STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BROWARD COUNTY SCHOOL BOARD,
vs.
Petitioner,
Case No. 13-2900TTS
DEBORAH TERSIGNI,
Respondent.
/
RECOMMENDED ORDER
Pursuant to notice, a hearing was conducted in this case pursuant to sections 120.569 and 120.57(1), Florida Statutes (2013), before Cathy M. Sellers, an Administrative Law Judge of the Division of Administrative Hearings ("DOAH"), on December 8 and 9, 2014, and March 17 and 18, 2015, by video teleconference at sites in Fort Lauderdale and Tallahassee, Florida.
APPEARANCES
For Petitioner: Charles T. Whitelock, Esquire
Charles T. Whitelock, P.A.
300 Southeast 13th Street, Suite E Fort Lauderdale, Florida 33316
For Respondent: Mark S. Wilensky, Esquire
Dubiner & Wilensky, LLC
1200 Corporate Center Way, Suite 200
Wellington, Florida 33414-8594
STATEMENT OF THE ISSUE
Whether just cause exists for Petitioner to suspend Respondent without pay and terminate her employment as a teacher.
PRELIMINARY STATEMENT
On or about July 1, 2013, the Superintendent of Schools for Broward County, Florida, notified Respondent, Deborah Tersigni, that he was recommending that Petitioner, Broward County School Board, take action at its July 23, 2013, meeting to suspend Respondent without pay and terminate her employment as a teacher. The notice informed Respondent that if she chose to challenge her termination, she must request a "formal hearing" in writing on or before August 13, 2013. Respondent timely requested a hearing challenging her proposed termination. Petitioner took action on or about July 23, 2013, to suspend Respondent without pay and terminate her employment.
On August 1, 2013, Petitioner's Administrative Complaint and agency action letter and Respondent's request for an administrative hearing were forwarded to the ("DOAH") for assignment of an administrative law judge to conduct a hearing pursuant to sections 120.569 and 120.57(1). The hearing initially was scheduled for October 29 and 30, 2013.
Respondent also was criminally charged with child abuse on the basis of the alleged conduct giving rise to Petitioner's proposed termination action. During the course of discovery in
this proceeding, Respondent moved for a protective order to excuse her from being required to respond to Petitioner's discovery on the ground that requiring such responses would force her to potentially incriminate herself in the criminal proceeding, in violation of the Fifth Amendment of the United States Constitution. Respondent also moved to place this proceeding in abeyance pending resolution of the criminal charges against her.
On November 6, 2013, the undersigned placed this case in abeyance, with the parties ordered to provide a case status report by January 7, 2014. Pursuant to Petitioner's request, on January 23, 2014, abeyance was lifted and the final hearing was set for May 1 and 2, 2014.
On April 1, 2014, Petitioner moved for, and was granted, leave to amend the Administrative Complaint. At Respondent's request, the final hearing was continued and rescheduled for August 26 and 27, 2014. However, due to the final hearing being set during or at the end of Petitioner's summer vacation period, many witnesses were unavailable and the parties were unable to complete discovery with sufficient time remaining to adequately prepare for the final hearing. Thus, pursuant to joint motion, the final hearing was again continued and was rescheduled for December 8 and 9, 2014.
The final hearing was conducted on December 8 and 9, 2014, but was not completed. The continued hearing was conducted on March 17 and 18, 2015, and concluded on March 18, 2015.
In its case in chief, Petitioner presented the testimony of Saemone Hollingsworth-Louis, principal at Silver Ridge Elementary School; Nancy Long, assistant principal at Silver Ridge Elementary School; paraprofessionals Rostande Cherelus, Cara Yontz, Shirley Brown, and Monica Jobes; Angela Love Callahan, a teacher; Lisa Modaferri, a teacher; Mariana Aparicio-Rodriquez, an occupational therapist; Maureen McLaughlin, the child abuse liaison at Silver Ridge Elementary School; and Respondent.
Petitioner's Exhibits 1, 2, 19, 21, 22, 23, 26, and 31 were admitted into evidence without objection and Petitioner's Exhibits 9, 10, 11, 15, 16, 17, 18, 20, 24, and 25 were admitted into evidence over objection. Petitioner's Exhibits 3, 5, 6 and
8 were proffered but not admitted into evidence.
Respondent testified on her own behalf and presented the testimony of Shakima Jones, mother of a child in Respondent's class; Jackie Hernandez, mother of a child in Respondent's class; and Diane Watts, field staff representative for the Broward Teachers Union. Respondent's Exhibits 35, 35A, 35B, and 35C were admitted into evidence without objection.
On rebuttal, Petitioner presented the testimony of Kathleen Andersen, a detective with the Broward County School Board Police
Department; and Emily Halaby, an investigator with the Broward County Sheriff's Office Child Protective Investigations Section.
Volumes one through four of the eight-volume, 1,090-page Transcript were filed with DOAH on February 19, 2015, and volumes five through eight were filed on April 9, 2015. Pursuant to the parties' request, the deadline for filing proposed recommended orders was set for May 11, 2015, then extended to May 27, 2015.
Petitioner timely filed Petitioner's Proposed Recommended Order on May 27, 2015. Respondent's Proposed Recommended Order was filed on May 28, 2015. Both proposed recommended orders were given due consideration in preparing this Recommended Order.
FINDINGS OF FACT
The Parties
Petitioner is a duly-constituted school board charged with operating, controlling, and supervising all free public schools within the Broward County, Florida, pursuant to Florida Constitution Article IX, section 4(b), and section 1012.23, Florida Statutes.
At all times relevant to this proceeding, Respondent was employed with Petitioner as an exceptional student education ("ESE") teacher at Silver Ridge Elementary School in Broward County, Florida.
The Events Giving Rise to this Proceeding
Respondent has extensive educational training and experience in working with disabled and special needs students for many years.
Respondent worked in the school system in Long Island, New York, as a paraprofessional for an estimated 13 to 14 years. Her duties included working with exceptional students at a cerebral palsy center, where she assisted teachers in changing students' diapers, feeding them, and assisting them in using various types of adaptive equipment. She also taught and tested special needs students having physical disabilities but possessing greater cognitive awareness.
At the encouragement of teachers with whom she worked, Respondent pursued and received her bachelor's degree in elementary education in 1999, while continuing to work as a paraprofessional in the school system. Thereafter, she pursued her master's degree while working as a substitute teacher during the school year and as a teacher for summer school during the summer months. Respondent received her master's degree in special education in 2003.
Respondent began working as an ESE teacher at Silver Ridge Elementary School in 2003, shortly after she moved to Florida.
The allegations giving rise to this proceeding span the 2011-2012 and 2012-2013 school years.
During both school years, Respondent's ESE students were disabled and most of them were nonverbal.
Petitioner alleges that during both school years, Respondent engaged in physically and verbally aggressive and abusive actions toward students in her classroom in violation of Department of Education rules and Petitioner's policies.
The 2011-2012 School Year Background
Starting in August of the 2011-2012 school year, paraprofessionals Rostande Cherelus and Cara Yontz were assigned to assist in Respondent's classroom.
Cherelus and Yontz both testified that they had a good working relationship with Respondent. However, this testimony is belied by the credible, persuasive evidence establishing that Respondent did not enjoy a smooth working relationship with either of them.
The persuasive evidence establishes that the difficulties in Respondent's relationship with both paraprofessionals stemmed from their frequent tardiness, leaving the classroom during instructional time without Respondent's permission, and frequent use of their cell phones in the
classroom during instructional time. Respondent let them know on many occasions that this behavior was not acceptable.
The persuasive evidence further establishes that neither paraprofessional was particularly cooperative in assisting Respondent in the classroom. For example, when Respondent attempted to engage the participatory-level students in the various learning activities class, the paraprofessionals
——particularly Cherelus——would often respond with what Respondent characterized as "huffing and puffing," rolling of the eyes, crossed arms, and comments questioning the utility of engaging in activities to educate the students because "that kid can't do anything anyway." Respondent credibly testified that when admonished, Cherelus would make statements such as "thank God, God didn't give me a kid like that."
Respondent consistently reported the ongoing problems with Cherelus and Yontz to then-Principal Marion Gundling and then-Assistant Principal Saemone Hollingsworth. However, it appears that this effort was in vain. By November 7, 2011, the situation in Respondent's classroom had deteriorated to the point that Respondent requested a meeting with Gundling and Hollingsworth to address the continuing problems with the paraprofessionals.
After the November 7, 2011, the situation in Respondent's classroom did not improve. Respondent testified,
credibly, that both paraprofessionals continued to be difficult to work with, that there was constant friction in the classroom, and that both paraprofessionals were aware of her lack of satisfaction with their behavior and job performance. They also knew that she communicated her dissatisfaction to the school administration.
On December 1, 2011——notably, before Cherelus and Yontz alleged student abuse by Respondent1/——Respondent contacted Gundling and Hollingsworth by electronic mail ("email"), stating "[m]y classroom is an absolute disaster since our meeting." The email described in great detail2/ events, actions by the paraprofessionals, the dysfunctional atmosphere in Respondent's classroom arising from the paraprofessionals' behavior and poor job performance, and Respondent's continued dissatisfaction with them.
On December 15, 2011, Yontz filed a written statement with the school administration alleging that Respondent had taken abusive actions toward students D.N. and J.M. Yontz's statement alleged that in October of that year, Respondent had become angry with D.N., screamed at her, and grabbed her hair from behind.
The statement also alleged that in October of that year,3/ Respondent punished student J.M. by confining her to the classroom bathroom from 8:30 a.m. to 1:45 p.m. The statement further alleged that on December 15, 2011, Respondent had become
angry with and screamed at student J.M., pushed her face, and attempted to secure J.M's glasses, which were too large for her face, with a rubber band. According to Yontz's statement, Respondent pulled J.M.'s hair, causing her to make noises indicating that she was in pain.
Cherelus filed a written statement with the school administration on December 16, 2011, stating that when she had returned from break the previous day, J.M. was upset. According to Cherelus' statement, when she asked J.M. what was wrong, J.M. said "Ms. T. pull" and made a pulling motion while pointing to her glasses.
On December 16, 2011, Respondent was removed from her classroom pending an investigation of the allegations against her made by Yontz and Cherelus.
Ultimately, the investigation yielded insufficient evidence to support Yontz's and Cherelus' allegations and Petitioner took no disciplinary action against Respondent at that time. She was returned to her classroom in April 2012.
Notwithstanding that the investigation absolved Respondent, Petitioner now seeks to take disciplinary action based on these accusations.
Allegations in Amended Administrative Complaint
In Petitioner's Amended Administrative Complaint filed in this proceeding on April 1, 2014, Petitioner alleges that
during the 2011-2012 school year, Respondent engaged in physically and verbally aggressive and abusive acts toward students D.N., J.M., A.S., and C.A., who were assigned to her class. Each of these allegations is addressed below.4/ Student D.N.
Petitioner alleges, in paragraph 5. of the Amended Administrative Complaint, that in October 2011, Respondent screamed at student D.N. for being unable to complete her work and pulled her hair.
At the final hearing, Cherelus and Yontz both testified that one day in the classroom, Respondent grabbed D.N. by her ponytail. However, their testimony is inconsistent regarding key details and circumstances.
Cherelus testified that Respondent grabbed D.N. and pulled her up from her chair because she had asked D.N. to get up and go get her classwork, and D.N. did not do so. Cherelus testified that Respondent said something to the effect of "[l]et's go, you don't want to do your work" and pulled D.N. up from her chair by her ponytail, causing D.N. to fall on the floor. Cherelus testified that D.N. screamed and Respondent let her go. Cherelus further testified that Respondent did not scream at D.N.
Yontz, on the other hand, testified that Respondent screamed at D.N. because she was not focusing on the classwork in
front of her on her desk. Yontz testified that at one point, Respondent grabbed D.N. by the back of the neck and forcefully held her head to keep her facing downward. Yontz testified that Respondent then grabbed and tugged D.N.'s ponytail and pulled her head backward to force her to look at her work.
The inconsistencies between the Cherelus' and Yontz's testimony are significant. Cherelus described a situation in which Respondent jerked D.N.'s ponytail to make her get up from her desk, and that as a result, D.N. fell to the floor. However, Yontz described a situation in which D.N. remained seated and Respondent jerked her head backward by her ponytail to make her focus on the work on her desk.5/ Additionally, Yontz testified that Respondent screamed at D.N., while Cherelus specifically stated that she did not scream. Yontz testified that Respondent grabbed the back of D.N.'s neck, while Cherelus did not testify to that effect.
Testimony regarding key details and circumstances surrounding the incident is vital to determining credibility in a case such as this, where the witnesses for both parties have differing accounts of the events at issue. Here, due to the inconsistencies in their testimony regarding significant
details and circumstances regarding the alleged incident, the undersigned finds neither Cherelus' nor Yontz's testimony persuasive or credible.
By contrast, Respondent provided a clear, detailed account of the incident that significantly differed from that provided by Cherelus and Yontz. On the day in question, Respondent was working with D.N., who has a movement-related disability, to direct her to focus on her work. Because of D.N.'s disability, she was easily distracted and often looked around at activity occurring on either side of her. Thus, when Respondent engaged in one-on-one instruction with D.N., she would stand behind D.N. and use a series of voice and gestural commands, verbal and gestural prompts, and physical prompts as necessary, to get D.N. to focus on her work. Pursuant to D.N.'s individual education plan ("IEP"), she had worn a weighted vest to assist her in focusing on her work, but shortly before the incident, her IEP had been amended to no longer include use of the vest, so Respondent had instead begun using physical compression on D.N.'s shoulders, with her thumbs touching the back of her neck, to assist D.N. in focusing. Respondent credibly testified that the compression was slight, not forceful. On the day in question, Respondent used the compression technique but D.N. continued to look around, so Respondent put her hands on the sides of D.N.'s face to focus her to gaze downward at her work. When Respondent removed the compression from D.N.'s shoulders, she popped backward. Respondent credibly testified that she did not pull D.N.'s hair or jerk her head backward by
her ponytail. Respondent's account of the incident is credible and persuasive.6/
Further, the timing of Respondent's email communication with Gundling and Hollingsworth is significant to determining the comparative credibility of Respondent, Cherelus, and Yontz. Respondent's December 1, 2011, email to Gundling and Hollingsworth described in significant detail the events and actions that had taken place in Respondent's classroom following her November 7, 2011, meeting with them. Of particular note is Respondent's detailed description of Cherelus' actions on December 1, 2011, toward student D.N.——specifically, that Cherelus pulled D.N's hair and screamed at her. Respondent's email account of that incident, sent on the same day it was alleged to have occurred and describing it in substantial detail, is far more persuasive than both Cherelus' or Yontz's subsequent statements and hearing testimony regarding the incident.
The credible, persuasive evidence leads to the inference that as a result of the paraprofessionals' poor relationship with Respondent, they accused her——after she had reported their poor performance——of the very conduct toward student D.N. that Respondent previously reported that Cherelus had committed. This is a far more reasonable inference than the version of events that Petitioner espouses——which would require the undersigned to infer that Respondent somehow knew that she
was going to be accused, at a later date, of pulling D.N.'s hair and screaming at her, so she covered herself by preparing and sending the December 1, 2011, email accusing Cherelus of engaging in that same conduct.
For these reasons, the undersigned finds the testimony of Cherelus and Yontz regarding the alleged incident involving
D.N. incredible and unpersuasive. Conversely, the undersigned finds Respondent's testimony regarding D.N. credible and persuasive.
Accordingly, Petitioner failed to prove the allegations in paragraph 5. of the Amended Administrative Complaint regarding student D.N.
Student J.M.
In paragraph 5. of the Amended Administrative Complaint, Petitioner alleges that in October 2011, Respondent confined student J.M. to the classroom restroom from 8:30 a.m. to 1:45 p.m. as punishment for urinating in her pants.
Petitioner's direct evidence to support this allegation primarily consisted of Yontz's testimony.7/ According to Yontz,
J.M. came to school one morning after having wet her pants the previous day, and Respondent immediately placed her in the classroom restroom, with the door closed, to punish her.8/ Yontz testified that Respondent left J.M. in the restroom by herself with the door closed beginning at 8:30 a.m. until
1:45 p.m., only being allowed to leave the restroom for lunch in the cafeteria. Yontz also testified that because J.M. was confined to Respondent's classroom restroom all day, the other students in Respondent's class had to use the restroom in other classrooms.
Cherelus did not testify regarding this alleged incident.9/
Respondent's clear, credible explanation of this incident differed sharply from that provided by Yontz. Because
J.M. frequently would urinate in her pants, her mother would send multiple sets of clothing to school so that Respondent could change J.M.'s clothes when this happened. J.M. had urinated on herself the previous day and had gone through her last set of clothing that day, so Respondent sent a note home to J.M.'s mother asking her to send a fresh set of clothing to school the following day. However, when J.M. arrived at school the next day, she had urinated in her pants and her mother had not sent extra clothing. Respondent changed J.M. into a borrowed set of D.N.'s clothing. J.M. again urinated in her pants and at that point, there was no extra clothing in the classroom for J.M. to wear. Respondent sent Cherelus to the school clinic to see if there was extra clothing that J.M. could wear and she also contacted J.M.'s mother to bring clothing to school for J.M. During the time it took for Cherelus to go to the clinic and
return with clothing for J.M. to change into, Respondent put J.M. in the restroom. Respondent could not recall the exact amount of time that J.M. was confined to the restroom, but estimated that it was a short amount of time. She credibly testified that J.M. did not spend the entire day confined to the restroom, and that
J.M. was not placed in the restroom as punishment, but, rather, to await a change of clothing.
J.M.'s mother, Shakima Brown, verified Respondent's account of the incident. Brown testified that Respondent called her on the day in question to request that she bring a change of clothes to the school. Brown lived only ten minutes away, and she directed Respondent to place J.M. in the restroom until she could bring the extra clothing to the school. Brown testified, credibly, that J.M. had never communicated to her that Respondent confined her to the restroom as punishment, and that had that happened, J.M. would have let her know.
The credible, persuasive evidence supports Respondent's account of this incident. The undersigned finds Yontz's account of this incident incredible and unpersuasive.
Petitioner also alleges, in paragraph 6. of the Amended Administrative Complaint, that on December 15, 2011, Respondent verbally abused J.M., slapped her face, and popped her with a rubber band that she had tied to J.M.'s glasses in an effort to keep them on her face.
Yontz is the only witness whose testimony Petitioner presented who claimed to have actually seen the incident. Yontz testified that on the day in question, J.M. was attempting to write her name but was unable to do so without making mistakes. According to Yontz, this annoyed Respondent, who screamed at
J.M. Yontz testified that J.M.'s glasses kept falling off, so Respondent tied a rubber band on the ends of them to keep them from falling off. However, the rubber band was too tight so kept popping J.M.'s ear, causing her to make noises as if she were in pain. According to Yontz, Respondent pushed J.M.'s face and screamed at her "oh, you're so annoying, you freaking idiot." Yontz testified that Respondent did not slap J.M.'s face.10/
Cherelus' also testified regarding this incident. She testified that on that day, she took J.M. to another classroom, and that as she was doing so, J.M. cried. Cherelus testified that when she asked J.M. what was wrong, J.M. said "Ms. T
slapped me" and gestured in a manner that Cherelus interpreted as showing that Respondent had slapped J.M.11/
On cross examination, Cherelus acknowledged that she did not see Respondent slap J.M., pull her hair, or otherwise hurt her. Cherelus further acknowledged that J.M. is largely nonverbal and incapable of articulating sentences, and that she only said "Ms. T." while making a pulling motion. In any event, Cherelus did not have personal, independent knowledge of this
alleged incident, and her testimony was based on J.M.'s limited statement and gesture.
Maureen McLaughlin, the child abuse designee for Silver Ridge Elementary School, also testified regarding this alleged incident. McLaughlin testified that Yontz brought J.M. to her office,12/ and that at Yontz's prompting, J.M., using a teddy bear, indicated that Respondent had pushed her head using an open hand. McLaughlin testified:
[a]nd basically, it's hard to enact, but J. took her hand, sort of open like this, and what I remember is that her head turned, like, she turned her head. So it was hard to tell, like, is it a slap, is it a push, but it was an open hand and her head ended up being turned because of it.
McLaughlin reported the incident to the abuse hotline.13/
Respondent provided a credible, persuasive explanation of the incident. She testified that J.M. previously had a pair of glasses that did not fit her and had used a teal elastic band to hold them on her face. At some point, J.M. lost both the elastic band and her glasses, so Respondent contacted J.M.'s mother regarding getting another pair of glasses for J.M.; however, J.M.'s mother told her that they could not afford to purchase another pair of glasses. Respondent gave J.M.'s mother a pair of glasses frames that had belonged to her daughter, and J.M.'s mother had the frames fitted with J.M.'s prescription. However, those glasses also did not fit J.M.'s face and fell off
when she looked down. On the day in question, Respondent tried, unsuccessfully, to tie the glasses on J.M.'s face using a large rubber band. The rubber band popped, causing J.M. to make a sound. Respondent apologized, tried one more time to tie the glasses on J.M.'s face using the rubber band, then gave up.
Respondent testified that while she was attempting to tie the glasses on J.M.'s face, J.M. was moving around, so Respondent had
J.M. put her head down on the desk. J.M. was hearing-impaired and had put her head down on the side on which her functioning ear was located, so Respondent used her open hand to turn J.M.'s head to the other side. Respondent credibly testified that she did not slap J.M., scream at her, or pull her hair.
J.M.'s mother, Shakima Brown, testified that she had been informed of the incident concerning J.M.'s glasses and that on her own, over a period of days, had asked J.M. several times if anyone had hit her. Brown testified, credibly, that J.M. said "no" every time she was asked.14/
The credible, persuasive evidence establishes that Respondent did not scream at J.M., did not slap her face, and did not intentionally hurt her by popping her ear with a rubber band.
Accordingly, Petitioner failed to prove the allegations in paragraph 6. of the Amended Administrative Complaint.
Student A.S.
In paragraph 5. of the Amended Administrative Complaint, Petitioner alleges that Respondent handled A.S. in a physically rough manner, causing him to sustain a scratch on his neck.
Cherelus testified that she did not recall any incident involving a student named "A.," and she could not recall his last name.
Yontz testified that one day, she took the children out for recess, and as they were leaving, A. was in the room with Respondent. A. subsequently came outside and was crying, and Yontz observed scratch marks on A.'s neck. Yontz testified that she had asked what had happened, and Respondent told her that A. had scratched his neck on the corner of the counter as he put trash in the trash can.
Neither Yontz nor Cherelus saw Respondent scratch A., and Petitioner presented no other evidence showing that Respondent scratched A.
The sum of Petitioner's evidence regarding this allegation is that A. was scratched while in the classroom with Respondent. There is absolutely no competent substantial evidence in the record showing that Respondent scratched A.
Additionally, neither Yontz nor Cherelus, or any other witness, specifically identified "A." as the student "A.S." named
in paragraph 5. of the Amended Administrative Complaint. Thus, Petitioner failed to present any competent substantial evidence linking the testimony about "A." to any allegations in the Amended Administrative Complaint.
Accordingly, Petitioner failed to prove the allegations set forth in paragraph 5. of the Amended Administrative Complaint involving student A.S.
Student C.A.
Petitioner alleges, in paragraph 7. of the Amended Administrative Complaint, that C.A. went home with scratches on his neck and face over a three-day period, and that when Respondent was questioned, she claimed that C.A. "had an encounter with a tree."
Presumably, paragraph 7. is intended to charge Respondent with scratching C.A. and then lying about it.
However, this paragraph does not expressly allege that Respondent scratched C.A. or otherwise injured C.A., so fails to allege that Respondent engaged in conduct that, if proven, would violate Petitioner's policies or Department of Education rules.
Further, to the extent paragraph 7. could be read to sufficiently allege that Respondent scratched or otherwise injured C.A., there was no testimony presented at the final hearing by anyone having personal knowledge of the alleged
incident. Thus, Petitioner failed to present any competent substantial evidence supporting this allegation.15/
Thus, Petitioner failed to prove the allegation involving student C.A. set forth in paragraph 7. of the Amended Administrative Complaint.
The 2012-2013 School Year Background
Petitioner alleges in the Amended Administrative Complaint that during the 2012-2013 school year, Respondent again engaged in physically and verbally abusive acts toward students assigned to her class.
Paraprofessionals Shirley Brown and Monica Jobes were assigned to assist in Respondent's classroom in the 2012-2013 school year.
That year, approximately nine ESE students were assigned to Respondent's classroom.
The credible, persuasive evidence made abundantly clear that neither Brown nor Jobes enjoyed a smooth working relationship with Respondent. This was, in large measure, due to the fact that Respondent had high expectations regarding their performance in assisting her in the classroom, and she consistently reminded Brown and Jobes of those expectations.16/
In particular, Respondent made clear that her——and, by extension, the paraprofessionals'——job entailed taking reasonable and
necessary measures to work with students to help them achieve to their capabilities. Respondent testified, persuasively, that neither Brown nor Jobes were dedicated to this approach and instead viewed their jobs more as caretakers or "babysitters" of the students for the school day. Respondent frequently made clear to Brown and Jobes that as the teacher, she was in charge of the class and the instructional approach and all other activities and aspects of classroom management. It was apparent from the credible, persuasive evidence that Brown and Jobes resented Respondent's repeated, overt assertion of authority over them.
The persuasive evidence establishes that Brown was as much as a half-hour late to Respondent's class nearly every day, and that Respondent also regularly had to admonish her about frequent use of her cell phone for personal matters during instructional time. Brown also frequently disregarded Respondent's instructions on a range of student-related matters, and when Respondent confronted her, Brown verbally lashed out.17/
The persuasive evidence also establishes that Jobes often sent and received personal text messages during instructional time, causing her to be distracted and interfering with her work.
The persuasive evidence established that Brown's and Jobes' behaviors were disruptive to the classroom environment
and, in some instances, posed a danger to the students, and that Respondent let them know that their behavior was unacceptable.
Shortly before the holiday vacation in December 2012, a holiday celebration was held in Respondent's classroom. While Respondent tended to the other students in the class and their parents, she specifically asked Brown and Jobes to stay with and tend to student C.R., since he did not have a parent present at the celebration. At some point, both paraprofessionals left C.R. alone. While unattended, C.R. ingested something to which he was allergic, went into anaphylactic shock, and ultimately had to be transported to the hospital.
In early January 2013, shortly after school commenced following the holiday vacation, Respondent's students went to the music teacher's classroom. Brown was going to place C.R. on the floor, notwithstanding that Respondent had specifically directed her not to do so because he might again ingest something that could make him ill. At that point, Respondent told Brown not to place C.R. on the floor, to which Brown responded "don't worry, I got this" or something to that effect. Respondent tersely admonished Brown and reminded her that it was her (Respondent's) call because she was the teacher.18/ It was apparent from Brown's testimony that she greatly resented Respondent's assertion of authority over her.
To address Brown's ongoing behavior and performance issues, Respondent requested a meeting on January 9, 2015, with Principal Hollingsworth, Assistant Principal Long, and ESE Supervisor Vickie Bloome. At the meeting, Hollingsworth informed Brown that Respondent had complained to her about her (Brown's) repeated cell phone use during classroom instructional time and directed her to refrain from using her cell phone during that time.
Notwithstanding this meeting, nothing changed in Respondent's classroom. Respondent continued to experience friction in working with the paraprofessionals, who knew that Respondent had complained to the school administration about their performance.
On January 16, 2013, an incident involving C.R., discussed in detail below, occurred. During this incident, C.R. became very aggressive, fought, bit and scratched himself, and grabbed for Respondent's insulin pump, which she wore on her arm. As discussed in greater detail below, Respondent and C.R. fell on the floor. Respondent prepared a written report detailing the incident. Persons who witnessed the incident, including Brown and Jobes, signed the report, and Respondent filed it with the school administration that day.
On January 23, 2013, Respondent called a meeting with Jobes and Brown to address their ongoing performance issues,
update them on student issues, and cover common core implementation procedures. In the email Respondent sent to Jobes and Brown regarding the meeting, she reminded them: "STILL seeing phones being checked and answered during class time. Even if a phone rings during class, it should NOT be answered until your personal time." At the meeting, Respondent once again reminded Brown and Jobes that they were not to use their cell phones during classroom instructional time.
On the afternoon of January 23, 2013, following Respondent's meeting with her and Jobes, Brown reported to Assistant Principal Long an incident in which T.P. allegedly said "Ms. T. hurt me."
At some point, Jobes also reported to Long that T.P. told her the same thing.19/ Jobes also sent an email to Hollingsworth that afternoon describing a situation in which T.P told her "Ms. T. hurt me."
Thereafter, Long spoke with Respondent to get her version of what had happened.
At some point on the evening of January 23, 2013, Respondent sent an email to Long stating that she had not been alone with T.P. that day. It was apparent from Respondent's email that she felt that could not trust Brown. She requested that Brown be removed from her classroom.
Brown was removed from Respondent's classroom on the morning of January 24, 2013.
At some point thereafter, Brown prepared, signed, and filed a report, dated January 23, 2013, alleging that Respondent had engaged in numerous aggressive and abusive acts toward students over a period of months. It is obvious in reading the report——which references Brown's removal from Respondent's classroom———that it was not prepared until sometime after Brown was removed from Respondent's classroom on January 24, 2015.
Jobes also signed the report. She testified that Brown had prepared it and that she had contributed "notes."
Brown also prepared and filed another written statement alleging that Respondent had engaged in specific instances of abusive and aggressive behavior toward students in her class. This report also was dated January 23, 2013, but again referenced her removal from Respondent's classroom, so obviously was prepared sometime after January 24, 2013.
On the evening of January 24, 2013, Jobes sent an email to Hollingsworth requesting to be removed from Respondent's classroom. The email stated: "I came home today so stressed and exhausted from Ms. T all day at me." Jobes, who was pregnant, was concerned that the stress she was experiencing in working with Respondent in her classroom would adversely affect her health.
On January 25, 2013, Jobes was removed from Respondent's classroom.
On or about January 29, 2013, Respondent was removed from her classroom and reassigned to another position in the school system pending the outcome of an investigation conducted by the Broward County Sheriff's Office Child Protective Investigations ("CPI") Section.
In a statement dated February 3, 2013, Jobes alleged that Respondent had taken aggressive and abusive actions toward certain students in her class over a period of months. She also stated that she felt bullied because Respondent, at times, spoke to her disrespectfully, and that Respondent would "constantly remind everyone in the room that she is the boss and if they wanted to be the boss then they need to go get a 4-year degree."
Notably, prior to their January 23, 2013, meeting with Respondent, neither Jobes nor Brown had ever reported that Respondent had engaged in aggressive or abusive behavior toward her students.20/
Allegations in Amended Administrative Complaint
In the Amended Administrative Complaint, Petitioner alleges that Respondent engaged in physically and verbally aggressive and abusive behavior toward specific students in her class. Each of these allegations is addressed below.
Student M.M.
In paragraph 9. of the Amended Administrative Complaint, Petitioner alleges that Respondent grabbed student
M.M. by the back of her neck, held her head down in the garbage can to make her retrieve an open bag of chips, and forced her to eat them because she had asked for them.
At the hearing, Brown and Jobes both testified that on one occasion during classroom snack time, Respondent had given
M.M. a bag of chips at her request. M.M. ate a few chips, then tossed the bag in the trash can. Brown and Jobes testified that Respondent held M.M. by the back of the neck and forced her to remove the chips from the trash can. On direct examination, Jobes testified that Respondent forced M.M. to eat the chips, but on cross-examination, testified that, M.M. did not eat the chips. Brown testified that M.M. ate some of the chips but did not finish.
Respondent confirmed that she did make M.M. retrieve the chips from the garbage can, but explained the context and the circumstances for making M.M. do so. She credibly denied that she had forced M.M. to eat the chips.
Specifically, M.M. had been purchasing school lunches, but Jobes and Brown informed Respondent that M.M. was not eating her lunch. Respondent contacted M.M.'s mother, and collectively, Respondent and M.M.'s mother arrived at a plan in which M.M.
would pick out her lunch and snack items at home. The items would be packed in her lunch box, and she would bring her lunch and snacks to school every day. M.M.'s mother also sent a large bag of snacks for M.M. that was kept in the classroom closet and
M.M. would get the snack of her choice at snack time. M.M.'s mother specifically requested that Respondent send home anything that M.M. did not eat so that she (M.M.'s mother) would know what
M.M. was and was not eating.
On the day at issue, M.M. requested a bag of chips.
Respondent gave them to her and M.M. returned to her seat, where she ate one or two chips, then threw the bag of chips away in the trash can. Respondent saw this and told M.M. to retrieve the chips from the trash can. Respondent did this so that she could send them home with M.M., consistent with the plan she had devised with M.M.'s mother.
Consistent with Respondent's method of prompting M.M.'s behavior, she asked M.M. three times to remove the chips from the trash can. She then added a gestural prompt, done multiple times, that consisted of pointing to the trash can to inform M.M. exactly what she wanted her to do and where she was to go. When
M.M. did not respond, Respondent took M.M. by the hand, led her to the trash can, and again gestured and asked her to remove the chips. Again, M.M. did not respond, so Respondent employed a physical prompt that consisted of placing her hand on M.M.'s
shoulder and hand and applying enough pressure to show M.M. that she needed to bend down to retrieve the chips. At that point, with Respondent's help, M.M. retrieved the chips from the trash can. Respondent told M.M. to put them in her lunch box so that she could take them home, consistent with M.M.'s mother's request. Respondent credibly testified that she did not tell
M.M. she had to eat the chips or force her to eat them.
The evidence does not establish that M.M. cried or was distressed as a result of Respondent's actions, and there was no evidence presented to show that M.M. was injured or sickened as a result of this incident.
The credible, persuasive evidence establishes that Respondent did not punish M.M. for throwing the chips away, that she did not forcefully grab M.M. by the back of the neck or hold her head down into the trash can, and that she did not force M.M. to eat the chips. The evidence instead shows that Respondent's actions in dealing with M.M. on this occasion were appropriate and were consistent with her discussions with M.M.'s mother.
Petitioner did not prove the allegations in paragraph 9. of the Amended Administrative Complaint. Student T.P.
In paragraph 10. of the Amended Administrative Complaint, Petitioner alleges that in December 2012, Respondent force-fed student T.P., causing him to regurgitate.
The undisputed evidence establishes that T.P. often refused to eat. On the day in question, T.P. purchased lunch from the cafeteria but he refused to eat the lunch, so was brought back to the classroom, where Respondent attempted to get
T.P. to eat his lunch.
Brown testified that Respondent forced a piece of chicken and chicken skin into T.P.'s mouth, that he was crying hysterically, and that he gagged. Brown further testified that Respondent made a video recording of T.P. eating.
Jobes, who also was present when the incident occurred, did not testify that Respondent force-fed T.P.——only that Respondent was verbally urging T.P. to eat plantains. She did not testify that T.P. gagged or regurgitated. She also testified that Respondent made a video recording of the incident.
Respondent testified that T.P. was a very picky eater who did not eat well, and that he regurgitated on the way to lunch every day. She testified, credibly, that she had discussed this issue with T.P.'s parents, and they had directed her to encourage him to eat.21/ Because the sight of other students eating or the smells of food would cause T.P. to vomit, he typically ate at a small table in the cafeteria positioned so he could see the outdoors.
On the day in question, the students ate lunch in the classroom. T.P. was having particular difficulty eating that day
because he was situated with the entire class as they ate, making him uncomfortable. In an effort to persuade T.P. to eat, Respondent went over to him, picked up a piece of food and coaxed him to eat. T.P. regurgitated all over his food. At that point, Respondent stopped trying to persuade T.P. to eat and sent a note home to his parents describing what had happened.
Respondent's version of events is credible. By contrast, the testimony of Jobes and Brown regarding this incident was inconsistent, incredible, and unpersuasive.
Thus, Petitioner did not prove the allegations in paragraph 10. of the Amended Administrative Complaint.
In paragraph 14. of the Amended Administrative Complaint, Petitioner alleges that on January 23, 2013, Respondent grabbed T.P. by the back of the neck and pushed him toward the door, causing him to stumble and fall to the ground and to verbalize that "Ms. T. hurt me."
Jobes testified that on that day, she was in the cafeteria when Brown and T.P. entered, with T.P crying. Jobes testified that Brown told her at lunch that she (Brown) had heard some kind of altercation while she was in the classroom restroom. Jobes did not see Respondent grab, push, or take any other action toward T.P. Jobes testified that later that day, T.P. told her "Ms. T. hurt me," and held his hands in a "U" shape. Jobes interpreted that as indicating that Respondent had choked T.P.
Brown testified that she actually saw Respondent grab
T.P. by the back of the neck and push him toward the door, causing him to fall, and that he got up, crying, and went with Brown and the rest of the class to lunch. She testified that later in the afternoon, T.P. told her and Jobes that "Ms. T. hurt me." Specifically, she testified:
I didn't understand him clearly, you know.
So Ms. Jobes was on the other side. He turned, he said 'Ms. Jobes, Ms. Jobes, Ms. T. hurt me, she grabbed me like this." And I, like, what? He said 'I'm going to tell them, I'm going to tell them, Ms. Brown, that Ms.
T. hurt me, you see, Ms. T. hurt me.'
The undersigned finds Brown's testimony incredible and unpersuasive. First, Brown's statement that she actually saw Respondent grab and push T.P. is inconsistent with her statement made to Jobes while at lunch that same day, that she had been in the restroom at the time and had heard an altercation. Further, the evidence showed that while T.P. is somewhat verbal, he is not capable of the extended, coherent discourse that Brown claims he verbalized in telling her and Jobes that Respondent had hurt him.
The undersigned also assigns no weight to Jobes' testimony regarding whether the alleged incident actually occurred. Jobes did not witness the alleged incident, so has no personal independent knowledge regarding whether it occurred.
Thus, Petitioner did not prove the allegations in paragraph 14. of the Amended Administrative Complaint. Student M.P.
In paragraph 11. of the Amended Administrative Complaint, Petitioner alleges that in an effort to make M.P. stop crying, Respondent jerked her chair backward to scare her to make her stop crying, and that when M.P. did not stop crying, Respondent laid the chair down on the floor so that M.P.'s feet were in the air, leaving her in that position for approximately
20 minutes.
Brown and Jobes both testified that M.P. often cried and rocked back and forth in her chair. They testified that in order to make M.P. stop crying, Respondent would try to scare her by jerking the chair backward. Then, if M.P. did not stop crying, Respondent would lay her chair down on the floor so that M.P.'s feet were in the air, and she would leave M.P. in that position until she cried herself to sleep. Both Brown and Jobes testified that they had seen Respondent do this on numerous occasions.
Respondent acknowledged that she had, on more than one occasion, laid M.P. down on the floor in the Rifton chair,22/ but, again, provided credible context for taking this action.
Specifically, as a result of her exceptionality, M.P. would constantly verbalize and often would rock in her chair.
When she became agitated, she would rock her chair so violently that she tipped the chair backward. Initially, Respondent had moved M.P.'s chair against a bookshelf, but M.P. banged her head on the bookshelf. In an effort to prevent M.P. from hurting herself, Respondent then removed M.P. from her chair and placed her on the floor; however, M.P. banged her head on the floor. At that point, Respondent placed M.P. in the Rifton chair. M.P. continued to rock violently, so Respondent ordered a Rifton chair with footrest; however, that measure did not solve the problem with M.P.'s rocking. Respondent then considered placing M.P.'s chair up against the teacher's desk, which would help stabilize the chair but had nothing against which Respondent could bang her head. On one occasion, as Respondent tipped the chair back at a 45-degree angle to place it against her desk, she noticed that
M.P. calmed down and closed her eyes. Thereafter, Respondent would sometimes tip M.P.'s chair against her or her desk if she was not otherwise occupied with activities. However, when she was occupied with other activities, she would sometimes completely recline the Rifton chair, with M.P. strapped in it, on the floor. She did this because it calmed M.P., who otherwise would constantly vocalize, cry, and rock back and forth.
To determine whether this was an appropriate technique, Respondent asked colleagues who also taught ESE students about their view of this technique and whether there
were better techniques of which they were aware. Respondent testified, credibly, that the consensus among other ESE teachers was that if the technique worked to soothe the child and did not endanger her, it was appropriate to use.
Respondent also had consulted regularly with occupational specialist Mariana Aparicio-Rodriquez regarding techniques to prevent M.P. from rocking her chair so that she would not tip her chair over and injure herself, but they had not collectively arrived at a solution to the problem. Respondent testified that she and Aparicio-Rodriquez had not specifically discussed reclining the Rifton chair on the floor with M.P. strapped in it.
One day, while Respondent was alone in the classroom, Aparicio-Rodriquez entered the classroom and saw M.P. completely reclined on the floor in the Rifton chair. Initially, Aparicio- Rodriquez was alarmed that M.P. had tipped the chair over. Aparicio-Rodriquez testified that Respondent told her that she had placed M.P. on the ground to give her a sense of what it felt like to fall back. Respondent then picked up the chair and placed M.P. in an upright position. Aparicio-Rodriquez confirmed that during the entire time that she was in Respondent's classroom, M.P. was calm, unhurt, and not in distress, and that she did not cry.
Aparicio-Rodriquez testified that she did not believe this was an appropriate or useful technique for teaching M.P. not to rock in her chair, and she had intended to report the incident to her supervisor, but because one of Respondent's paraprofessionals informed her that the matter was going to be reported, Aparicio-Rodriquez did not report it. Aparicio- Rodriquez testified that she did not consider the incident to constitute child abuse, so did not report it to the Department of Children and Families.
On cross-examination, Aparicio-Rodriquez stated that it was her opinion, from an occupational therapist's perspective, that using the Rifton chair in such a manner was not appropriate; however, she conceded that placing M.P. on the floor in a reclined position in the Rifton chair was not unsafe, and that
M.P. was neither hurt nor in imminent or potential danger. She acknowledged that she and Respondent had a difference of opinion regarding the propriety of the use of the Rifton chair in this manner.23/
Aparicio-Rodriquez did not identify any statute, rule, policy, or other applicable standard that was violated by Respondent's use of the Rifton chair in this manner.
The persuasive evidence supports the inference that Respondent's placement of M.P. in the Rifton chair in a reclined position on the floor was not intended as a disciplinary measure
to frighten or punish M.P. for crying or rocking in her chair, and was appropriate under the circumstances. Respondent credibly testified that she had tried numerous measures to prevent M.P. from harming herself while rocking back and forth, and that when she inadvertently discovered this technique, she discussed it with other ESE professionals, who had suggested that she continue using it since the child was not distressed or injured and the technique worked to soothe her and prevent her from rocking back and forth and potentially injuring herself.
Aparicio-Rodriquez disagreed with Respondent regarding the appropriateness of the technique, but she was neither qualified nor presented as an expert witness in appropriate teaching techniques for ESE students or in any other subject, and she did not identify any applicable professional or other standards that were violated by Respondent's use of the Rifton chair in this manner.
The persuasive evidence establishes that Aparicio- Rodriquez and Respondent had a difference of opinion regarding the appropriateness of this technique; however, unlike Aparicio- Rodriquez, Respondent had actual successful experience in using this technique without harming M.P. Thus, Respondent's view regarding the appropriateness of using this technique under the circumstances is afforded greater weight than Aparicio- Rodriquez's view.
Petitioner did not prove that Respondent distressed, injured or otherwise harmed M.P., placed M.P. in danger, or violated any applicable statute, rule, policy, teaching technique, or standard by placing M.P. in the Rifton chair in a reclining position.
Thus, Petitioner did not prove the allegations set forth in paragraph 11. of the Amended Administrative Complaint.
Petitioner also alleges that on one occasion, Respondent disciplined M.P. for crying by placing a plastic bag of ice directly on M.P.'s bare chest, and when that technique was unsuccessful, Respondent placed the bag of ice on M.P.'s back, causing her to cry more loudly.
Petitioner presented the testimony of Jobes to substantiate this allegation. Jobes testified that "a couple of times," she saw Respondent place bags of ice under M.P.'s clothing on her bare skin in an effort to get M.P. to stop crying, but that M.P. would not stop crying. Petitioner did not present the testimony of any other witnesses to corroborate Jobes' testimony.
Respondent flatly denied ever having placed ice on
M.P. for any reason, and stated that under any circumstances, she did not know how that would have helped make M.P. stop crying. Respondent also denied having kept ice in the refrigerator in her classroom.
Respondent's testimony was credible, and Jobes' testimony was not credible, regarding these allegations.
Accordingly, Petitioner did not prove the allegations in paragraph 12. of the Amended Administrative Complaint. Student C.R.
In paragraph 13. of the Amended Administrative Complaint, Petitioner alleges that on one occasion, Respondent removed C.R. from his wheelchair, screamed in his ear, held both hands behind his back, laid him face-down on the floor, and laid on top of him for several minutes as he gasped for air.
The undisputed evidence shows that on the morning of January 16, 2013, student C.R. (also referred to as "C.J." in the final hearing testimony) arrived at school in an extremely emotionally-distressed state. Although C.R. is a small child who weighs approximately 30 pounds and is confined to a wheelchair, he becomes physically aggressive when distressed and is capable of inflicting injury on others by biting, scratching, and hitting. Upon arriving at school that day, C.R. physically struggled with school personnel, including Jobes, Brown, and Cherelus. Brown took C.R., still upset, in his wheelchair to Respondent's classroom, where he was placed in his classroom chair. C.R. attempted to grab, bite, and scratch Respondent, Jobes, and Brown, bit his own hands, and rubbed and scratched his own face, arms, and legs. Respondent left him in his chair and
he eventually calmed down. At that point, Respondent removed
C.R. from his chair and carried him to another classroom, where the rest of the class was engaged in instructional exercises. Thereafter, when Respondent carried C.R. back to her classroom,
C.R. again became very upset and bit and scratched her. At that point, Respondent notified the school administration and C.R.'s mother of the incident involving C.R. that morning. Assistant Principal Long visited Respondent's classroom to determine what had happened. As of 11 a.m. that day, C.R. was still seated in his classroom chair aggressively biting his own hands and rubbing and scratching his face, arms, and legs.24/ Respondent prepared and submitted an incident report detailing these events, and Brown, Jobes, and Cherelus, and another school staff member, Julie Weiss, signed and dated the report that same day.
Jobes testified she read the January 16, 2013, incident report before signing and dating it that same day. She stated that although she had signed the document without being under duress, she had questioned Respondent regarding its accuracy before signing it. Brown testified that she signed the January 16, 2013, incident report that day, but did not read it before she signed it.
It is undisputed that at some point in the day on January 16, 2013, Respondent and C.R. ended up on the floor of Respondent's classroom, with Respondent laying on top of C.R.
However, there is conflicting evidence regarding the time of day, sequence of events, and circumstances that led to this incident.
Jobes and Brown both testified that the events that led to Respondent and C.R. being on the floor with Respondent laying on top of C.R. occurred in the morning after C.R. came to school in an emotionally distressed state, and that Respondent had placed C.R. on the floor and laid on top of him to punish him for his aggressive behavior.
However, their testimony is contradicted by the version of events detailed in the January 16, 2013, incident report——which they both had signed and dated that same day, thus tacitly acknowledging its accuracy.
As discussed in greater detail below, the credible, persuasive evidence establishes that the incident during which Respondent and C.R. ended up on the floor actually occurred later that same day, and that afterward, C.R. was taken from the classroom to the school clinic and did not return to the classroom for the rest of the day. Had Brown and Jobes been correct regarding the time of day when the incident occurred,
C.R. would have been removed from the classroom during the morning. However, according to the January 16, 2013, incident report, C.R. was still in the classroom as of approximately 11
a.m. that day. Indeed, according to the incident report, Assistant Principal Long visited the classroom to investigate the
events that were detailed in the report. Had C.R. been removed from the classroom in the morning after the incident, Long would have discovered that when she visited the classroom.25/ Further, Respondent would have known that so would not have stated in the written incident report that C.R. was still in the classroom as of 11 a.m. that day.
It is undisputed that Jobes did not actually witness Respondent place C.R. on the floor. Jobes testified that when she looked over from another part of the classroom where she had been tending to other students, she saw C.R. face down on the floor with Respondent on top of him. Notwithstanding that by her own admission, Jobes did not witness the entire incident between Respondent and C.R., she nonetheless testified that Respondent held C.R. down on the floor for three to five minutes.26/
Brown claims to have witnessed the entire incident between Respondent and C.R. She testified that C.R. was acting aggressively, so to punish him, Respondent picked him up, flipped him around, placed him face-down on the floor, and laid on top of him for approximately 20 seconds as he gasped for breath.
As noted above, the credible, persuasive evidence establishes that the allegation regarding Respondent laying on top of C.R. arose from an incident that occurred later in the day on January 16, 2013, after lunch and after the incident that had happened earlier that day.
The credible evidence establishes that when C.R. returned to Respondent's classroom after having had lunch in the cafeteria under Jobes' and Brown's supervision, his face was red and he was scratching himself and squirming in his chair. Respondent became very concerned, from the previous experience that school year, that C.R. was again having an allergic reaction to something he had eaten. Respondent removed C.R. from his wheelchair in order to place him in his Rifton chair so that she could administer his epi-pen to counter any allergic reaction he might have been having.
Respondent is diabetic and wears an insulin pump strapped to her left arm. Respondent testified, credibly, that as she was removing C.R. from the wheelchair, he grabbed at her insulin pump. In an effort to prevent C.R. from pulling her insulin pump off of her arm, Respondent jerked her hand and arm backward, causing her to lose her balance. She fell to the floor with C.R. and landed on top of him. Respondent estimated that she and C.R. were in that position for perhaps five seconds,27/ at which point she scrambled off of C.R. and placed him in his Rifton chair. C.R. was then taken to the clinic to address his allergic symptoms and did not return to the classroom that day.
Respondent testified, credibly, that Brown did not witness the entire event because for part of it, she was in the
restroom with M.P., consistent with their established routine after the students returned from lunch.
The undersigned finds Jobes' and Brown's version of the incident unpersuasive and incredible.28/ Their testimony was imprecise, inconsistent, and directly contradicted by other credible evidence regarding the incident.
By contrast, Respondent's testimony regarding the incident was specific, precise, and detailed. The undersigned finds her account of the incident credible and persuasive.
Thus, Petitioner failed to prove the allegations in paragraph 13. of the Amended Administrative Complaint. Allegations Regarding Unspecified Students
Petitioner alleges, in paragraph 8. of the Amended Administrative Complaint, that Respondent "was observed grabbing students by the arm and forcefully pulling them to the ground." The Amended Administrative Complaint does not identify the students whom Respondent is alleged to have treated in such a manner.
Jobes testified that "one or two times" she had seen Respondent grab a student by the arm and pull that student to the ground in an effort to get the student to sit down. She could not recall which students she allegedly saw Respondent treat in that manner and she did not provide any detail regarding these alleged incidents. Her testimony was not corroborated by any
other competent evidence in the record and was too vague and lacking in detail to be deemed credible or persuasive.
Brown testified that on one occasion, Respondent pushed M.P. to make her walk faster, causing her to fall to the ground. Although Brown identified the specific student, she provided no temporal context or detail regarding the incident. Her testimony was confused and imprecise, so was neither credible nor persuasive.
Petitioner failed to prove the allegation in paragraph 8. of the Amended Administrative Complaint that Respondent grabbed students by the arm and forcefully pulled them to the ground.
Petitioner also generally alleges, in paragraph 8. of the Amended Administrative Complaint, that on occasion, Respondent would grab students by the neck to force them to look at their work. However, neither Brown nor Jobes identified any specific students to whom Respondent's alleged conduct was
directed or provided any detail or context in which these alleged incidents occurred, and their testimony was too vague and imprecise to be deemed credible or persuasive. Petitioner did not present any other competent substantial evidence to substantiate this allegation.
Respondent testified that at times, it was necessary for her to physically focus students' attention on their work.
At those times, she would place her hands on the student's head and turn the student's face down toward the desk so that the student could attend to his or her work. She testified that she did not grab students by the back of the neck or engage in any forceful techniques as she focused their attention on their work. Her testimony was credible and persuasive.
Thus, Petitioner failed to prove the allegation in paragraph 8. of the Amended Administrative Complaint that Respondent grabbed students by the neck and forced them to look at their work.
Petitioner also alleges, in paragraph 8. of the Amended Administrative Complaint, that "[i]n one incident, Respondent crumbled [sic] a student's paper into a ball before throwing it at the student." The student whom Respondent is alleged to have treated in this manner was not identified in the Amended Administrative Complaint.
Paragraph 8. specifically states that the incidents alleged therein occurred "shortly after the commencement of the school year in August 2012." However, the only evidence Petitioner presented in support of this allegation was the testimony of Cara Yontz, a paraprofessional assigned to Respondent's classroom in the 2011-2012 school year——a completely different school year than Respondent's actions alleged in the
Amended Administrative Complaint. Thus, Petitioner failed to present any evidence to substantiate this allegation in paragraph 8.
Even assuming that the reference in the Amended Administrative Complaint to the 2012-2013 school year was a drafting error and that Petitioner actually intended to allege that Respondent engaged in such conduct during the 2011-2012 school year, Petitioner still did not prove this allegation by credible, persuasive evidence.
Yontz testified that on one occasion, a student named "D." was having difficulty with his work and that twice, when he turned his work in to Respondent, she yelled at him, crumpled up his paper, and threw it back at him, causing him to cry. Petitioner did not present any other competent substantial evidence to support this allegation.
Respondent denied having thrown D.'s paper at him and testified, credibly, that she never had thrown anything at any student. The undersigned finds Respondent's testimony on this point credible and persuasive.
Thus, Petitioner failed to prove the allegation in paragraph 8. of the Amended Administrative Complaint that Respondent crumpled a student's work and threw it at him.
Petitioner also alleges in paragraph 8. that Respondent verbally abused unspecified students, making
statements such as "they're so stupid," and that she was "happy that God never gave her kids like them."
Petitioner did not present credible, persuasive evidence proving this allegation, and Respondent credibly testified that she had not, and would not, ever address a student in such a manner.
Failure to Provide Statement
On March 4, 2013, the Broward District Schools Police Department issued a Notice to Appear for Statement ("NTA") to Respondent, informing Respondent that an investigation regarding a reported incident had been initiated. The NTA informed Respondent that on March 11, 2013, she was required to appear at a designated location and provide a statement as part of the investigation. The NTA further informed her that a representative of her choice could be present during the statement and that her failure to appear on the scheduled date and to provide a statement would constitute gross insubordination and lead to disciplinary action up to and including termination.
Respondent is a member of the Broward Teacher's Union ("BTU") and was represented by Diane Watts, a field staff representative with BTU, in the investigation.
Watts had contact with Kathleen Andersen, a detective with the Broward District Schools Police Department regarding
scheduling the appointment and other matters with respect to Respondent's statement.
At some point before Respondent was to appear and provide her statement, Andersen called Watts to give her a "heads-up" that the investigation was "going criminal"——meaning that a criminal investigation was being commenced and that criminal charges may be filed against Respondent.
Watts testified, credibly, that when a matter "goes criminal," the BTU retains a lawyer to represent the member being investigated. At that point, BTU had not yet retained an attorney to represent Respondent in any investigation that may "go criminal." Under those circumstances, it is customary for the employee not to appear and provide a statement.
Watts testified, credibly, that she informed Andersen that under the circumstances, Respondent would not appear as scheduled on March 11, 2013, to provide the statement.
Watts understood Andersen to have agreed that, given the circumstances, Respondent was not required to appear and, in fact, she credibly testified that she believed Andersen had called her to give her a "heads-up" specifically so that she and Respondent would not make a wasted trip to appear at the location of the scheduled statement, only to find out there that the investigation had "gone criminal"——at which point, Watts
would have advised Respondent not to make a statement pending BTU's retention of a lawyer to represent her.
Based on her belief that she had an understanding with Andersen, Watts advised Respondent that she was not required to appear and provide a statement on March 11, 2013.
Therefore——specifically at Watts' direction and advice——Respondent did not appear and provide a statement on March 11, 2013.
At the final hearing, Andersen disputed that she had agreed with Watts that Respondent did not need to appear and provide a statement as directed in the Notice to Appear. Andersen testified that pursuant to Petitioner's Policy 4.9, Respondent was required to appear and provide a statement, and that she had not done so.29/
IV. Findings of Ultimate Fact
Petitioner seeks to suspend Respondent without pay and to terminate her employment as a teacher on the basis of just cause, pursuant to section 1012.33, Florida Statutes. The statute defines just cause to include immorality, misconduct in office, incompetency, gross insubordination; and being convicted of or found guilty of, or entering a plea of guilty of, regardless of adjudication of guilt, any crime involving moral turpitude. Here, Petitioner charges that just cause exists, on
each of these bases, to suspend Respondent without pay and terminate her employment.
As more fully addressed below, Petitioner bears the burden of proof, by a preponderance of the evidence, to establish each element of each offense with which Respondent is charged.
Further, 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.30/
For the reasons discussed in detail above, Petitioner failed to prove, by a preponderance of the competent substantial evidence, any of the allegations in the Amended Administrative Complaint, and therefore failed to prove any of the administrative charges stated in the Amended Administrative Complaint.
Petitioner asserts in Petitioner's Proposed Recommended Order that "Petitioner had a number of witnesses to testify to these various events. Respondent had none." This mischaracterizes the evidence presented in this case. Although Petitioner presented the testimony of four persons having personal knowledge of some of the incidents, for several of the allegations, Petitioner presented the testimony of only one witness who had personal knowledge of the alleged incidents, and, as discussed above, often that testimony was not credible. Even when Petitioner presented the testimony of more than one witness
regarding a particular allegation, as discussed above, often that testimony was inconsistent on significant details, calling into serious question the credibility and reliability of the testimony. Also, Respondent herself testified. Her testimony was clear, precise, credible, and persuasive, and she provided consistent, logical accounts of the incidents that gave rise to the allegations in the Amended Administrative Complaint.31/ In addition to her own testimony, Respondent presented the testimony of the mother of student J.M., who credibly supported Respondent's version of the incident giving rise to one of the allegations involving her daughter.
Here, the undersigned did not find the testimony of Cherelus, Yontz, Brown, or Jobes credible or persuasive on most of the matters about which they testified.
As discussed in detail above, in many instances their testimony was vague, unclear, or inconsistent with other testimony or evidence.
Moreover, it was abundantly clear that each of these paraprofessionals found Respondent difficult to work with because she was demanding, did not tolerate lax performance, and consistently reminded them that as teacher, she was in charge of the management of her classroom. It was apparent that each of them resented her frequent assertion of authority over them. Each of them had ample motive to be untruthful or to exaggerate
regarding certain events——such as those involving J.M. being placed in the restroom, C.R. and Respondent falling on the floor, and T.P. being fed by Respondent. In other instances——such as reclining M.P. in the Rifton chair or directing M.M. to retrieve her snack from the trash can——it is plausible to infer that the paraprofessionals misunderstood Respondent's actions and judged to be inappropriate, when, in fact, they were appropriate under the circumstances.
Another factor militating against the paraprofessionals' credibility is that each of them was a mandatory child abuse reporter under Florida law, each of them knew that, and each understood her legal duty. Nonetheless, most of the incidents alleged in the Amended Administrative Complaint were not reported until sometime after the incident is alleged to have occurred. In particular, Brown and Jobes first reported that Respondent had engaged in abusive behavior only after she had taken measures to address their classroom performance issues, including her requesting a meeting with the principal and holding her own meeting aimed at, again, addressing their unacceptable behavior and performance.
Petitioner focuses on a statement in Respondent's January 23, 2013, email thanking Brown and Jobes for their efforts as indicating that up to that point, Respondent and the paraprofessionals enjoyed a smooth working relationship and that
Respondent did not have any problems with their performance, and, in fact, was pleased with their performance. However, this position is contradicted by the strong evidence showing otherwise. Respondent's emails to the school administration dated December 1, 2012, and January 9, 10, and 23, 2013, particularly speak to the ongoing difficulty she was having with both paraprofessionals, even before they submitted statements alleging that she had abused students. Further, the testimony by Brown, Jobes, and Respondent shows that the relationship between Respondent and the paraprofessionals was not a smooth one.
In sum, the evidence establishes that the paraprofessionals were not reliable witnesses, and their testimony was neither credible nor persuasive. Conversely, Respondent's testimony was credible and persuasive.
Accordingly, Petitioner failed to prove, by a preponderance of the competent substantial evidence, that Respondent engaged in conduct during the 2011-2012 and 2012-2013 school years that violated Department of Education rules and school board policies, and, thus, constituted just cause to suspend Respondent without pay and terminate her employment.
Petitioner also has charged Respondent with gross insubordination for failure to appear and provide a statement to the Broward District Schools Police Department on March 11, 2013.
As discussed above, the credible, persuasive evidence establishes that Respondent did not appear and provide a statement to the Broward Schools Police Department specificially because she had been directed and advised by her BTU representative not to do so.
Further, even if Watts did not, in fact, have an understanding with Andersen that Respondent would not provide a statement, it is undisputed that Watts told Respondent that such an understanding existed so that she did not need to appear and provide a statement.
Thus, the credible, persuasive evidence establishes that Respondent did not intentionally refuse to appear and provide a statement, but, instead, simply and reasonably followed the advice and direction of her BTU representative, who had specifically told her not to appear and provide a statement.
Under these circumstances, it cannot be inferred that Respondent intentionally refused to obey a direct order,
reasonable in nature. Accordingly, the credible, persuasive evidence establishes that Respondent did not commit gross insubordination.
Based on the foregoing, it is determined that Petitioner failed to meet its burden to prove, by a preponderance of the competent substantial evidence, that Respondent engaged in conduct, alleged in the Amended Administrative Complaint, that
violates Department of Education rules and school board policies. Accordingly, Petitioner did not prove that just cause exists to suspend Respondent without pay and terminate her employment.
CONCLUSIONS OF LAW
Applicable Legal Standards
DOAH has jurisdiction over the parties to, and subject matter of, this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes (2015).
This proceeding, in which Petitioner seeks to suspend Respondent from her employment without pay and terminate her employment as a teacher, is brought pursuant to section 1012.33(1)(a), Florida Statutes; Florida Administrative Code Rules 6B-1.001, 6B-1.006 and 6A-10.081, and 6B-4.009 and 6A- 5.056; and unspecified "adopted school board rules." These statutes and rules are penal and therefore must be strictly construed, with ambiguities resolved in favor of the person charged with violating them. McCloskey v. Dep't of Fin. Servs.,
115 So. 3d 441 (Fla. 5th DCA 2013); Lester v. Dep't of Prof. & Occupational Reg., 348 So. 2d 923 (Fla. 1st DCA 1977). See also
Miami-Dade Cnty. Sch. Bd. v. Fleurantin, Case No. 13-4129 (Fla. DOAH July 29, 2014); Miami-Dade Cnty. Sch. Bd. v. Snow, Case No.
13-1177 (Fla. DOAH Mar. 31, 2014).
Respondent is an instructional employee, as that term is defined in section 1012.01(2). Petitioner has the authority
to suspend and terminate instructional employees pursuant to sections 1012.22(1)(f) and 1012.33(1)(a) and (6)(a).
To do so, Petitioner must prove, by a preponderance of the evidence, that Respondent committed the alleged violations, and that such violations constitute "just cause" for dismissal.
§ 1012.33(1)(a), (6), Fla. Stat.; McNeil 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).
As noted above, 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. Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1985); McKinney
v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v.
Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995).
Applicable Versions of Statutes and Rules
Sections 1012.33(1)(a) and (6) provide, in pertinent part, that instructional staff may be terminated during the term of their employment contract only for "just cause."
195. Section 1012.33(1)(a)32/ states:
Each person employed as a member of the instructional staff in any district school system shall . . . be entitled to and shall receive a written contract as specified in this section. All such contracts, except continuing contracts as specified in subsection (4), shall contain provisions for dismissal during the term of the contract only for just cause. Just cause includes,
but is not limited to, the following instances, as defined by rule of the State Board of Education: immorality, misconduct in office, incompetency, . . . gross insubordination, . . . or being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude.
Petitioner has charged that just cause exists, on each of these grounds, to suspend Respondent and terminate her employment.
As previously noted, Petitioner has charged Respondent with violations of rules 6B-1.001, 6B-1.006 and 6A-10.081, and 6A-5.056. Each of these rules was amended during the period of time in which Respondent's conduct is alleged to have occurred. The version of each of these rules that was in effect at the time of Respondent's conduct alleged to violate the rule applies to this proceeding. § 120.54(1)(f), Fla. Stat. ("[a]n agency may not adopt retroactive rules, including retroactive rules intended to clarify existing law, unless that power is expressly authorized by statute")33/; Miami-Dade Cnty. Sch. Bd. v. Diaz- Almarez, Case No. 12-3630 (Fla. DOAH July 30, 2013; Miami-Dade
Cnty. Sch. Bd. Oct. 30, 2013). See Anglickis v. Dep't of Prof'l Reg., 593 So. 2d 298, 300 (rule not in effect at time of conduct
giving rise to agency action could not have been violated).
Rule 6B-1.001, the Code of Ethics for the Education Profession, was adopted on July 6, 1982. Effective November 11, 2013, this rule was amended and transferred to rule 6A-10.080.
Because rule 6A-10.080 was not in effect at the time of Respondent's alleged conduct during the 2011-2012 and 2012-2013 school years, it does not apply to this proceeding. Rather, the version of rule 6B-1.001 adopted in 1982 applies to this proceeding.
Rule 6B-1.006, the Principles of Professional Conduct for the Education Profession, was adopted on December 29, 1998. Effective January 11, 2013, rule 6B-1.006 was amended and transferred to rule 6A-10.081. Accordingly, rule 6B-1.006, which was in effect during the 2011-2012 school year, governs Respondent's conduct alleged to have occurred during the 2011- 2012 school year, and also during the 2012-2013 school year prior to January 11, 2013. Therefore, Respondent's conduct alleged to have occurred on or after January 11, 2013, is governed by rule 6A-10.081.
"Misconduct in office" is defined in rule 6A-5.056.
This rule initially was adopted on April 5, 1983, and was substantially amended effective July 8, 2012. Respondent's conduct alleged to have occurred during the 2011-2012 school year is governed by the version of rule 6A-5.056 adopted in April 1983, and Respondent's conduct alleged to have occurred during the 2012-2013 school year is governed by the version of
rule 6A-5.056 that went into effect on July 8, 2012 (hereafter referred to as the "July 2012" rule).
Rule Violations Charged in the 2011-2012 School Year
The Amended Administrative Complaint contains six counts charging Respondent with conduct that is alleged to violate specific provisions of rule 6A-5.056. As discussed above, the version of rule 6A-5.056 adopted in 1983 applies to Respondent's conduct alleged to have occurred in the 2011-2012 school year. Each of these counts is addressed below.
Count 1: Immorality
In Count 1 of the Amended Administrative Complaint, Petitioner charges Respondent with immorality. The Amended Administrative Complaint cites only to rule 6A-5.056(1), the section defining immorality in the July 2012 version of the rule, as the basis for this charge. As discussed above, the July 2012 rule cannot be applied retroactively, so it is not applicable to conduct in which Respondent is alleged to have engaged in the 2011-2012 school year.
The 1983 version of rule 6A-5.056, section (2),34/
states:
Immorality is defined as conduct 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.
The Amended Administrative Complaint does not specifically cite the rule provision, subsection (2), that was in effect during the 2011-2012 school year. However, when the
rule was amended in July 2012, the language in subsection (2) of the rule defining immorality was not substantively amended.
Subsection (2) of the 1983 rule simply was renumbered as subsection (1) in the July 2012 rule. Case law holds that when an agency's incorrect citation to legal authority does not prejudice the Respondent, it should be treated as a scrivener's error rather than an outright failure to charge the Respondent under the applicable law. See Ag. for Health Care Admin. v.
Royce, Case No. 91-2811 (Fla. DOAH Jan. 18, 1995; Fla. AHCA
May 12, 1995); Youngker v. State, 215 So. 2d 318, 322 (Fla. 4th DCA 1968), superseded by statute on other grounds, Weaver v.
State, 981 So. 2d 508 (Fla. 4th DCA 1981)(erroneous citation is not fatal to the charge of an offense if the erroneous citation does not prejudice or mislead the Respondent). See also Seminole Cnty. Bd. of Cnty. Comm'rs v. Long, 422 So. 2d 938,
940 (Fla. 5th DCA 1982)(a complaint filed by an administrative agency is not required to fulfill the technical niceties of a pleading filed in a court of law, but must be specific enough to
inform the accused with reasonable certainty of the nature of the charge brought against him or her).
Here, because the rule's substantive language under which Respondent is charged did not change even though the incorrect version of the rule was cited in the charge, Respondent is not prejudiced or misled by the incorrect citation in the charge. Accordingly, notwithstanding Petitioner's pleading error, the undersigned finds Count 1 of the Amended Administrative Complaint legally sufficient to charge Respondent with immorality for conduct alleged in the 2011-2012 school year.
However, as discussed above, Petitioner failed to prove, by the preponderance of the competent substantial evidence, that Respondent engaged in conduct constituting immorality during the 2011-2012 school year.
To support a determination that a teacher's conduct constitutes immorality under rule 6A-5.056, the evidence must establish both that: (1) the teacher engaged in conduct
inconsistent with the standards of public conscience and good morals and (2) the conduct must have been sufficiently notorious
so as to bring disgrace or disrespect to the individual or the teaching profession and must impair the teacher's service in the
community. McNeill, 678 So. 2d at 477.
As previously discussed, Petitioner did not prove, by the preponderance of the competent substantial evidence, that
Respondent engaged in conduct inconsistent with the standards of public conscience and good morals.
Petitioner also failed to prove that Respondent's alleged conduct was sufficiently notorious so as to bring disgrace or disrespect to the teaching profession or impair Respondent's service in the community. Case law makes clear that to satisfy the "notoriety" element of an immorality charge, the conduct of the person charged must be widely and unfavorably known. St. Lucie Cnty. Sch. Bd. v. Contoupe, Case No. 13-0410 (Fla. DOAH Nov. 7, 2013; St. Lucie Cnty. Sch. Bd. Jan. 14, 2014); Miami-Dade Cnty. Sch. Bd. v. Diaz-Almarez, Case No. 12-3630 (Fla. DOAH July 30, 2013; Miami-Dade Cnty. Sch. Bd.
Oct. 30, 2013); Broward Cnty. Sch. Bd. v. Deering, Case No. 05- 2842, 2006 Fla. Div. Admin. Hear. LEXIS 367, at *13-14 (Fla. DOAH
July 31, 2006). Petitioner did not present evidence proving that Respondent's conduct was widely known, and, thus, "notorious." Further, even if Petitioner had shown that Respondent's conduct was "notorious," Petitioner did not present any competent, credible evidence showing that Respondent's
service in the community was impaired by any conduct in which she engaged. See McNeill, 678 So. 2d at 477-78.
Accordingly, Petitioner failed to establish that just cause exists, on the basis of immorality, to suspend Respondent
and terminate her employment for conduct in which she is alleged to have engaged in the 2011-2012 school year.
Count 2 - Misconduct in Office
In Count 2 of the Amended Administrative Complaint, Petitioner charges that Respondent engaged in misconduct in office as provided in rule 6A-5.056(2)(a) and (b). As the specific grounds for this charge, Petitioner charges Respondent with having violated the Code of Ethics of the Education Profession as adopted in rule 6B-1.001, and the Principles of Professional Conduct for the Education Profession in Florida, as adopted by rule 6A-10.081. With respect to rule 6A-10.081, Petitioner specifically charges Respondent with having violated subsections (3)(a), (e), (f), and (g).
Count 2 cites the July 2012 rule defining "misconduct in office." However, as previously discussed, that version of the rule does not apply to Respondent's conduct alleged to have occurred in the 2011-2012 school year. Rather, the version of rule 6A-5.056 adopted in 1983——specifically, subsection (3) of the rule——applies to that conduct. The rule states:
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.
Although the Amended Administrative Complaint does not cite to the 1983 version of the rule defining "misconduct in office," as discussed above, the language of rule 6A-5.056 was not amended in the 2012 version of the rule, but was simply renumbered as subsections (2)(a) and (b). Therefore, the incorrect citation to rule 6A-5.056(3) in the Amended Administrative Complaint amounts to a scrivener's error rather than an outright failure to charge Respondent with misconduct in office.
Similarly, even though rule 6A-10.081 was not in effect during the 2011-2012 school year, the specific provisions with which Respondent has been charged with violating were codified in rule 6B-1.006 and therefore were in effect during the 2011-2012 school year. Thus, Petitioner's citation to the incorrect version of the rule is again tantamount to a scrivener's error rather than a failure to charge Respondent with having violated these rule provisions.
However, as discussed above, Petitioner did not prove that Respondent engaged in conduct constituting misconduct in office during the 2011-2012 school year. Petitioner failed to prove that Respondent engaged in conduct that violated the Code of Ethics of the Education Profession as adopted in rule 6B- 1.001, or the Principles of Professional Conduct for the Education Profession in Florida as adopted in rule 6B-1.006, and,
thus, did not prove that Respondent violated either of these rules in a manner so serious as to impair her effectiveness in the school system.
Accordingly, Petitioner failed to prove that just cause exists, on the basis of misconduct in office as charged in Count 2 of the Amended Administrative Complaint, to suspend Respondent and terminate her employment on the basis of conduct in which she is alleged to have engaged in the 2011-2012 school year.
Count 3 – Misconduct in Office
Count 3 of the Amended Administrative Complaint charges that Respondent engaged in misconduct in office pursuant to rule 6A-5.056(2)(c),(d), and (e). These specific provisions were added to rule 6A-5.056 in July 2012, so were not in effect during the 2011-2012 school year.35/ As previously discussed, these rule provisions cannot be retroactively applied to Respondent's conduct alleged to have occurred in the 2011-2012 school year.
The charge in Count 3 specifically cites to and relies on language that was not codified in the 1983 version of rule 6A-
5.056. Therefore, Petitioner's failure to cite to the correct version of the rule cannot be considered a mere scrivener's error. Applying the new rule provisions would have the effect of retroactively charging Respondent under the July 2012 rule for
conduct alleged to have occurred during the 2011-2012 school year, in violation of section 120.54(1)(f). Thus, Count 3 is legally deficient with respect to charging Respondent with misconduct in office on the basis conduct in which she is alleged to have engaged during the 2011-2012 school year.
Count 3 also alleges, as a basis for the misconduct in office charge, that Respondent's acts were a violation of the "adopted school board rules." However, this Count does not cite any specific "adopted school board rules", so fails to provide Respondent with adequate notice regarding which specific school board rules she is charged with violating. As such, Count 3 is legally insufficient to charge Respondent with having violated school board rules on the basis of conduct alleged to have occurred during the 2011-2012 school year.36/ See Schimenti v.
Sch. Bd. of Hernando Cnty., 73 So. 3d 831 (Fla. 5th DCA 2011); Pilla v. Sch. Bd. of Dade Cnty., 655 So. 2d 1312 (Fla. 3d DCA
1995)(when a school board brings a proceeding to discharge a teacher from employment, the teacher must have fair notice and an opportunity to be heard on each of the charges).
Additionally, Petitioner did not present credible, persuasive evidence, as discussed above, showing that Respondent violated "adopted school board rules" or engaged in behavior disruptive to the learning environment or behavior that reduced her or her colleagues' ability to effectively perform duties.
Accordingly, Petitioner failed to prove that just cause exists, on the basis of misconduct in office as charged in Count 3 of the Amended Administrative Complaint, to suspend Respondent and terminate her employment on the basis of conduct in which she is alleged to have engaged in the 2011-2012 school year.
Count 4 - Incompetency
In Count 4 of the Amended Administrative Complaint, Petitioner charges with incompetency under rule 6A-5.056(3)(a) and (b). These specific rule provisions went into effect in July 2012, and therefore do not apply to Respondent's conduct alleged to have occurred in the 2011-2012 school year. See
§ 120.54(1)(f), Fla. Stat.
The Amended Administrative Complaint does not charge Respondent under the version of rule 6A-5.056 defining
incompetency that was in effect during the 2011-2012 school year. The rule states in pertinent part:
Incompetency is defined as inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity. Since incompetency is a relative term, an authoritative decision in an individual case may be made on the basis of testimony by members of a panel of expert witnesses appropriately appointed from the teaching profession by the Commissioner of Education. Such judgment shall be based on a preponderance of evidence showing the existence of one (1) or more of the following:
Inefficiency: (1) repeated failure to perform duties prescribed by law . . . ;
repeated failure on the part of a teacher to communicate with and relate to children in the classroom, to such an extent that pupils are deprived of minimum educational experience; or (3) repeated failure on the part of an administrator or supervisor to communicate with and relate to teachers under his or her supervision to such an extent that the educational program for which he or she is responsible is seriously impaired.
(b) Incapacity: (1) lack of emotional stability; (2) lack of adequate physical ability; (3) lack of general educational background; or (4) lack of adequate command of his or her area of specialization.
In the version of rule 6A-5.056 adopted in July 2012, the definition of "incompetency" was substantively amended in several key respects. Specifically, the types of conduct constituting "inefficiency" in subsection (3)(a) were significantly revised, new types of conduct were added to the definition of "inefficiency," and the requirement that such conduct be "repeated" was eliminated.
These amendments substantially revised the rule to add to the types of conduct that may be sanctioned under the rule and relaxed the conditions under which incompetency may be found.
For the reasons discussed above, these new rule provisions cannot be retroactively applied to Respondent's conduct alleged to have occurred in the 2011-2012 school year. Thus, Petitioner's failure to charge Respondent under the 1983 version of
rule 6A-5.056 is fatal to its charge in Count 4 that Respondent's alleged conduct during the 2011-2012 school year constituted incompetency due to inefficiency.
Count 4 also charges, pursuant to rule 6A-5.056(3)(b), that Respondent's conduct constituted incompetency due to "incapacity." The July 2012 rule did not substantively amend the definition of "incapacity" that was codified in the 1983 version of the rule. Therefore, as discussed above, despite Petitioner's failure to charge Respondent with incompetency due to incapacity under the 1983 version of the rule, this portion of the charge in Count 4 does not have the effect of imposing new rule provisions and conditions to conduct alleged to have occurred in the 2011- 2012 school year, so does not suffer from the same legal defect as the portion of the charge brought under rule 6A-5.056(3)(a).
However, in any event, Petitioner did not prove that Respondent's conduct in the 2011-2012 school year constituted incompetency under rule 6A-5.056. Petitioner did not present any evidence showing that Respondent was inefficient in performing her duties prescribed by law. In fact, the persuasive evidence showed that Respondent was considered a good teacher who had no record of unsatisfactory performance of her teaching duties. Petitioner also failed to prove that Respondent was incompetent due to lack of capacity. The credible, persuasive evidence did not show that Respondents lacked emotional stability, and
Petitioner presented no evidence showing that she lacked the adequate physical ability, educational background, or command of her area of specialization.
Accordingly, Petitioner failed to establish that just cause exists, on the basis of incompetency as charged in Count 4 of the Amended Administrative Complaint, to suspend Respondent and terminate her employment on the basis of conduct in which she is alleged to have engaged in the 2011-2012 school year.
Count 5 - Gross Insubordination
In Count 5, Petitioner charges Respondent with gross insubordination under rule 6A-5.056(4) because she did not appear on March 11, 2013, and provide a statement to the Broward District Schools Police Department regarding the investigation regarding conduct in which she was alleged to have engaged in the 2012-2013 school year.
Count 5 charges Respondent with gross insubordination under the July 2012 version of the rule. This version was substantially amended from the 1983 rule.
The 1983 version of the rule defined "gross insubordination" as "a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority."
In the July 2012 version of the rule, the requirement that the conduct be "constant or continuing" was removed, thus
relaxing the circumstances under which gross insubordination may be found. As previously discussed, the 2012 version of the rule does not apply to Respondent's conduct alleged to have occurred in the 2011-2012 school year, and Petitioner failed to charge Respondent under the version of the rule in effect during the 2011-2012 school year.
Further, Petitioner did not present any evidence showing that the statement that Respondent was scheduled to provide on March 11, 2013, would have addressed conduct in which she was alleged to have engaged in the 2011-2012 school year. In fact, the evidence established that Petitioner had previously conducted an investigation regarding Respondent's conduct alleged to have occurred in the 2011-2012 school year and had determined that there was an insufficient factual basis on which to take disciplinary action.
Thus, Petitioner did not prove, by competent substantial evidence, that Respondent's refusal to appear and provide a statement on March 11, 2013, constituted gross insubordination with respect to any conduct in which Respondent is alleged to have engaged during the 2011-2012 school year. Count 6 – Crimes Involving Moral Turpitude
In Count 6 of the Amended Administrative Complaint, Petitioner charges Respondent with "crimes involving moral turpitude" pursuant to rule 6A-5.056(8), which was adopted in
July 2012. As previously discussed, because section (8) of
rule 6A-5.056 was not in effect during the 2011-2012 school year, this provision cannot be retroactively applied to Respondent's conduct alleged to have occurred in the 2011-2012 school year.
Petitioner did not charge Respondent under the 1983 version of rule 6A-5.056 that was in effect during the 2011-2012 school year.
The language in the July 2012 version of the
rule identifies "crimes involving moral turpitude" as consisting of offenses specifically enumerated in section 1012.315 and other crimes specifically enumerated in the rule.
Section 1012.315(1)(kk) specifically enumerates child abuse, aggravated child abuse, or neglect of a child.37/
The 1983 version of the rule defines "moral turpitude" as follows:
(6) Moral turpitude is a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.
Although the 1983 version of the rule does not expressly identify child abuse as constituting "moral turpitude" for purposes of violating the rule, case law decided under that version of the rule makes clear that child abuse is considered to
constitute "moral turpitude" under the rule. See Miami-Dade
Cnty. Sch. Bd. v. Payne, Case No. 00-2668 (Fla. DOAH Oct. 19, 2000; Miami-Dade Cnty. Sch. Bd. Feb. 20, 2001).
Accordingly, even though the version of the rule defining "moral turpitude" under which Petitioner charges Respondent was substantially amended from the version in effect at the time of her alleged conduct during the 2011-2012 school year, child abuse constituted "moral turpitude" during that time period, so Count 6 provides adequate notice of the charge against Respondent for this time period.
However, under any circumstances, Petitioner did not prove, by a preponderance of the competent substantial persuasive evidence, that Respondent engaged in conduct constituting a crime of moral turpitude during the 2011-2012 school year.
Accordingly, Petitioner failed to prove that just cause exists to suspend Respondent without pay and terminate her employment on the basis of moral turpitude for conduct alleged to have occurred during the 2011-2012 school year.38/
Rule Violations Charged in the 2012-2013 School Year
The version of rule 6A-5.056 adopted in July 2012 applies to Respondent's conduct alleged to have occurred in the 2012-2013 school year.
As discussed above, the Amended Administrative Complaint contains six counts charging Respondent with conduct
that violates specific provisions of rule 6A-5.056. Each of these counts is addressed below.
Count 1 - Immorality
Rule 6A-5.056(1) defines "immorality" as "conduct that is inconsistent with the standards of public conscience and good morals. It is conduct that brings the individual concerned or the education profession into public disgrace or disrespect and impairs the individual's service in the community."
For the reasons discussed above, Petitioner did not prove that Respondent engaged in conduct during the 2012-2013 school year that constitutes immorality.39/
Count 2 – Misconduct in Office
In Count 2 of the Amended Administrative Complaint, Petitioner charges Respondent with "misconduct in office" under the July 2012 version of rule 6A-5.056——specifically under subsections (2)(a) and (b) of the rule. The rule provides in pertinent part:
“Misconduct in Office” means one or more of the following:
A violation of the Code of Ethics of the Education Profession in Florida as adopted in Rule 6A-10.080, F.A.C.;
A violation of the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6A- 10.081, F.A.C.[.]
Rule 6A-10.080, which is referenced in rule 6A-5.056,
states:
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.
Rule 6A-10.081, also referenced in rule 6A-5.056, provides in pertinent part:
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.
Shall not harass or discriminate against any student on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition, sexual orientation, or social and family background and shall make reasonable effort to assure that each student is protected from harassment or discrimination.
For the reasons discussed above, Petitioner did not prove, by a preponderance of the competent substantial evidence, that Respondent engaged in conduct that violated rules 6A-5.056, 6A-10.080, or 6A-10.081 during the 2012-2013 school year.
Accordingly, Petitioner did not prove that just cause exists, as charged in Count 2 of the Amended Adminstrative Complaint, to suspend Respondent without pay and terminate her employment on the basis of misconduct in office during the 2012- 2013 school year.
Count 3 – Misconduct in Office
In Count 2 of the Amended Administrative Complaint, Petitioner charges Respondent with misconduct in office under rule 6A-5.056(2)(c), (d), and (e). These provisions define misconduct in office to include "(2)(c) [a] violation of the adopted school board rules; (d) [b]ehavior that disrupts the student's learning environment; or (e) [b]ehavior that reduces
the teacher's ability or his or her colleagues' ability to effectively perform duties."
Count 3 of the Amended Administrative Complaint does not identify the specific adopted school board rules that Petitioner claims Respondent violated. As such, it fails to provide Respondent with legally sufficient notice as to the rules she is charged with having violated, and, it also fails to inform the undersigned regarding the specific school board rules that are at issue in this proceeding.
However, in any event, Petitioner failed to prove, by the preponderance of the competent substantial evidence, that Respondent engaged in conduct that constituted misconduct in office by having violated adopted school board rules, engaged in behavior that disrupted the students' learning environment, or engaged in behavior that reduced her or her colleagues' ability to effectively perform their duties during the 2012-2013 school year.
Accordingly, Petitioner did not prove that just cause exists, as charged in Count 3 of the Amended Adminstrative Complaint, to suspend Respondent without pay and terminate her employment on the basis of misconduct in office during the 2012- 2013 school year.
Count 4 – Incompetency
Petitioner charges Respondent with incompetency under the July 2012 version of rule 6A-5.056(3)(a) and (b). These provisions state:
"Incompetency" means the inability, failure or lack of fitness to discharge the required duty as a result of inefficiency or incapacity.
"Inefficiency" means one or more of the following:
Failure to perform duties prescribed by law;
Failure to communicate appropriately with and relate to students;
Failure to communicate appropriately with and relate to colleagues, administrators, subordinates, or parents;
Disorganization of his or her classroom to such an extent that the health, safety or welfare of the students is diminished; or
Excessive absences or tardiness.
"Incapacity" means one or more of the following:
Lack of emotional stability;
Lack of adequate physical ability;
Lack of general educational background; or
Lack of adequate command of his or her area of specialization.
For the reasons discussed above, Petitioner failed to prove by a preponderance of competent substantial evidence that Respondent engaged in conduct constituting incompetency during the 2012-2013 school year.
Accordingly, Petitioner did not prove that just cause exists, as charged in Count 4 of the Amended Adminstrative Complaint, to suspend Respondent without pay and terminate her employment on the basis of incompetency during the 2012-2013 school year.
Count 5 - Gross Insubordination
Count 5 of the Amended Administrative Complaint charges Respondent with gross insubordination. The July 2012 version of rule 6A-5.056(4) defines "gross insubordination" as the intentional refusal to obey a direct order, reasonable in
nature, and given by and with proper authority; misfeasance, or malfeasance as to involve failure in the performance of the required duties." Fla. Admin. Code R. 6A-5.056(4)(emphasis added).
As previously discussed, the credible, persuasive evidence establishes that Respondent did not intentionally refuse to obey an order, reasonable in nature.
Accordingly, the credible, persuasive evidence establishes that Respondent did not commit gross insubordination
by not providing a statement to the Broward County Schools Police Department on March 11, 2013.
Further, the credible, persuasive evidence establishes that at that time, BTU had not yet retained a lawyer to represent Respondent in connection the investigation into her alleged conduct.
Section 120.62(2) states: "[a]ny person compelled to appear, or who appears voluntarily, before any presiding officer or agency in an investigation or in any agency proceeding has the right, at his or her own expense, to be accompanied, represented, and advised by counsel or by other qualified representative."
Under the plain language of section 120.62(2), Respondent was entitled to be accompanied, represented, and advised by counsel in the investigation being conducted by the Broward Schools Police Department. Accordingly, she could not lawfully be compelled by Petitioner, through its Police Department, to appear and make a statement without having counsel accompany, represent, and advise her.
In Manatee County School Board v. Raven, under
circumstances very similar to those present in this case, the administrative law judge concluded that a teacher who had been ordered to appear and provide a statement to the school district's Office of Professional Standards had not engaged in conduct constituting gross insubordination by refusing to answer
questions during an interview without having his lawyer present, and by later refusing to answer questions at the specific advice of his attorney. Manatee Cnty. Sch. Bd. v. Raven, Case No. 07-
3924 (Fla. DOAH Feb. 8, 2008; Manatee Cnty. Sch. Bd. Apr. 9, 2008). The school board rejected this conclusion and terminated the teacher on the basis of just cause due to gross insubordination. On appeal, the court reversed the school board's final order terminating the teacher, holding that because he had been compelled to appear before the school board in an investigation, he was entitled under section 120.62(2) to be accompanied, represented, and advised by counsel during the interview. Raven v. Manatee Cnty. Sch. Bd., 32 So. 3d 126, 130 (Fla. 2d DCA 2009).40/
At the time Respondent's statement was scheduled, BTU had not yet retained a lawyer to represent her, so Respondent was not accompanied, represented, or advised by counsel——to which she was entitled under section 120.62(2). Thus, under Raven,
Respondent cannot be deemed to have committed gross insubordination for not providing a statement. See also Cropsey
v. Sch. Bd., 19 So. 3d 351, 356 (teacher's failure to provide statement in disciplinary investigation at advice of counsel was reasonable and therefore did not constitute gross insubordination).41/
It is concluded that Respondent did not engage in conduct constituting gross insubordination, so just cause does not exist on that basis to suspend Respondent without pay and terminate her employment.
Count 6 – Crimes Involving Moral Turpitude
In Count 6 of the Amended Administrative Complaint, Petitioner charges Respondent with having engaged in conduct constituting "crimes involving moral turpitude" under rule 6A- 5.056(8). Specifically, Petitioner charges that "Respondent's acts are defined as a violation of one or more of the offenses listed in Section 1012.315, Florida Statutes[,] or in the Rule."
Rule 6A-5.056(8) provides:
"Crimes involving moral turpitude" means offenses listed in Section 1012.315, F.S., and the following crimes:
Section 775.085, F.S., relating to evidencing prejudice while committing offense, if reclassified as a felony.
Section 782.051, F.S., relating to attempted felony murder.
Section 782.09(1), F.S., relating to killing of unborn quick child by injury to mother.
Section 787.06, F.S., relating to human trafficking.
Section 790.166, F.S., relating to weapons of mass destruction.
Section 838.015, F.S., relating to bribery.
Section 847.0135, F.S., relating to computer pornography and/or traveling to meet a minor.
Section 859.01, F.S., relating to poisoning of food or water.
Section 876.32, F.S., relating to treason.
An out-of-state offense, federal offense or an offense in another nation, which, if committed in this state, constitutes an offense prohibited under Section 1012.315(6), F.S.
As previously discussed, Petitioner does not specifically identify which of the 52 crimes in Section 1012.315 in which it alleges Respondent engaged. However, because the Amended Administrative Complaint alleges that Respondent was criminally charged with felony child abuse for conduct she was alleged to have committed in the 2012-2013 school year, the undersigned is able to infer that Petitioner intended to charge Respondent with child abuse under section 1012.315(1)(kk).
For the reasons discussed above, Petitioner did not prove, by a preponderance of the competent substantial evidence, that Respondent engaged in conduct that constitutes "crimes of moral turpitude" as defined in rule 6A-5.056(8).
Further, section 1012.33 expressly requires, for just cause to exist, that the person be "convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude." Here, Petitioner
presented no evidence whatsoever showing that Respondent was convicted or found guilty of, or entered a plea of guilty to, a crime involving moral turpitude.
Accordingly, Petitioner did not prove that just cause exists to suspend Respondent without pay and terminate her employment on the basis of Respondent having engaged in conduct constituting "crimes involving moral turpitude" in the 2012-2013 school year.
Conclusion
For the reasons addressed herein, Petitioner did not meet its burden to show, by a preponderance of the competent substantial evidence, that Respondent engaged in conduct constituting just cause, as defined in section 1012.33 and the 1983 and July 2012 versions of rule 6A-5.056, to suspend her without pay and terminate her employment as a teacher.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Broward County School Board, enter a final order dismissing the Amended Administrative Complaint against Respondent; reinstating Respondent's employment as a teacher; and awarding Respondent back pay for the period of her suspension, less the amount of back pay that would be owed for the period commencing on November 6, 2013, and ending on January 23, 2014.42/
DONE AND ENTERED this 9th day of October, 2015, 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 9th day of October, 2015.
ENDNOTES
1/ See paragraphs 30 and 31, infra, addressing the significance of the timing of this email from Respondent to Gundling and Hollingsworth.
2/ In the December 1, 2011, email to Gundling and Hollingsworth, Respondent reported that Cherelus had screamed at student D.N. and pulled her hair.
3/ Cherelus and Yontz were "mandatory reporters" required by Florida law to report child abuse, and they were aware of that duty. Their failure to report that Respondent engaged in abusive acts, at the time they claimed such acts occurred, calls their credibility into question.
4/ When Petitioner moved to amend the Administrative Complaint, it attached a copy of the Amended Administrative Complaint, so Respondent was on notice that Petitioner intended to add allegations regarding Respondent's conduct in the 2011-2012 school year. At that time, Respondent did not object but, instead, was granted a continuance to enable her to prepare to meet the newly-added allegations. On December 5, 2014, only three days before the final hearing, Respondent filed a Motion to Strike Allegations ("Motion"), seeking to strike paragraphs 5 through 8 of the Amended Administrative Complaint on the ground
that Petitioner did not follow its own policies before filing administrative charges against her. Because the Motion was filed less than seven days before commencement of the final hearing, Petitioner did file a written response before commencement of the final hearing. At the final hearing, the undersigned advised that she would rule on the Motion in this Recommended Order.
Having fully considered this matter, the undersigned denies the Motion. Respondent had the opportunity to raise such objections in its written response to Petitioner's Motion to Amend Administrative Complaint, but it did not do so, instead conceding that Petitioner was entitled to amend the Administrative Complaint and requesting a continuance. Under these circumstances, it is determined that Respondent waived any objections she may have had.
5/ Yontz's testimony on this point is illogical, given that jerking D.N.'s head backward would necessarily move her face upward so she would be unable to look down at the work on her desk.
6/ Respondent was a credible, persuasive witness. Her testimony was clear and precise, and she provided consistent, detailed, and logical accounts of the incidents that gave rise to the allegations in the Amended Administrative Complaint.
7/ Yontz's December 15, 2011, written statement also was admitted into evidence.
8/ Yontz did not testify that J.M. wet her pants on that particular day, but, rather, that J.M. was being punished for having wet her pants the previous day.
9/ The lack of testimony by Cherelus about this incident is significant. Cherelus was in Respondent's classroom that day and went to the clinic to bring clothing for J.M. to change into, so would have known if J.M. had been confined to the restroom the entire day. Also of note is that Petitioner did not present testimony from any other teachers confirming that Respondent's students used their classroom bathrooms that day.
10/ Yontz's hearing testimony is inconsistent with the information she gave to Maureen McLaughlin and reported to Broward County Sheriff's Office Child Investigation Detective Emily Halaby. The narrative in the Investigative Summary, which shows Yontz as the source of the information giving rise to the investigation, states in pertinent part: "[t]oday (12/15/11), Ms. Tersigni hit [J.] on the face in an open hand slap." Due to this and other inconsistencies in Yontz's testimony, she was not a credible witness.
11/ Cherelus prepared and submitted a memorandum, dated December 16, 2011, in which she stated that as she was walking
J.M. to Lisa Modafferi's classroom, J.M. pointed to the right side of her head, made a pulling gesture, said "Ms. T. pull," and pointed to her glasses. After she submitted the memorandum, she was transferred from Respondent's classroom to another classroom.
12/ McLaughlin also testified that Yontz told her about another alleged incident involving "a student" being confined to the restroom for an hour the day after urinating in her pants. McLaughlin had no personal knowledge of this incident, so to the extent Petitioner offered McLaughlin's testimony to
prove that the incident occurred, it is hearsay. However, it is noteworthy that McLaughlin's account of Yontz's report to her on December 15, 2011, directly contradicts Yontz's hearing testimony that J.M. was confined to the restroom the entire school day.
13/ As previously noted, an investigation was conducted of this and other alleged instances of abusive behavior by Respondent in the 2011-2012 school year. Respondent was not criminally charged in connection with these alleged incidents, and, at that time, Petitioner did not pursue any disciplinary action against Respondent.
14/ Although Brown's testimony is based on hearsay, it supplements Respondent's testimony.
15/ Petitioner proffered, for admission into evidence, an Investigative Summary ("IS") of an investigation into allegations regarding this incident conducted by Broward County Sheriff's Office Child Protective Investigator John Joseph. Mr. Joseph did not testify at the hearing, and the witness through whom Petitioner sought to have the IS admitted did not conduct the investigation and had no personal knowledge of the alleged incident. Thus, the IS is hearsay that is not supported by any competent substantial evidence in the record and was not admitted into evidence.
16/ Brown and Jobes had worked together with another ESE teacher for several years, and Respondent persuasively testified that neither paraprofessional was particularly happy with how Respondent managed her classroom.
17/ In an attachment to a January 10, 2013, email sent to the Principal Hollingsworth, Assistant Principal Long, and ESE Supervisor Bloome, Respondent documented that on many occasions, Brown failed to follow through on assigned tasks, endangered
students' safety, and verbally lashed out when Respondent confronted her about these issues.
18/ The music teacher, Angela Love Callahan, testified that Respondent spoke to Brown in what she considered a "disrespectful" manner. On cross-examination, Callahan conceded that she had no knowledge whatsoever of the previous incident involving C.R. while he was left in Brown's care. In any event, this incident highlights the tense relationship that existed between Respondent and Brown, and it evidences that Respondent was not pleased with Brown's performance, even before Brown filed a statement alleging that Respondent abused her students.
19/ Long could not recall whether Jobes spoke to her that same day, or at some later time, regarding the alleged incident involving T.P.
20/ Brown and Jobes were "mandatory reporters" required by Florida law to report child abuse. Both claimed that they did not previously report Respondent's behavior because they were afraid they would lose their jobs and because they were afraid of Respondent's husband, an officer with the local police department. The undersigned finds this explanation incredible and unpersuasive. As discussed below, the persuasive, credible evidence shows that it is more likely that they filed allegations against Respondent because of their poor working relationship with her and to retaliate for her complaints about their job performance and her repeated efforts to require them to comply with her classroom management policies.
21/ This is consistent with Respondent's detailed statement submitted on January 25, 2015, in response to Brown's and Jobes' verbal allegations made to Assistant Principal Long. In her statement, Respondent explained that T.P. often screamed and retched when the students went to the cafeteria for lunch, and that T.P.'s father had directed her to try to get him to eat and had told her that T.P. exhibited similar behavior at home.
22/ The Rifton chair has padding on the back, has arm rests, and provides better support than a conventional classroom chair.
Respondent found that the Rifton chair was helpful to M.P. because she was able to use the arm rests to independently get up from, and sit down in, the chair.
23/ Petitioner did not identify any specific statute, rule, policy, or standard that expressly or implicitly prohibits such use of a Rifton chair.
24/ The incident report from earlier in the day on January 16, 2013, was completed at approximately 11 a.m., and it was signed and dated that same day by both Jobes and Brown. The evidence establishes that at that point, C.R. had not yet gone to lunch and had not left school for the day.
25/ Long did not testify that C.R. had been removed from Respondent's classroom when she arrived after Respondent notified her of the incident with C.R. that morning.
26/ Jobes' testimony is simply not credible. See note 27, infra. Further, her testimony sharply conflicts with that of Brown, who estimated that Respondent was on top of C.R. for approximately 20 seconds.
27/ Respondent testified, credibly, that as part of her insulin pump system, she has a large insulin device in her abdomen, so that she would be unable to lay face-down on top of anyone for an extended time; doing so would place an extreme amount of pressure on the insulin pump and metal centers in her abdomen, causing her pain.
28/ The undersigned finds incredible and unpersuasive Jobes' and Brown's testimony that the January 16, 2013, incident report was inaccurate. Although there was no attestation on the report, the report was created contemporaneously with the incident, and they both signed the report that day. The undersigned finds it more believable that, in retaliation for Respondent requesting that Brown be removed from her classroom and because Jobes also had a difficult working relationship with Respondent, Brown and Jobes subsequently prepared and submitted statements that were inconsistent with the January 16, 2013, incident report.
29/ No evidence was presented that Petitioner subsequently attempted to secure Respondent's statement after BTU retained a lawyer to represent her, and, in any event, the gross insubordination charge in the Amended Administrative Complaint is based solely on her failure to provide a statement as scheduled on March 11, 2013.
30/ See paragraph 196, infra.
31/ Notably, Petitioner's cross examination of Respondent mostly consisted of questions aimed at the state of her relationship with the paraprofessionals; she was asked very few questions regarding her account of the incidents alleged in the Amended Administrative Complaint.
32/ The version of section 1012.33 in effect at the time of Respondent's conduct alleged to constitute just cause for suspension and termination applies in this proceeding. For conduct alleged to have occurred in the 2011-2012 school year, the 2011 version of section 1012.33 applies. For conduct alleged to have occurred in the 2012-2013 school year, the 2012 version of section 1012.33 applies. Section 1012.33 was not amended during the 2012 legislative session, so, as a practical matter, the statutory definition of "just cause" is the same for both school years.
33/ Here, the statutes do not authorize retroactive application of the new rules to conduct alleged to have occurred before these rules went into effect.
34/ In the 1983 version of rule 6A-5.056, "immorality" was defined in subsection (2).
35/ The 1983 version of rule 6A-5.056 did not contain these or any similar provisions in the definition of "misconduct in office."
36/ Because the Amended Administrative Complaint and Petitioner's Proposed Recommended Order both fail to identify the specific school board rules that alleges Respondent is alleged to have violated, the ALJ is unable to find facts or draw legal conclusions regarding whether such violations occurred.
37/ Count 6 of the Amended Administrative Complaint charges that "Respondent's acts constitute one or more of the offenses listed in Section 1012.315 . . . ." This statute lists 52 different criminal offenses. The Amended Administrative Complaint alleges, in paragraph 16, that "Respondent was charged with felony child abuse by the State Attorney and is awaiting trial." Therefore, although Count 6 of the Amended Administrative Complaint fails to identify a specific criminal offense that Respondent is alleged to have committed, the undersigned infers that Petitioner intended to charge Respondent with child abuse, which is prohibited under section 827.03, Florida Statutes.
38/ Section 1012.33 states in pertinent part: "[j]ust cause includes, but is not limited to, the following instances, as defined by rule of the State Board of Education: . . . being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude." The statute's plain language expressly requires that the person be convicted or found guilty of a crime involving moral turpitude, or pled guilty to a crime involving moral
turpitude. Here, Petitioner presented no evidence showing that Respondent was convicted or found guilty of, or entered a guilty plea to, such a crime.
39/ See paragraphs 209 through 211, supra.
40/ After the court issued its opinion in Raven, the case was remanded to the school board, which entered an order incorporating the court's holding and concluding that Raven did not engage in gross insubordination by refusing to participate in the school board's investigation without being accompanied, represented, and advised by an attorney. Manatee Cnty. Sch. Bd. v. Raven, Case No. 07-3924 (Fla. DOAH Feb. 5, 2008; Manatee Cnty. Sch. Bd. March 22, 2010).
41/ On the basis of section 120.62(2), Raven, and Cropsey, Petitioner's statement in its Proposed Recommended Order that "the law requires an employee to appear for a statement" is correct.
42/ On November 6, 2013, pursuant to Respondent's motion, this proceeding was placed in abeyance, due to Respondent's concern that requiring her to respond to discovery or testify at the final hearing would place her in the position of having to defend herself in this proceeding at the potential cost of waiving her right under the Fifth Amendment of the U.S. Constitution. In Respondent's Status Report to the Court and Response to Petitioner's Request to Schedule Hearing ("Respondent's Status Report"), filed on January 7, 2014, Respondent waived back pay for the period that "this matter is delayed at her request while waiting for resolution of the criminal case." Respondent's Status Report at ¶ 10. Subsequently, by Order dated January 23, 2014, abeyance was lifted. Accordingly, it is determined that Respondent affirmatively waived back pay for the period commencing on November 6, 2013, and ending on January 23, 2014.
COPIES FURNISHED:
Charles T. Whitelock, Esquire Charles T. Whitelock, P.A.
300 Southeast 13th Street, Suite E Fort Lauderdale, Florida 33316 (eServed)
Mark S. Wilensky, Esquire Dubiner and Wilensky, LLC
1200 Corporate Center Way, Suite 200
Wellington, Florida 33414-8594 (eServed)
Robert Runcie, Superintendent Broward County School Board 10th Floor
600 Southeast Third Avenue Fort Lauderdale, FL 33301-3125 (eServed)
Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244
325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Pam Stewart
Commissioner of Education Department of Education Turlington Building, Suite 1514
325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
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.
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 09, 2015 | Agency Final Order | |
| Oct. 22, 2015 | Recommended Order | Petitioner did not prove, by a preponderance of the competent substantial evidence, that just cause exists, pursuant to section 1012.33 and rule 6A-5.056, to suspend Respondent and terminate her employment as a teacher. 
 
 |
| Oct. 09, 2015 | Recommended Order | Petitioner did not prove, by a preponderance of the competent substantial evidence, that just cause exists, pursuant to section 1012.33 and rule 6A-5.056, to suspend Respondent and terminate her employment as a teacher. |
