STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD,

vs.

Petitioner,

Case No. 17-5796TTS

HARCOURT I. CLARK,

Respondent.

/

RECOMMENDED ORDER

On May 18, 2018, Administrative Law Judge Lisa Shearer Nelson of the Division of Administrative Hearings (Division) conducted a hearing pursuant to section 120.57(1), Florida Statutes (2017), by video teleconference with sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Christopher J. La Piano, Esquire

Miami-Dade County School Board Suite 430

1450 Northeast Second Avenue Miami, Florida 33132

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A. Suite 110

29605 U.S. Highway 19 North

Clearwater, Florida 33761 STATEMENT OF THE ISSUE

The issue to be determined in this case is whether Petitioner, Miami-Dade County School Board (School Board), had

just cause to suspend Respondent, Harcourt I. Clark, for ten days

without pay.

PRELIMINARY STATEMENT

On October 12, 2017, the School Board notified Respondent that it had taken action at its October 11, 2017, School Board meeting, to suspend him without pay from his position as a teacher at Shenandoah Middle School for a period of ten days. That same day, Respondent requested a hearing to contest the suspension, and on October 19, 2017, the matter was forwarded to the Division for the assignment of an administrative law judge.

The case was scheduled for hearing to take place

December 20, 2017. After multiple requests for continuances, the case was ultimately scheduled for and heard on May 18, 2018. The School Board filed a Notice of Specific Charges on May 11, 2018.

An Order of Pre-hearing Instructions was issued on November 14, 2017. However, the parties failed to file a Joint Pre-hearing Statement as required by the Order. As a result, at the beginning of the hearing, a brief recess was taken to enable the parties to identify the issues for which there remained a dispute of material fact and to identify the witnesses and exhibits that would be introduced, as well as any objections to those witnesses and exhibits. After the recess, the parties agreed that the only facts in dispute are those identified in paragraphs 13 and 14 of the Notice of Specific Charges.

Petitioner presented the testimony of Teresa Gonzalez and students R.M. and A.F., and Petitioner’s Exhibits numbered 1 through 26 were admitted, subject to Respondent’s objections regarding relevance and hearsay. It was noted at hearing that hearsay, standing alone, would not be sufficient to support a finding of fact, consistent with section 120.57(1)(c).

Respondent testified on his own behalf and presented no exhibits.

A one-volume Transcript was filed with the Division on July 11, 2018. Respondent and Petitioner filed their Proposed Recommended Orders on July 23 and 24, 2018, respectively. Both submissions have been considered in the preparation of this

Recommended Order. All references to Florida Statutes are to the 2016 codification, unless otherwise specified.

FINDINGS OF FACT

Based on the stipulations of the parties, and an evaluation of the testimony of witnesses and documentary evidence presented, the following facts are found:

1. At all times material to this proceeding, Respondent was employed by the School Board as a school teacher within the School District of Miami-Dade County (School District). Respondent was a teacher in the School District, since approximately August of 1987 at various schools within the county, and also worked as a coach for 15 years of that tenure.

   
   

   At the time of the incident alleged in the Notice of Specific Charges, Respondent was teaching at Shenandoah Middle School.

2. Respondent has a disciplinary history with the School Board. In 1995 (23 years ago), Respondent was the subject of an administrative review at the individual school level, as a result of a complaint that alleged, in part, that Respondent was allowing students to massage his shoulders in class, and for showing movies unrelated to the curriculum. As a result, Respondent received an informal conference and a letter of written directives. The written directives included an admonition that Respondent refrain from “allowing students to massage your shoulders, neck, etc.,” and “any other physical contact with students.” No further action with respect to this complaint was taken at the district level.

3. On October 2013, Respondent showed up to work under the influence of alcohol. He returned to work only after completing a rehabilitation program under the supervision of the District’s Support Agency.

4. In September 23, 2016, Respondent was given a written reprimand for using profanity in the classroom. On November 21, 2016, later that same year, Respondent received a written Absence from Worksite Directive for having six unauthorized absences in November 2016.

   
   

5. The incident giving rise to the discipline in this case took place on February 28, 2017, prior to the administration of an FSA examination to a group of sixth-grade students. The Notice of Specific Charges alleged that Respondent “walked around the classroom and slapped several students in the back of the head, grabbed others by the neck, and physically squeezed at least one student’s hands.”

6. Respondent was to administer the FSA test with another instructor, Teresa Gonzalez. Before the start of the examination, Respondent walked around the classroom between the rows of student desks, gathering book bags, making sure that students had pencils for the test, and encouraging students to do their best. As he walked around the classroom, Ms. Gonzalez observed Respondent touch the back of several students’ necks or shoulders in what she described as correcting their posture. She also observed him “squash” a student’s fingers together in what she described as a prayer position. She could not, however, hear what Mr. Clark was saying to students because she was in the front of the room and Mr. Clark was in the back.

7. Ms. Gonzalez could not identify the students who

   
   

   Mr. Clark touched because they were not her students. She also did not recall any comments by students, but stated at hearing that their facial expressions indicated that they did not like being touched by him.1/

   
   

8. Ms. Gonzalez also confirmed her statement to School District investigators that she did not believe Mr. Clark was angry with the students, and that it looked like his actions were a way of communicating and playing with the students. However, she was disturbed by Mr. Clark’s actions and reported them to her assistant principal.

9. Two students testified regarding the February 28, 2017, incident. One of them, R.M., testified that before the exam,

   Mr. Clark grabbed his hands and squished them, and grabbed at the back of his neck, and stated that Mr. Clark also slapped another student on the back of the head. He testified that he was not hurt in any way by the action, but the other student said “ow” in response to Mr. Clark’s action. R.M. did not believe that

   Mr. Clark was trying to motivate the students. Student A.F. recalled Mr. Clark tapping the top of a student’s head and that the student just laughed. A.F. believed that Mr. Clark may have patted some kids on the back of the head before the test, but that he believed it was done to encourage the students, much like a coach would.

10. Mr. Clark testified that he merely tapped students on the back of the head while telling them to do well on their test. He viewed the tap as similar to what a principal or school board attendee might do at a graduation or where a student was receiving a certificate. It was encouragement and not malicious,

    
    

    and not meant to hurt anyone. Mr. Clark acknowledged that he had been warned about harmful touching, and would not engage in that type of conduct, saying, “I wouldn’t want anybody hitting my kid. And for no way [sic] I would lose my pension for 31 years hitting a kid like that. That’s not my character.” Mr. Clark did not recall grabbing R.M.’s hand and testified that he generally stayed away from R.M. because R.M. was rude in his classroom, and they did not get along. Whatever the relationship between R.M. and Mr. Clark, it appeared from R.M.’s demeanor at hearing that he did not care for Mr. Clark, and that may have colored his testimony somewhat.

11. It is found that Mr. Clark tapped several students on the back of the head or neck and squeezed at least one student’s hands together before the administration of the test. The gestures were meant to be an encouragement for the students to do well during the examination, and were not any form of punishment.

12. Mr. Clark’s actions, based on the evidence presented, did not constitute corporal punishment, and did not rise to the level of use of force, much less excessive or unreasonable use of force.

13. The Notice of Specific Charges also alleges that Respondent “used profanity towards at least one student, said other inappropriate things and also used the term ‘these/deez nuts’ prior to the start of the exam.”

    
    

14. The only evidence presented regarding profanity during hearing was a statement by Ms. Gonzalez that an unidentified student stated that Mr. Clark was “cursing her.” There was no testimony from that student, and no description that is not hearsay describing what was allegedly said. While Petitioner attempted to characterize the hearsay statement of the student as an excited utterance, there was no evidence presented upon which to predicate that characterization.

15. With respect to the use of the term “deez nuts,”

    
    

    Ms. Gonzalez did not hear Mr. Clark use the term. Both students testified that he did so, in response to a question asked by a student. R.M. testified that the term is slang for “I don’t know,” or “whatever,” and may refer loosely to a young man’s genitalia. A.F. also stated that Mr. Clark used the term “deez nuts” as sort of a joke, and said that use of the term used to be popular as sort of a joke. Both students’ description of the term was somewhat tentative. Mr. Clark testified that he had heard the term before from the students, but would not use it.

    The more persuasive testimony is that Mr. Clark used the term in response to a student in the classroom, but there was no compelling testimony that the term is anything more than rap- influenced slang. No evidence was presented to indicate whether the students found the term offensive or inappropriate, considered it to be profane, or that any student felt embarrassed

    
    

    or humiliated by its use. Further, the evidence was not persuasive that Mr. Clark intended by his use of the term to refer to genitalia.

16. No evidence was presented regarding any other “inappropriate” comment made by Mr. Clark.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding pursuant to sections 120.569, 120.57(1), and 1012.33(6)(a)2., Florida Statutes (2017).

18. The School Board is the duly-constituted governing body of the Miami-Dade County School District pursuant to Article IX, section 4 of the Florida Constitution, and sections 1001.30 and 1001.33, Florida Statutes. The School Board has the authority to adopt rules governing personnel matters pursuant to sections 1001.42(5) and (28), 1012.22(1), and 1012.23.

19. District superintendents are authorized to make recommendations for dismissal of school board employees, and school boards may dismiss school board instructional staff for “just cause.” §§ 1001.42(5), 1012.22(1)(f), 1012.27(5), and 1012.33(6)(a), Fla. Stat.

20. Petitioner is seeking to suspend Respondent for ten days without pay for just cause. Therefore, Petitioner bears the burden to establish the charges against Respondent by a

    
    

    preponderance of the evidence. Dileo v. Sch. Bd. of Dade Cnty.,

    
    

    569 So. 2d 883 (Fla. 3d DCA 1990); § 120.57(1)(l), Fla. Stat.

    
    

21. The preponderance of the evidence standard requires that the proof against Respondent be by the greater weight of the evidence, or evidence that “more likely than not” tends to prove the allegations. Gross v. Lyons, 763 So. 2d 276, 280 n.1 (Fla. 2000).

22. Section 1012.33(6)(a) provides that any member of instructional staff may be suspended or dismissed during the term of his or her contract for just cause as defined in section 1012.33(1)(a). Section 1012.33(1)(a) provides, in pertinent part, that:

    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, two consecutive annual performance evaluation ratings of unsatisfactory under s. 1012.34, two annual performance evaluation ratings of unsatisfactory within a 3-year period under

    s. 1012.34, three consecutive annual performance evaluation ratings of needs improvement or a combination of needs improvement and unsatisfactory under

    s. 1012.34, gross insubordination, willful neglect of duty, or being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude.

    
    

23. Petitioner seeks to suspend Respondent for ten days based upon misconduct in office and gross insubordination.

    
    

24. Count I of the Notice of Specific Charges alleged that Respondent committed misconduct in office. Florida Administrative Code Rule 6A-5.056(2) defines misconduct in office as a violation of the Code of Ethics, as adopted in Florida Administrative Code Rule 6A-10.080; a violation of the Principles of Professional Conduct for the Education Profession, as adopted in rule 6A-10.081; a violation of adopted school board rules; behavior that disrupts the student’s learning environment; or behavior that reduces the teacher’s ability or his or her colleague’s ability to effectively perform duties. In support of the misconduct charge, the Notice of Specific Charges asserts that Respondent violated the Principles of Professional Conduct for the Education Profession, rule 6A-10.081(1)(a) through (c) and (2); School Board Policy 3210 (Standards of Ethical Conduct); School Board Policy 3210.01 (Code of Ethics); School Board

    Policy 3213 (Student Supervision and Welfare); and School Board Policy 5630 (Corporal Punishment and Use of Reasonable Force).

25. Rule 6A-10.081 provides in pertinent part:

    
    

    1. Florida educators shall be guided by the following ethical principles:

       1. The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, and the nurture of democratic citizenship. Essential to the achievement of these standards are the freedom to learn and to teach and the guarantee of equal opportunity for all.

          
          

       2. The educator’s primary professional concern will always be for the student and for the development of the student’s potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity.

       3. Aware of the importance of maintaining the respect and confidence of one’s colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.

    2. Florida educators shall comply with the following disciplinary principles. Violation of these principles shall subject the individual to revocation or suspension of the individual educator’s certificate, or the other penalties as provided by law.

       1. Obligation to the student requires that the individual:

          1. Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental and/or physical health and/or safety.

          
          

          * * *

          
          

          1. Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

          2. Shall not intentionally violate or deny a student’s legal rights.

          3. 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.

          4. Shall not exploit a relationship with a student for personal gain or advantage.

          
          

26. Petitioner did not prove a violation of rule 6A-10.081.

    
    

    By its terms, discipline may be imposed only for violation of paragraph (2). There was no evidence presented to indicate that Respondent failed to protect students from conditions harmful to learning or to the students’ mental and/or physical health or safety. The evidence shows that he simply patted students on the back or the base of their neck while encouraging them to perform their best on standardized tests. No “conditions harmful to learning or to the students’ mental and/or physical safety” is even identified.

27. Likewise, there was no persuasive evidence that Respondent exposed any student to embarrassment or disparagement. No students’ legal rights were identified that he could have violated or denied, much less proof presented that he did so. Likewise, no evidence was presented that Respondent exploited any relationship for personal gain or advantage (and the School Board did not make any real attempt to identify a gain or advantage for Respondent), and no evidence indicated that he discriminated against any student on the basis of any of the factors listed in the rule.

28. School Board Policy 3210 (Standards of Ethical Conduct) repeats some of the provisions found in rule 6A-10.081, but is more specific in some respects, providing in pertinent part:

    
    

    A. An instructional staff member shall:

    
    

    * * *

    
    

    3. [M]ake a reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental and/or physical health and/or safety;

    
    

    * * *

    
    

    1. [N]ot intentionally expose a student to unnecessary embarrassment or disparagement;

    2. [N]ot intentionally violate or deny a student’s legal rights;

    3. [N]ot harass or discriminate against any student on any basis prohibited by law or the School Board and shall make reasonable efforts to assure that each student is protected from harassment or discrimination;

    
    

    * * *

    
    

    1. [N]ot use abusive and/or profane language or display unseemly conduct in the workplace;

    2. [N]ot 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 efforts to assure that each individual is protected from such harassment or discrimination.

    
    

29. Petitioner did not prove a violation of School Board Policy 3210. As noted above, much of the policy is already addressed in rule 6A-10.081. The specific addition in the School Board policy is the prohibition against the use of abusive and/or profane language or display of unseemly conduct in the workplace.

    
    

    Neither was proven here. There was no evidence to demonstrate that the use of the term “deez nuts” was abusive or profane. The students who testified described it as meaning “whatever,” or “I don’t care,” hardly an abusive or profane sentiment. Moreover, Respondent’s comparison of his patting students on the back to the actions of school officials at graduation, highlights the absurdity of considering the action as a display of unseemly conduct. Moreover, there was no attempt to explain why patting a student on the back at graduation would be acceptable and doing so as encouragement before an exam would not be.

30. School Board Policy 3210.01 (Code of Ethics) is comparable to the Principles of Professional Conduct, and includes requirements to protect students from conditions harmful to learning and to the student’s mental and physical health and safety, and prohibitions against violating student rights and harassing or discriminating against students. No violation of this policy has been proven in this case.

31. School Board Policy 3213 (Student Supervision and Welfare) provides in pertinent part:

    Staff members shall not engage in unacceptable relationships and/or communications with students. Unacceptable relationships and/or communications with students include, but are not limited to the following: dating; any form of sexual touching or behavior; making sexual, indecent or illegal proposals, gestures or comments; and/or exploiting an employee-student

    
    

    relationship for any reason. Any sexual or other inappropriate conduct with a student by any staff member will subject the offender to potential criminal liability and discipline up to and including termination of employment.

    
    

32. No persuasive evidence was presented to demonstrate a violation of this policy. No evidence was presented to indicate that Respondent was dating a student or making any form of sexual advance or proposal, or that he was exploiting a student in any respect. The only possible basis for a violation would be the use of the term “deez nuts,” in that there was some testimony by a student, R.M., that the phrase, slang for “I don’t care,” also referred to male genitalia. However, the policy prohibits sexual comments, and there was no testimony that the term “deez nuts” had a sexual connotation.

33. School Board Policy 5630 prohibits the use of corporal punishment and outlines the parameters for the use of reasonable force. The rule provides reasonable guidelines for when the use of force may be appropriate. However, this policy is simply not implicated in this case, as there was no testimony that Respondent was seeking to use force, reasonable or otherwise. He was simply encouraging his students to do well.

34. Collectively, the evidence did not support a violation of the rules of the State Board of Education or the School Board policies cited by Petitioner. No basis exists for a finding of

    
    

    misconduct as charged in Count I of the Notice of Specific Charges.

35. Count II charges Respondent with gross insubordination.

    
    

    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.” As noted above, the School Board did not prove that Respondent used profanity or inappropriate language in the classroom. The only basis for finding that he committed gross insubordination would be to find that he violated a directive given to him more than 20 years ago.

36. It is true that in 1995, Respondent was directed not to touch students. That directive, not given at a School District level, was in response to a complaint about inappropriate touching, i.e., massages by students given in the classroom. It does not reasonably translate to the situation here, where Respondent was patting students on the back to encourage them to do well. Compare Packer v. Orange Cnty. Sch. Bd., 881 2d 1204,

    1208 (Fla. 5th DCA 2004). While a no touch policy may be what Petitioner is seeking, this somewhat sterile approach to education is not reflected in the School Board’s policies placed into evidence. No evidence was presented that there was a no touch policy in place in 1995, which calls into question whether there

    
    

    was authority to even give this directive that appears to go further than the School Board policies in place.2/

37. Moreover, the definition of gross insubordination requires that the action be intentional. In other words, the person to whom the order is given must understand the reach of the order in question and deliberately act in a manner that defies the order given. Here, the directive in question was given over

    20 years prior to the incident giving rise to these proceedings, in a significantly different context. It is clear from

    Mr. Clark’s testimony that he did not believe patting students on the back was a violation of that order.

38. Here, the facts as presented do not rise to the level of

gross insubordination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board rescind its order suspending Respondent without pay, and reimburse him for the period for which he was not paid.

DONE AND ENTERED this 13th day of August, 2018, in Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

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 13th day of August, 2018.

ENDNOTES

1/ Ms. Gonzalez speaks English as a second language, and had an interpreter at hearing as a precaution. There are times where her testimony seems wildly inconsistent with her written statements. For example, at hearing she stated that “some students jolt,” and that their reactions were “pain faces.” Similarly, when asked whether the students said anything to her, she testified as follows:

Q. Did any student say that they were in some way hurt or objected to Mr. Clark patting them on the back?

A. During the event?

Q. Yeah.

A. Yes.

Q. Which students?

A. The students in the middle. I don’t recall the names, because they were not my students.

Q. Okay.

A. I remember they were in the middle, because I have to set – to set the seating. And there is a seating chart also.

Q. Did they say anything to you?

A. No, they didn’t.

Q. You just interpreted what their facial expression was?

A. They – they scream.

Q. They screamed?

A. They say – they look at that – at him. But I don’t recall anything specifically.

Q. Okay. You see where it says question Number 8, right there on that page?

A. Uh-huh.

Q. The answer, it says: “No, the student was not injured. However they made an expression after they were hit to show they didn’t like being hit by Mr. Clark.”

A. Yes.

Q. They didn’t say anything, did they?

A. I can’t recall specific words.

In her written statement, as noted in paragraph 8, she stated that she thought Respondent’s interaction with the students was his way of communicating with them.

2/ With respect to the 1995 complaint against Respondent, the alleged conduct giving rise to the complaint and the admonition to Respondent would have been appropriately addressed under School Board Policy 3213 (Student Supervision and Welfare), given that the complaint included massages by students in the classroom, clearly a form of touching going beyond the occasional clap on the back or handshake. Nothing along those lines is presented here.

COPIES FURNISHED:

Mark Herdman, Esquire Herdman & Sakellarides, P.A. Suite 110

29605 U.S. Highway 19 North

Clearwater, Florida 33761 (eServed)

Christopher J. La Piano, Esquire Miami-Dade County School Board Suite 430

1450 Northeast Second Avenue Miami, Florida 33132 (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)

Alberto M. Carvalho, Superintendent Miami-Dade County School District Suite 912

1450 Northeast Second Avenue Miami, Florida 33132-1308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 17-005796TTS

Orders for Case No: 17-005796TTS