vs.
Case No. 16-0712TTS
Respondent.
This case was heard by Administrative Law Judge Robert L. Kilbride of the Division of Administrative Hearings, on September 1, 2016, in Ft. Lauderdale, Florida.
For Respondent: Robert F. McKee, Esquire
Whether Respondent committed the offense(s) charged in the Amended Administrative Complaint; and, if so, whether the two-day unpaid suspension imposed by Petitioner should be upheld.
On February 9, 2016, Petitioner, Broward County School Board ("Petitioner" or "School Board"), took formal action to suspend Respondent, Stephen DeMatties, for two days without pay for certain incidents which occurred during the 2014-2015 school year.
120.569 and 120.57(1), Florida Statutes, and the matter was referred to the Division of Administrative Hearings.
The final hearing was held on September 1, 2016. Petitioner presented the testimony of two minor students, J.L. and J.R.; Teresa Hall; John Sammarco; Richard Gonzalez; Michelle Garcia; Janice Crosby; Tanisha McDougle; Nicole Miller; Priscilla Rodriguez; Pamela Medoff; and Flavia El-Bouridi. Petitioner's Exhibits 1 through 4, 9 through 15, 17, 20, 22, and 23 were admitted into evidence pursuant to the parties' stipulation.
18-43, 18-45 through 18-49, 18-51 through 18-59, 19-65, and 19-69 were also admitted.
Respondent testified on his own behalf and relied on several exhibits previously admitted by Petitioner.
The Transcript was filed with the Division of Administrative Hearings on October 3, 2016. After an extension was granted, both parties timely submitted proposed recommended orders, which
were considered by the undersigned in preparation of this Recommended Order.
unless otherwise stated.
Petitioner is the duly-constituted school board of Broward County, Florida. It is charged with the duty to provide a public education to the students of Broward County and to establish policies and programs consistent with state law and rules, necessary for the efficient operation and general improvement of the Broward County district school system.
Respondent was employed by Petitioner as a physical education teacher at West Broward High School during the 2014- 2015 school year.
March 19, 2015, Incident
On March 19, 2015, Respondent was teaching a ninth-grade health and physical fitness class known as HOPE, during the seventh period of the school day. March 19, 2015, was the day before the students were going to be released for Spring Break.
As was the common practice, many of the students in his class opted to attend a "pep rally" being conducted on campus, which began shortly after his HOPE class started.
After the students departed for the "pep rally," approximately 12 students remained in the class under Respondent's supervision.
The class remained in session, and Respondent showed the remaining class students an educational video.
As the video played, the lights were dimmed. Respondent was at the front of the class sitting behind his desk in a chair that reclined.
During the video, one of the students, J.R., observed Respondent leaning back, reclined in his chair with his eyes fully closed. Respondent's chair was turned partially away from the class. J.R.'s desk was approximately 15 to 20 feet from Respondent's desk. J.R. observed Respondent in this posture for close to ten minutes.
At some point, J.R. got up from his desk and approached Respondent to hand in some paperwork.
While standing directly in front of Respondent's desk, he took a photograph of Respondent in this posture. See Pet. Ex. 5.
When J.R. approached Respondent's desk and stood in front of it, Respondent did not wake up, stir, or acknowledge J.R.'s presence or take the papers from him.
Notably, J.R. heard Respondent lightly snoring during the time he was asleep.1/
J.R. shared this photograph with several friends on a social media site. One of his friends, J.L., who was also attending the same class, saved the photograph by taking a screen shot of it.2/
While all of this occurred, J.L. was sitting in close proximity to J.R. J.L. also noticed that Respondent was sleeping and reclined in his chair with his eyes closed.
During the period of time that Respondent was in this posture and slumber, he was not properly attending to his duties as a teacher and was not properly supervising the students in his class.
While it is not necessary to recount in detail, the record reflects that Respondent had been counseled, written up, or warned about not properly supervising or monitoring students in other classes during the years preceding this incident.
These various memos and written or verbal warnings constituted sufficient directives or orders by supervisors, the violation(s) of which constituted insubordination. See generally Pet. Ex. 18, composed of multiple subparts and pages.
Based on the persuasive and credible evidence, it should have been obvious to Respondent on March 19, 2015, that this type of conduct was strictly prohibited, in violation of School Board rules and regulations, and exposed him to progressively stricter discipline.
Sometime later, J.L. met with the assistant principal, Richard Gonzalez, to complain about his grades in Respondent's class. It was during this meeting that Gonzalez was shown the picture that J.R. had taken on March 19, 2015.
After conducting an investigation, Gonzalez and the principal, Teresa Hall, met with Respondent and his union representative during a pre-determination meeting to discuss the incident and provide Respondent with an opportunity to respond.
Initially, and before being shown the picture, Respondent denied that he had been sleeping in the HOPE class. However, after being shown the picture, Petitioner's Exhibit 5, he asserted that the picture was not in a classroom. He went on to add that it "would not be like me to do that." He lamented that he was going through marital problems and was on medication. He told Hall and Gonzalez that he was embarrassed. Respondent cried during the meeting.
He also told Hall and Gonzalez that he had never done this before and could not believe that it happened. He appeared very embarrassed. He told both of them, as he handed back the photograph, "I can't believe this happened."
The undersigned concludes that despite the lack of a direct or forthright admission that he had been caught sleeping, Respondent acknowledged through his verbal and physical responses, demeanor, and body language that he had been
inattentive, sleeping, and caught in this posture in violation of School Board rules and policies. Further, it is clear that Petitioner's Exhibits 5 and 6 alone show Respondent fully asleep and/or in a very deep state of slumber and clearly inattentive to his duties as a supervising teacher for the HOPE class on
March 19, 2015.
During the hearing, Respondent was questioned by his attorney about the picture that appeared to show that he was sleeping. He denied closing his eyes. He acknowledged that the picture was of him, but asserted, "I'm not sleeping." Rather, he deflected the point of the inquiry and stated "I've never slept, especially with students in class."
Inexplicably, he left it at that and offered no credible explanation concerning what the picture showed or depicted.
At some point after this incident, Respondent approached the school resource officer, John Sammarco. They discussed the photo of Respondent taken by J.R. which purportedly showed him sleeping. He asked the officer to talk to the student and have J.R. retract the photograph from the internet and write a statement saying that Respondent was not sleeping.
Needless to say, Sammarco refused to assist Respondent in this manner and, instead, immediately reported this meeting to Hall and Gonzalez.
Shortly thereafter, Respondent came back to the officer and apologized to him for "putting him [sic] in that position." March 30, 2015, Incident
The school principal, Hall, was conducting a routine walk-through of the West Broward High School campus with her assistant principal, Gonzalez. As they passed Respondent's classroom, they noticed that the lights were dimmed.
Interested to know what was happening, they entered the class room by using the back door. The classroom was dimly lit and full of students. They walked up the right side of the classroom along the wall from the rear of the classroom.
Respondent was seated at his desk, turned away from the class, and facing more in the direction of the video screen that was located at the front of the class. Respondent was leaning back in a relaxed posture and had his cell phone in his hand. He was not facing the class or watching the students.
From her vantage point, several feet behind and to the right of Respondent, Hall could see that Respondent was looking at pictures of females on his cell phone and scrolling through them with his finger. He would occasionally glance up at the video being shown on the screen and then glance back down at his cell phone.
Hall stood quietly behind Respondent observing this activity for approximately one to two minutes. Respondent never
acknowledged her presence, nor did he turn and notice that the school principal was in the room with Gonzalez.
Gonzalez was slightly behind Hall. He could also tell that Respondent had his cell phone in his hand, but was not able to see what he was looking at. Nonetheless, Gonzalez confirmed that Respondent did not acknowledge their presence or even appear to know that they were in the classroom.3/
When asked during the administrative hearing about this particular incident, Respondent testified that he knew they were there but that he was not required to acknowledge their presence. He said he did look at his cell phone but does not recall what pictures he was looking at. The pictures may have been from Facebook or some other social media. When asked if it is appropriate to look at social media in a classroom of students, with the school's principal present, he stated that "I did it, but I didn't think nothing of it."
Based on the more credible and persuasive evidence, the undersigned finds that Respondent was not aware that Hall and Gonzalez were in the room observing his actions, nor was he properly supervising his students during Hall's visit.
Further, these separate incidents on March 19 and 30, 2015, constituted: (1) a lack of proper supervision of his classes; (2) willful neglect of his duties as a teacher; and
(3) insubordination.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of this proceeding pursuant to sections 120.57(1) and 1012.33(1)(a), Florida Statues (2016).
In an administrative proceeding to suspend or dismiss a member of the instructional staff, the School Board bears the burden of proving, by a preponderance of the evidence, each element of the charged offense(s). See McNeill v. Pinellas Cnty.
Sch. Bd., 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Sublett v.
Sumter Cnty. Sch. Bd., 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995);
MacMillan v. Nassau Cnty. Sch. Bd., 629 So. 2d 226 (Fla. 1st DCA 1993).
A disciplinary hearing at the Division of Administrative Hearings before an Administrative Law Judge is a "de novo" proceeding. As such, evidence must be developed and exist during the administrative hearing to justify the action contemplated by the agency. See generally § 120.57(1)(k), Fla.
Stat. ("All proceedings conducted under this subsection shall be "de novo."); and Fla. Dep't of Transp. v. J.W.C. Co., 396 So. 2d
778 (Fla. 1st DCA 1981).
Moreover, a "de novo" proceeding is intended to formulate final agency action by an agency and is not simply to review action taken earlier, or preliminarily. McDonald v. Dep't
of Banking & Fin., 346 So. 2d 569 (Fla. 1st DCA 1977); Beverly
Enters.-Fla., Inc. v. Dep't of HRS, 573 So. 2d 19 (Fla. 1st DCA
1990); and Lawnwood Med. Ctr. v. Ag. for Health Care Admin., 678 So. 2d 421 (Fla. 1st DCA 1996).
Whether Respondent committed the charged offense(s) is a question of ultimate fact to be decided by the trier of fact in the context of each alleged violation. McKinney v. Castor, 66 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653
So. 2d 489, 491 (Fla. 1st DCA 1995).
Other principles of law are equally important. An agency or school board's interpretation of its own rules and policies is entitled to deference. Beach v. Great Western Bank, 692 So. 2d 146, 149 (Fla. 1997).
And while the deference to be accorded is not absolute, courts and administrative tribunals should defer to the agency unless the agency's construction of its rules or policies amounts to an unreasonable interpretation, or is clearly erroneous. Purvis v. Marion Cnty. Sch. Bd., 766 So. 2d 492 (Fla. 5th DCA
2000); Legal Envtl. Assistance Found., Inc. v. Bd. of Cnty. Comm'rs. of Brevard Cnty., 642 So. 2d 1081, 1083-84 (Fla. 1994).
Sleeping in a classroom full of students during the HOPE class was conduct that clearly impaired Respondent's effectiveness as a teacher. Likewise, being so engrossed in his cell phone data and pictures and being unable to sense that the
school principal and assistant principal were in the room was also compelling evidence of Respondent's lack of effectiveness.
Impaired effectiveness is inherent in these acts. A finding of impaired effectiveness justifies teacher discipline. Purvis, supra; and Walker v. Highlands Cnty. Sch. Bd., 752 So. 2d
127 (Fla. 2d DCA 2000).
Florida Administrative Code 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."
Gross insubordination has been found to constitute sufficient cause to terminate an employee. Dolega v. Sch. Bd. of Miami-Dade Cnty., 840 So. 2d 445 (Fla. 3d DCA 2003). See also
Johnson v. Sch. Bd. of Dade Cnty., 578 So. 2d 387 (Fla. 3d DCA 1991).
The warnings and directives he had received on several occasions were not followed in these two incidents, thereby constituting gross insubordination.
Based on the evidence presented, the undersigned concludes that the conduct of Respondent on both March 19 and March 30, 2015, constitutes sufficient and just cause to find that Respondent was inattentive to his duties, willfully neglected his duties, and was insubordinate. This warrants a
School Board.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order imposing its intended penalty of a two-day, unpaid suspension.
DONE AND ENTERED this 6th day of December, 2016, in Tallahassee, Leon County, Florida.
ROBERT L. KILBRIDE
Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 2016.
1/ The photo was taken, in part, because of J.R.'s resentment and concern about his grade in Respondent's class. Apparently, he was not doing well and wanted some proof to support his claim that Respondent's teaching skills were the source of his problem. Regardless of J.R.'s motivation, a "picture speaks volumes."
What the picture depicts--Respondent sleeping or in a very deep state of slumber--and the reasonable inferences therefrom, cannot be ignored or seriously questioned.
2/ Ultimately, the screen shot was printed and utilized as Petitioner's Exhibits 5 and 6 during the hearing.
3/ This lack of attention to duty and supervision of the students was in violation of school regulations, as well as the warnings Respondent had received in the past concerning other incidents concerning his lack of supervision of students in his charge.
Robert F. McKee, Esquire Kelly & McKee
Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
