STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD,

vs.

Petitioner,

Case No. 16-2679TTS

RICHTER FLAMBERT,

Respondent.

/

RECOMMENDED ORDER

On September 12, 2016, Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings (DOAH), conducted the final hearing by videoconference in Miami and

Tallahassee, Florida.

APPEARANCES

For Petitioner: Christopher J. La Piano, Esquire

Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 430

Miami, Florida 33132

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761 STATEMENT OF THE ISSUE

The issue is whether Respondent's behavior toward an assistant principal violated the prohibitions against misconduct in office, pursuant to Florida Administrative Code Rule 6A-5.056(2), and gross insubordination, pursuant to

rule 6A-5.056(4), so as to constitute just cause for Respondent's dismissal, pursuant to section 1012.33(6)(a)2., Florida Statutes.

PRELIMINARY STATEMENT

By letter dated May 12, 2016, Petitioner informed Respondent that the school board had approved the superintendent's recommendations to suspend Respondent without pay and to commence a dismissal proceeding. The May 12 letter cites as just cause the commission of misconduct in office, gross insubordination, and unspecified violations of school board policies 3210 (Standards of Ethical Conduct) and 3210.01 (Code of Ethics). The May 12 letter advises that Petitioner is dismissing Respondent "in accordance with" sections 1001.32(2), 1012.22(1)(f), 1012.33, and 447.209, Florida Statutes, and Florida Administrative Code Rules 6A-5.056, 6A-10.080, and 6A- 10.081.

By letter dated May 13, 2016, Respondent requested a formal hearing, and Petitioner transmitted the file to DOAH on May 18, 2016.

On July 1, 2016, sua sponte, Petitioner filed a Notice of Specific Charges, which adds the factual allegations on which the proposed dismissal is based. The Notice of Specific Charges alleges that, on December 15, 2015, Respondent met with the principal and assistant principal for a Support Dialogue

Meeting. Immediately upon entering the principal's office, Respondent allegedly pointed a finger at the assistant principal, denounced her as a "puppet," questioned her schooling, and questioned whether she had the qualifications for her job. The Notice of Specific Charges notes that, a few days earlier, an Administrative Law Judge had issued a recommended order sustaining charges against Respondent for angrily pushing a student and recommending a 30-day suspension without pay.

Providing some focus to the legal authority referenced in the May 12 letter, the Notice of Specific Charges includes two counts: misconduct in office and gross insubordination.

The Notice of Specific Charges cites several authorities as legal grounds for the count of misconduct in office. The Notice of Specific Charges cites in their entirety the provisions of rules 6A-5.056(2), which defines misconduct in office, and 6A- 10.080, which is the state Code of Ethics cited in the definition of misconduct in office. The notice identifies only certain provisions of rule 6A-10.081, which is the Principles of Professional Conduct cited in the definition of misconduct of office: the provisions are set forth in rule 6A-10.081(1), (2), and (4)(d) and (e). Likewise, the Notice of Specific Charges identifies only certain provisions of policy 3210: flush language that bears no letter or number and paragraphs A.21, A.22, and A.23. The notice lastly cites nearly in their

entirety the sweeping provisions of policy 3210.01: the lone omission is a sentence addressing nonacademic and elected officials. Without any discussion of how the alleged facts violate any specific provisions of law, the Notice of Specific Charges concludes only that Respondent's conduct constitutes misconduct in office.

After the hearing, in its proposed recommended order, Petitioner contended that five facts established misconduct in office: 1) by insulting his supervisor, Kayla Edwards, and "condescendingly attacking" her supervisory qualifications, Respondent did not treat Ms. Edwards with dignity and exercised very poor judgment; 2) Respondent's "unwarranted aggression" lost him the respect of the principal and Ms. Edwards;

3) Respondent was intimidating, abusive, harassing, and offensive toward Ms. Edwards; 4) Respondent made malicious and untrue statements in defending this case; and 5) Respondent's impaired effectiveness may be inferred because the misconduct itself implies impaired effectiveness.1

The Notice of Specific Charges incorporates the above-stated factual allegations into the count of gross

insubordination. Citing rule 6A-5.056(4) in its entirety, the Notice of Specific Charges alleges: 1) having been suspended for 30 days for aggressive actions toward a student, less than one year later, Respondent confronted an assistant principal in

a "similarly aggressive manner" and 2) Respondent failed to adhere to unspecified School Board policies, to conduct himself in a manner that reflects credit on himself, and to exercise professional judgment and integrity as he was directed to do after his previous misconduct.

At the hearing, Petitioner called four witnesses, and Respondent called two witnesses. With leave of the Administrative Law Judge, instead of testimony at the hearing, Respondent filed transcripts of the depositions of two witnesses: Magda Hernandez and Alexander Dollard. Petitioner offered into evidence 13 exhibits: Petitioner Exhibits 1 through 13. Respondent offered into evidence two exhibits: Respondent Exhibits 1 and 2. All exhibits were admitted.

The court reporter filed the hearing transcript on November 7, 2016. Each party timely filed a proposed recommended order.

FINDINGS OF FACT

1. Petitioner has employed Respondent as a teacher since 2001. He has taught English at North Dade Middle School for the past nine years. For the 2015-16 school year, Respondent was supervised by principal Fabrice Laguerre and assistant principal Kayla Edwards.

2. Following an observation of Respondent, Ms. Edwards submitted to the principal a report citing several teaching

   
   

   deficiencies. The principal, who is now a principal at another school, decided that Respondent was or might be in need of professional assistance in the form of a Performance Improvement Plan (PIP). Placing a teacher on a PIP requires the principal to provide Respondent with notice of a Support Dialogue Meeting. The record does not reveal whether the purpose of the Support Dialogue Meeting is to determine whether Respondent shall be placed on a PIP, to prepare the PIP, or to deliver an already- prepared PIP.

3. Earlier, the principal had agreed with Respondent not to conduct any disciplinary meetings with Respondent without Respondent's union representative in attendance. Respondent wanted a witness to what might transpire during such a meeting, and the principal understood that this was the purpose of having a witness at each such meeting.

4. Toward the end of the school day on December 15, 2015, the principal summoned Respondent to his office. Respondent did not know why he was being summoned to the principal's office. Respondent tried unsuccessfully to have the school's union representative in attendance, so Respondent reported to the principal's office without a representative.

5. When Respondent arrived at the principal's office, he asked if he needed a union representative or other witness. The principal replied that Respondent could have a representative,

   
   

   but this meeting was merely to provide Respondent with notification of the "real" meeting, which was to be within

   48 hours of delivery of the notice. The meeting to which the principal referred was a Support Dialogue Meeting.

6. Despite the principal's assurance to the contrary, the December 15 contact seems to have involved more than merely delivering a notice of a Support Dialogue Meeting in a day or two. As the principal testified, as soon as Respondent entered the office, implicitly assenting to sufficient contact to receive the notice described by the principal, the principal invited Respondent to sit down at a table, at which Ms. Edwards was already seated. The mere delivery of a notice would not have required that Respondent take a seat and probably would not have required the attendance of Ms. Edwards, unless the principal wanted a witness to his delivery of the notice to Respondent.

7. Still standing, Respondent read some papers in front of him on the table and correctly concluded that they reflected unfavorably on his teaching performance and the source of the information was Ms. Edwards. It is impossible to sort out exactly who said what at this juncture. Respondent testified that his first comment was that he could not attend the meeting without a witness, and Ms. Edwards replied, "boy, get in here, stop your drama, and sign these papers." The reference to "boy"

   
   

   is implausible. It seems unlikely that Ms. Edwards would have uttered such an insult and, if she had, it seems as unlikely that Respondent would have remained in the office after hearing this disrespectful appellation. Ms. Edwards may have spoken the remaining words, but they are inconsequential--direct and plainspoken, but not unprofessional or disrespectful.

8. The principal testified more plausibly that Respondent looked up after examining the paperwork and announced that this better not be about his teaching because he had taught a "perfect" lesson to the class that Ms. Edwards had observed. The principal again invited Respondent to take a seat. Instead, Respondent characterized the PIP as part of a "witch hunt" and averred that Ms. Edwards did not know what she was doing when observing Respondent. This testimony of the principal is credited.

9. Past observations of Respondent performed by other administrators were satisfactory. Respondent and Ms. Edwards appear to have had some difficulties in the past. Most importantly, as noted above, Respondent had good cause to doubt that the sole purpose of the December 15 meeting was to deliver a notice of a Support Dialogue Meeting. Even the Notice of Specific Charges characterizes the December 15 meeting as the Support Dialogue Meeting itself. Respondent thus could reasonably believe that he could still prevail upon the

   
   

   principal not to implement a PIP or to design a less-elaborate PIP. On these facts, in a meeting attended exclusively by himself, the principal, and Ms. Edwards, Respondent's questioning the qualifications of Ms. Edwards did not constitute just cause for any adverse employment action, as long as he did not do so in bad faith, and nothing in the record indicates that he did.

10. The principal testified that Ms. Edwards refrained from insulting Respondent and, more specifically, said nothing about where he went to college. Ms. Edwards' testimony candidly does not bear out the principal's testimony on this point.

    Ms. Edwards testified that she and Respondent each inquired of the other where he or she went to college, implying an inferiority in the other's school of higher learning. However, the parties' "questions" as to academic pedigrees are found to have been intended as nothing more than mild insults--that is, slights--and, as such, insubstantial.

11. The principal also testified that, during this exchange, Respondent pointed a finger at Ms. Edwards with a "relaxed hand." This testimony is credited, but any implication that such a gesture was intended or perceived as threatening is rejected. Respondent's gesture was for mild emphasis: textually, this emphasis would be expressed by underlining, not boldface.

    
    

12. This marks the end of the portion of the December 15 incident alleged as proof of misconduct in office. Interestingly, the testimony of Ms. Edwards and the principal set forth in the preceding two paragraphs does not describe Respondent in terms suggesting any loss of composure, but rather in terms not inconsistent with an employee unapologetically advocating for himself.

13. The principal next asked Ms. Edwards to make a copy of a document, which necessitated her leaving the office for a few moments. But even this seemingly innocuous act proved fraught. Returning, Ms. Edwards did not see Respondent standing behind the door, and, when she opened it, the door struck Respondent harmlessly. Trying to seize a potential advantage, Respondent, implying that the act had been intentional, asked the principal if he had seen what had happened. The principal sensibly replied that Ms. Edwards could not see Respondent through the solid door, and the bump was accidental.

14. The principal then ushered Ms. Edwards and Respondent out of the office. Up to this point, there had been no other witnesses because the office door had been closed--or, as to the last matter, closing. Once the unhappy trio left the office, the principal and Ms. Edwards testified that Respondent "kept going after" Ms. Edwards, now loud enough for others to hear,

    
    

    and caused much embarrassment. Ms. Edwards added that she was crying.

15. Even though not alleged as grounds for adverse employment action, from Petitioner's perspective, this testimony from the principal and Ms. Edwards is important because it could provide a basis for inferring an earlier lack of composure on Respondent's part. However, as assessed by the Administrative Law Judge, this testimony is important because it is untrue and undermines the credibility of the principal and Ms. Edwards as witnesses.

16. Three independent witnesses to the exit of the edgy ternion from the principal's office uniformly portrayed Respondent as not agitated. The first of these witnesses was a secretary, who was in her office two doors down from the principal's office. The secretary heard absolutely nothing, even though she was close enough to hear anything that might have been said, even if not loudly. Her testimony is credited.

17. Ms. Edwards approached Respondent to give him the papers that she had copied. Ms. Edwards testified that she did not want Respondent to see that she was crying, so she extended her arm out in Respondent's direction and released her grip. It is hard to understand how, with her eyes averted from Respondent, Ms. Edwards would have known if Respondent was looking at her to receive the papers. In her version,

    
    

    Ms. Edwards released the papers and, for whatever reason, Respondent did not grasp them before they fell to the floor. Ms. Edwards' testimony is not credited, except for the papers falling to the floor. For his part, Respondent testified that he was the one crying because Ms. Edwards employed a phrase that reminded him of his recently deceased mother. Based on the testimony of the three independent witnesses, which omits any mention of tears and, to varying degrees, is inconsistent with such emotion, the crying testimony of Ms. Edwards and Respondent is rejected as melodramatic embellishment.

18. Respondent testified that Ms. Edwards thrust the papers into his chest, leading with her closed hand. This testimony, which is credited, is corroborated by two custodians who witnessed the attempted exchange. The exchange was attempted because everyone agrees that the papers fell to the ground where the principal gathered them up. One custodian testified that Ms. Edwards, who was visibly agitated, walked quickly up to Respondent and, without much force, pressed the papers into the chest of Respondent, who grinned in response. The other custodian testified that Ms. Edwards, with her hand leading, "very strongly" "snapped" the papers into Respondent's hands "and stomach area," but this custodian thought that the two of them were playing around. Despite minor discrepancies in

    
    

    their testimony, the three independent witnesses clearly establish that Respondent had not lost his composure.

19. Based on the foregoing, Petitioner failed to prove misconduct in office. Specifically, Petitioner did not prove that Respondent failed to treat Ms. Edwards with dignity or exercised poor judgment by insulting her and objecting to her supervisory qualifications. Each party slighted the other's academic pedigree; this inconsequential lapse, committed in the presence of only the principal, did not render objectionable Respondent's behavior in the incident. His questioning of

    Ms. Edwards' qualifications to observe his teaching would raise a different factual issue if directed toward his students or even uttered in the presence of his students, but raising this issue with the principal was appropriate and raising it in the presence of Ms. Edwards, whom the principal had included in the meeting, was forthright and timely. Respondent raised this issue at what he might have reasonably assumed was his Support Dialogue Meeting--meaning that this might have been his last chance to avoid a PIP or at least avoid a more elaborate PIP.

20. Petitioner failed to prove any aggression by Respondent--unwarranted or warranted--or that Respondent was intimidating, abusive, harassing, and offensive toward

    Ms. Edwards.

    
    

21. Petitioner failed to prove that Respondent made malicious and untrue statements in defending this case. His testimony that Ms. Edwards referred to him as "boy" has been discredited, but the record fails to establish that this testimony was a knowing falsehood.

22. Petitioner failed to prove that Respondent's effectiveness has been impaired by anything that he said or did in connection with the December 15 meeting.

23. Petitioner has failed to prove that Respondent committed gross insubordination. As alleged in the Notice of Specific Charges, this count fails even to state a claim of gross insubordination under the rule for the reasons set forth in the Conclusions of Law.

    CONCLUSIONS OF LAW

    
    

24. DOAH has jurisdiction of the subject matter.

    
    

    §§ 120.569, 120.57(1), and 1012.33(6)(a)2., Fla. Stat. (2015).

    
    

25. Petitioner bears the burden of proving the material allegations by a preponderance of the evidence. § 120.57(1)(j); Allen v. Sch. Bd. of Dade Cnty., 571 So. 2d 568 (Fla. 3d DCA

    1990).

    
    

26. Petitioner may dismiss an employee for just cause.

    
    

    § 1012.33(1)(a) and (6)(a). Just cause includes misconduct in office and gross insubordination. § 1012.33(1)(a).

    
    

27. A teacher defending a dismissal case is entitled to notice of, and a chance to be heard on, each of the charges brought against him by the school board. Pilla v. Sch. Bd. of

    Dade Cnty., 655 So. 2d 1312, 1314 (Fla. 3d DCA 1995); Schimenti v. Sch. Bd. of Hernando Cnty., 73 So. 3d 831, 833 (Fla. 5th DCA

    2011) (citing Pilla). However, Respondent did not file a motion to dismiss or motion for more definite statement, so he waived any objection to the sufficiency of the charging pleadings.2 Jacker v. Sch. Bd. of Dade Cnty., 426 So. 2d 1149, 1150-51 (Fla. 3d DCA 1983).

28. Unfortunately, vague pleadings often yield unfocused hearings and recommended orders that struggle to address the salient facts and law. In this case, the hearing progressed along the well-trod path of a swearing contest, and, after the hearing, Petitioner filed a proposed recommended order that better revealed its theory of the case. But Petitioner never explained how specific facts violated specific provisions of statutes, rules, or policies.3 Thus, even after weighing the evidence and finding the facts, the Administrative Law Judge found himself confronted with the prospect of taking the facts as he has found them, sifting through the scores of criteria in policy 3210.01 cited indiscriminately by Petitioner to find those that may constitute minimum standards, and determining whether the proved facts violate these minimum standards. Due

    
    

    process commands that this is the work of the charging party, regardless of whether a charged party objects to vague pleadings.

29. The course of pleading in this case began with the

    
    

    May 12 letter, which cites no facts,4 but cites the law allegedly violated.5 The Notice of Specific Charges alleges facts, although not how these facts violate specific provisions of law. As mentioned above, the citation to policy 3210.01, essentially in its entirety, is especially problematic because this policy is a daunting compendium of requirements, prohibitions, exhortations, and admonitions.6

30. Rule 6A-5.056(2) defines "misconduct in office" as "one or more of the following":

    1. A violation of the Code of Ethics of the Education Profession in Florida as adopted in Rule 6A-10.080, F.A.C.;

       
       

    2. A violation of the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6A- 10.081, F.A.C.;

       
       

    3. A violation of the adopted school board rules;

       
       

    4. Behavior that disrupts the student’s learning environment; or

       
       

    5. Behavior that reduces the teacher’s ability or his or her colleagues’ ability to effectively perform duties.

       
       

31. Repealed on March 23, 2016, rule 6A-10.080(1) formerly provided that the educator "values the worth and dignity of every person." Assuming this provision was prescriptive, it perhaps drove the allegation that Respondent's insulting of

    Ms. Edwards and questioning of her qualifications failed to accord her dignity. As already found, the minor insults or slights that Respondent and Ms. Edwards exchanged were too inconsequential to constitute an assault on anyone's dignity, and Respondent had a legitimate reason to ask the principal to consider Ms. Edward's qualifications before assigning him a PIP or fashioning a PIP.

32. Rule 6A-10.080(2) provided that the educator "will seek to exercise the best professional judgment and integrity," but, in context, this provision addressed the educator's duty to the student, so it did not apply to Respondent's dealings with Ms. Edwards. Rule 6A-10.080(3) referred to the importance of maintaining the respect and confidence of one's colleagues, among others, but the operative portion of this provision circularly commanded only that the educator maintain the "highest degree of ethical conduct"--without specifying any of the elements of the highest degree of ethical conduct. If enforceable, this provision is not implicated by the minor insult or slight and questioning of Ms. Edwards' qualifications.

    
    

33. Petitioner failed to prove any violation of rule 6A-10.080 and, thus, rule 6A-5.056(2)(a).

34. Rule 6A-10.081(2)(c) provides in part that an

educator:

1. Shall not engage in harassment or discriminatory conduct which unreasonably interferes with an individual’s performance of professional or work responsibilities or with the orderly processes of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment; and, further, shall make reasonable effort to assure that each individual is protected from such harassment or discrimination.

   
   

2. Shall not make malicious or intentionally false statements about a colleague.

   
   

   1. Petitioner failed to prove that Respondent engaged in harassment or discriminatory conduct of any sort. Petitioner thus failed to prove that Respondent engaged in any such conduct that unreasonably interfered with Ms. Edwards' performance of her duties or the orderly processes of education. Nor did Petitioner prove that Respondent engaged in such conduct so as to create a hostile, intimidating, abusive, offensive, or oppressive environment.

   2. Petitioner failed to prove that Respondent made any malicious or intentionally false statements about Ms. Edwards. The exchange of minor insults or slights about each person's college was too minor to rise to the level of maliciousness, and

      
      

      neither party's comment appears to have been offered in the expectation that the statement might induce in a third party false knowledge that a specific college is inferior.

      Respondent's testimony that Ms. Edwards called him "boy" has been discredited, but Petitioner has produced no additional evidence on this point: it is as likely that Respondent misheard Ms. Edwards as he lied maliciously about what she said to him. Any statements made in the defense of this case that were not made during the December 15 incident would not support an adverse employment action because this case concerns the December 15 incident, not Respondent's defense over the ensuing months.

   3. Petitioner failed to prove any violation of

      
      

      rule 6A-10.081(2)(c)4. and 5. and, thus, rule 6A-5.056(2)(b).

      
      

   4. Petitioner cited to three provisions of policy 3210.A. These provisions require an educator to:

      21. not use abusive and/or profane language or display unseemly conduct in the workplace;

      
      

      22. [rule 6A-10.081(2)(c)4., which is set forth above]; [and]

      
      

      23. [rule 6A-10.081(2)(c)5., which is set forth above.]

      
      

   5. Petitioner did not allege that Respondent used a profanity. Petitioner failed to prove that Respondent used abusive language or displayed unseemly conduct in the workplace.

      
      

      The issues framed by paragraphs A.22 and A.23 of policy 3210 have already been addressed.

   6. Petitioner failed to prove any violation of paragraphs A.21, A.22, or A.23 of policy 3210.

   7. Petitioner cited to nearly all of the sections and provisions of policy 3210.01. The first section of this policy recites now-repealed rule 6A-10.080, but, as noted above, Petitioner proved no violations of these provisions. The second section of policy 3210.01 is entitled, "Application." This section merely identifies who is covered and other legal authorities governing Petitioner's employees, so this section is not directly applicable.

   8. The next section is entitled, "Fundamental Principles." Cited by Petitioner in their entirety, the Fundamental Principles are:

      1. Citizenship--Helping to create a society based upon democratic values (e.g., rule of law, equality of opportunity, due process, reasoned argument, representative government, checks and balances, rights and responsibilities, and democratic decision- making).

         
         

      2. Cooperation--Working together toward goals as basic as human survival in an increasingly interdependent world.

         
         

      3. Fairness--Treating people impartially, not playing favorites, being open-minded, and maintaining an objective attitude toward those whose actions and ideas are different from our own.

         
         

      4. Honesty--Dealing truthfully with people, being sincere, not deceiving them nor stealing from then, not cheating or lying.

         
         

      5. Integrity--Standing up for their beliefs about what is right and what is wrong and resisting social pressure to do wrong.

         
         

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

         
         

      7. Pursuit of Excellence--Doing their best with their talents, striving toward a goal, and not giving up.

         
         

      8. Respect--Showing respect for the worth and dignity of someone or something, being courteous and polite, and judging all people on their merits. It takes three (3) major forms: respect for oneself, respect for other people, and respect for all forms of life and the environment.

         
         

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

         
         

   9. Following the Fundamental Principles is an eight-part agreement:

      Each employee agrees and pledges:

      
      

      1. To abide by this Code of Ethics, making the well-being of the students and the honest performance of professional duties core guiding principles.

         
         

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

         
         

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

         
         

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

         
         

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

         
         

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

         
         

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

         
         

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

         
         

         The remaining sections of policy 3210.01 address conflicts of interest, conduct regarding students, and personnel matters and are not relevant to the present case.

   10. The role of the Fundamental Principles in

       
       

       policy 3210.01 is unstated in the policy. The contents of the Fundamental Principles suggest that this section is precatory, not imperative. It is doubtful, for instance,

       whether the persons drafting or adopting this document intended for Petitioner to be able to dismiss an employee for her failure to be gentle toward people and living things. Obviously, if these provisions could be violated, so as to expose a covered employee to adverse employment action, the vagueness of some of these provisions would raise serious enforcement issues, such as whether an employee had "avoided" a conflict of interest, which

       
       

       itself is undefined. Also, the next section is the agreement of the covered employee to eight pledges, suggesting that the Fundamental Principles themselves are advisory and not enforceable, but serve as interpretive aids to the eight pledges. Based on the foregoing, including the five factual issues identified in its proposed recommended order, Petitioner twice has cited--but never discussed--policy 3210.01, essentially in its entirety, for the purpose of culling one pledge: "To treat all persons with respect and to strive to be fair in all matters." As found above, Respondent's contribution to the minor insults or slights exchanged about colleges was not so consequential as to violate this pledge, and Respondent's questioning of Ms. Edwards' qualifications, under the circumstances, was not disrespectful or unfair.

   11. Petitioner failed to prove any violation of

       
       

       policy 3210.01. Because Petitioner also failed to prove any violation of policy 3210, Petitioner thus failed to prove a violation of rule 6A-5.056(2)(c).

   12. Rule 6A-5.056(2)(d) is irrelevant because the December 15 incident had no effect on the students' learning environment. The minor insult or slight and challenge to Ms. Edwards' qualifications did not reduce the ability of

       Ms. Edwards and Respondent to perform their duties effectively,

       
       

       so Petitioner failed to prove any violation of rule 6A- 5.056(2)(e).

   13. 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."

   14. Petitioner substitutes for a direct order the earlier determination that Respondent was guilty of aggression toward a student. Regardless of the earlier determination, misconduct in office is prohibited, but the earlier determination would not transform another instance of aggression into gross insubordination, as well, or lower the bar for a showing of gross insubordination.

   15. In any event, Petitioner has failed to prove any violation of rule 6A-5.056(4).

RECOMMENDATION

It is

RECOMMENDED that Petitioner enter a final order dismissing the Notice of Specific Charges and reinstating Respondent with "back salary," as provided in section 1012.33(4)(c).

DONE AND ENTERED this 2nd day of December, 2016, in Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

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 2nd day of December, 2016.

ENDNOTES

1 As noted below, rule 6A-5.056(2)(e) permits a showing of loss of effectiveness to prove misconduct in office. However, Petitioner's explicit request for an inference without direct evidence of loss of effectiveness suggests a line of cases construing former rule 6A-5.056(3). Compare MacMillan v. Nassau Cnty. Sch. Bd., 629 So. 2d 226, 230 (Fla. 1st DCA 1993) (no misconduct in office without proof of loss of effectiveness) with Purvis v. Marion Cnty. Sch. Bd., 766 So. 2d 492, 498 (Fla. 5th DCA 2000) (loss of effectiveness inferred from gravity

of misconduct without testimony of loss of effectiveness). Former rule 6A-5.056(3) required a showing of loss of effectiveness for any showing of misconduct in office, but current rule 6A-5.056(2) has dropped this requirement for showings under rule 6A-5.056(2)(a) through (d)--thus validating the first clause of the famous maxim, "the more things change."

2 Unless, as here, met with disregard, vague pleadings typically inspire what is often a desultory round of motions, orders, and amended pleadings. But a charging party may face more serious consequences to its inattention to charging pleadings. A charging party may not impose a penalty in excess of that which it has sought in its charging pleadings. Williams v. Turlington, 498 So. 2d 468 (Fla. 3d DCA 1986) (final order may

not permanently revoke educator certificate because administrative complaint sought revocation for term of no more than ten years). Nor may a charging agency incorporate in its final order remedies that it has omitted from its charging pleadings. Arpayoglou v. Dep't of Prof'l Reg., 603 So. 2d 8 (Fla. 1st DCA 1992) (final order may not extend suspension until physician provides notice to patients of relocation of practice and availability of patient records because administrative complaint did not allege the failure to perform these duties).

A vague initial pleading also may provide the first link in the chain leading to an award of attorneys' fees under section 57.105(1) and (4).

3 DOAH rules require as much in charging pleadings. Florida Administrative Code Rule 28-106.2015(4)(b) and (c) requires an agency taking enforcement action, such as Petitioner, to identify the statute, rule, or agency order allegedly violated and the facts or conduct establishing the violation. If the Administrative Law Judge cannot understand how the alleged facts violate the cited law, this rule would require that the agency allege an explanation of how the facts violate the cited law. The requirement of pleading an explanation is imposed explicitly by rule 28-106.201(2), which requires a party requesting a hearing on proposed agency action to state:

1. . . . all disputed issues of material fact. . . .

   
   

2. . . . the ultimate facts alleged . . .

   [and]

3. . . . the specific rules or statutes the petitioner contends require reversal or modification of the agency's proposed agency action, including an explanation of how the alleged facts relate to the specific rules or statutes[.]

4 A charging pleading must include the facts on which an agency is relying. For example, a party cannot be determined to have committed an unpleaded act because the pleading of one fact (the failure to create a dental record) does not plead another factual scenario addressed in the pleaded statute (the failure to maintain a dental record). Trevisani v. Dep't of Health, 908 So. 2d 1108 (Fla. 1st DCA 2005). Nor can a party be determined to have committed an unpleaded act merely on the basis of factual scenarios addressed in the pleaded statute. Cottrill v. Dep't of Ins., 685 So. 2d 1371 (Fla. 1st DCA 1996).

5 A charging pleading must include the law on which an agency is relying. For instance, a party cannot be determined to have violated an unpleaded statute. Willner v. Dep't of Prof'l Reg.,

563 So. 2d 805 (Fla. 1st DCA 1990). But no case has addressed the adequacy of the notice when an agency relies on an exceptionally wide body of law without identifying specific provisions or explaining how the facts violated provisions of the cited law.

6 The breadth of these provisions may be suggested by the fact that two entirely different provisions of policy 3210.1 are implicated by the apparently innocuous act of a teacher dropping into a wastebasket a living houseplant given to her by a student. See policy 3210.1, Fundamental Principles F and H.

COPIES FURNISHED:

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

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761 (eServed)

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

1450 Northeast Second Avenue, Suite 430

Miami, Florida 33132 (eServed)

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

1450 Northeast Second Avenue, Suite 912

Miami, Florida 33132-1308

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.

Docket for Case No: 16-002679TTS

Orders for Case No: 16-002679TTS