resolved in favor of the person charged with violating them. Lester v. Dep't of Prof'l & Occ. Reg., 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

29. Respondent is an instructional employee as defined by section 1012.01(2). Petitioner has the authority to suspend or terminate instructional employees pursuant to subsections 1012.22(1)(f) and 1012.33(1)(a) and (6)(a), but to do so, Petitioner must prove, by a preponderance of the evidence, that Respondent committed the alleged violations, and that such violations constitute cause for dismissal. McNeill v. Pinellas

    Cnty. Sch. Bd., 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Dileo v. Sch. Bd. of Dade Cnty., 569 So. 2d 883 (Fla. 3d DCA 1990).

30. Whether Respondent committed the charged offenses is a question of ultimate fact to be determined by the trier of fact in the context of each alleged violation. McKinney v. Castor,

    66 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995).

31. Subsections 1012.33(1)(a) and (6)(a) provide that a member of the instructional staff may be dismissed during the term of his or her employment contract only for just cause. "Just cause" is defined in pertinent part to include "misconduct in office." § 1012.33(1)(a), Fla. Stat.

32. For the reasons set forth above, Respondent did not commit "misconduct in office" as defined in rule 6A-5.056.

    
    

33. For the reasons set forth above, Respondent did not violate the Code of Ethics of the Education Profession in Florida, rule 6B-1.001.

34. For the reasons set forth above, Respondent did not violate the Principles of Professional Conduct for the Education Profession in Florida, rule 6B-1.006.

35. For the reasons set forth above, Respondent did not violate School Board Policy 3210, Standards of Ethical Conduct.

36. For the reasons set forth above, Respondent did not violate School Board Policy 3210.01, Code of Ethics.

37. Accordingly, there is no just cause, as required by section 1012.33, for Petitioner to suspend Respondent from her employment as a teacher for 30 work days without pay.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a Final Order rescinding the suspension of Respondent, Thelma Mobley, from her employment as a teacher for

30 work days without pay, and paying Respondent's back salary for the 30-day period for which she was suspended.

DONE AND ENTERED this 17th day of April, 2013, in Tallahassee, Leon County, Florida.

S

CATHY M. SELLERS

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 17th day of April, 2013.

ENDNOTES

1/ Videos 112 and 113 of Petitioner's Exhibit 14 were admitted into evidence. Video 111, which is on the same disc as videos

112 and 113, was neither proffered nor admitted into evidence.

2/ Videos 112 and 113 each depict a separate play fight lasting slightly over one minute.

3/ The evidence did not establish whether this video was of the first, second, or third play fight.

4/ Rule 6A-5.056, entitled "Criteria for Suspension and Dismissal," has a convoluted history. The rule initially was promulgated as rule 6B-4.09 and later was transferred to rule 6B-4.009 in 1983. On the same date the rule was transferred to rule 6B-4.009, it also was transferred to rule 6A-5.056. The rule is currently and correctly cited as rule 6A-5.056. See Florida Administrative Code Chapter 6B-4 (stating that rule 6B-

4.009 was transferred to rule 6A-5.056). The version of the rule applicable to this proceeding is that adopted in 1983. The most recent amendment to rule 6A-5.056, adopted on July 8, 2012,

does not apply to this proceeding because the conduct at issue occurred before the amendment's effective date.

5/ Except as otherwise stated, all references are to 2011 Florida Statutes, which were in effect at the time the incident giving rise to this proceeding occurred.

COPIES FURNISHED:

Mark S. Herdman, Esquire Herdman and Sakellarides, P.A. Suite 110

29605 U.S. Highway 19, North

Clearwater, Florida 33761

Sara M. Marken, Esquire

Miami-Dade County School Board Suite 430

1450 Northeast 2nd Avenue Miami, Florida 33132

Dr. Tony Bennett, Commissioner of Education Department of Education

Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

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

1450 Northeast Second Avenue Miami, Florida 33132-1308

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: 12-001852TTS

Orders for Case No: 12-001852TTS