STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MIAMI-DADE COUNTY SCHOOL BOARD, Petitioner, vs. DWIGHT T. STEVENS, Respondent. / | Case No. 19-5700TTS |
RECOMMENDED ORDER
Pursuant to notice, an administrative hearing was conducted by Zoom conference in Miami-Dade County, Florida, on March 4, 2020, and July 30, 2020, before Administrative Law Judge, Robert Kilbride of the Division of Administrative Hearings ("DOAH").
APPEARANCES
For Petitioner: Christopher J. La Piano, Esquire
Miami-Dade County School Board 1450 Northeast 2nd 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
Whether "just cause" exists to authorize Respondent's dismissal from employment with the Miami-Dade County School Board ("MDCPS"), for the violation(s) outlined in Petitioner's Amended Notice of Specific Charges.
PRELIMINARY STATEMENT
On September 4, 2019, MDCPS suspended Respondent, Dwight T. Stevens, without pay, and initiated dismissal proceedings against him. Respondent requested a hearing pursuant to sections 120.569 and 120.57(1), Florida Statutes, and the matter was referred to DOAH to conduct a hearing.
The final hearing began on March 4, 2020, was adjourned, reconvened, and concluded on July 30, 2020. Petitioner presented the live testimony of Detective Michael Alexander, Nayeli Aguilar, I.G., Shelsea Marin, S.P., Eric Cardenas, A.M., Dennis Carmona, Tony Ullivarri, and Carmen Molina. Petitioner's Exhibits 1 through 11 were admitted into evidence.
Respondent testified on his own behalf and also presented witnesses Dr. Lashinda Moore, Jerry Paret, Joseph Reyes, Jonathan Felix, N.M., Malcolm Nicholas, Jonathan Lavernia, Jesus LaMadrid, and Tyreek
Eccleston. Respondent's Exhibits 1 through 11 were admitted into evidence.
References to Petitioner's exhibits will be preceded by "Pet." followed by the exhibit number. References to Respondent's Exhibits will also be preceded by "Resp." followed by the exhibit number. (In some instances, specific page numbers of an exhibit may also be identified).
The statutes, policies, and law in effect at the time of the incident(s) or conduct have been used.
FINDINGS OF FACT
Based on the evidence presented and the record as a whole, the undersigned makes the following findings of material and relevant fact.
Stipulated Facts
At all times material hereto, Petitioner was a duly-constituted School Board charged with the duty to operate, control, and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to Article IX § 4(b) Constitution of the State of Florida and section 1012.23, Florida Statutes.
At all times material hereto, Respondent was employed pursuant to a professional service contract at Campbell Drive K-8 Center, a public school in Miami-Dade County, Florida ("also known as LEOMHS").
At all times material hereto, Respondent's employment was governed by the collective bargaining agreement ("CBA") between Miami-Dade County Public Schools and the United Teachers of Dade, as well as the policies of MDCPS and Florida law.
Facts Established at the Hearing
Respondent's Termination from the City of Aventura
In 2000, Respondent was hired as a police dispatcher by the City of Aventura, Florida ("COA"). Respondent became a police officer where he served until March 24, 2011. Pet. Ex. 4A.
On March 24, 2011, Respondent was called to a meeting with several Aventura Police Department ("APD") officials. At the meeting, he was confronted with evidence that he had purposely misrepresented the amount of overtime hours he had been working. At the meeting, Respondent's employment was terminated. Pet. Ex. 4D, p. 45.
Respondent's manner or reasons for departure from APD became a point of contention in this case. In short, Petitioner alleged that Respondent falsified his application to work at LEOMHS, by leaving out certain information regarding his termination from APD. Petitioner further alleges that this served as an independent basis to terminate him from employment with MDCPS.
At the final hearing, Respondent explained that he had mistakenly entered his overtime hours incorrectly at APD. According to the investigative report issued by APD, Respondent admitted to a fellow officer after his termination that a portion of the overtime hours he did not work was because "he got behind on his bills." Pet. Ex. 4D, p. 45.1
Following his termination at APD, Respondent filed a charge of discrimination with the Equal Employment Opportunity Commission in September 2011 and sued APD in May 2012.
APD and Respondent settled the lawsuit. They entered into a settlement agreement in November 2012. The agreement contained a confidentiality provision. Pet. Ex. 4C, pp. 28, 32-33; Pet. Ex. 4A.
There was no real dispute in this case that the express terms of the confidentiality provision, reasonably interpreted, prohibited Respondent from disclosing or discussing the facts of the case, the terms of the settlement or the circumstances surrounding the matter with any other person. Pet.
The confidentiality provision with APD also provided that if it was breached by Stevens, a $2,000.00 liquidated damages penalty would be assessed against him, and injunctive relief and payment of the City's attorney's fees against Stevens could be awarded.
Application for Employment at MDCPS
In 2013, Respondent first applied for a position with MDCPS as an interventionist. As part of the application process, Respondent filled out an electronic questionnaire using the E-Recruiting system. Question Number 25 of that questionnaire asked Respondent the following: "Have you ever been disciplined, the subject of an investigation, reprimanded, suspended, non-
1 Regardless, it is important to note that Respondent's conduct at APD is not the crux or primary issue in this case, nor did his misconduct at APD form the basis for this termination. Rather, the issue here is whether Respondent improperly answered the relevant questions on his MDCPS applications; and, if so, whether this justifies his termination.
2 Petitioner has made no compelling argument to the contrary.
reappointed for performance reasons, terminated, requested to resign through mutual agreement, or resigned in lieu of termination from an educational institution, the State of Florida or any other employer/organization, including the military?"
In response to this question, Respondent answered "No." Pet. Ex. 10, p. 121.
Sometime after filling out the first questionnaire, Respondent applied for a full-time position with MDCPS as a teacher. By this time, MDCPS was using a different employment application system called PowerSchool. This system required Respondent to fill out a questionnaire with a similar question.
Question Number 3 asked: "Have you ever been disciplined, the subject of an investigation, reprimanded, suspended, non-reappointed for performance reasons, terminated, requested to resign through mutual agreement, or resigned in lieu of termination from any employer/organization, including the military?" In response to this question, Respondent also answered "No." Pet. Ex. 10, p. 124.
Had Respondent answered either of these questions with a "Yes," his applications would have been forwarded to the Office of Professional Standards ("OPS") for further review. OPS would have gathered additional, follow up information. After reviewing this additional information, OPS would then make the decision of whether to hire.
Carmen Molina ("Molina"), the District Director of OPS, testified that had Respondent answered in the affirmative to either question, "in his experience" Respondent would not have been hired.3
3 In light of testimony credited by the undersigned regarding Respondent's conversation with the new principal and assistant principal at LEOMHS about his confidentiality provision with APD, this speculative testimony by Molina carries limited weight. More directly, there was no affirmative and persuasive evidence offered for this specific case that Respondent's failure to answer the question in the affirmative would have resulted in him not being hired. The only thing that is certain is that it would have been referred to OPS for "further review." This evidentiary point and distinction are important. Someone's "experience" may prove to be
At the final hearing, Respondent steadfastly denied being untruthful on the MDCPS application. He explained that he was initially uncertain of what the answer should be, in light of the binding confidentiality provision he had signed with COA. He understandably sought and needed advice from his prior counsel regarding his rights under the circumstances. After consulting with counsel, who investigated the matter, and upon his counsel's strict direction, he answered "No" to the application question.
Added to this explanation, and perhaps more importantly, the undersigned credits Respondent's testimony that before he applied for the Interventionist position at LEOMHS, he met informally with Principal Chin ("Chin") and Assistant Principal, Dr. Lashinda Moore. Both were interested in meeting him after hearing about Respondent from mutual acquaintances.
During this introductory meeting to discuss his experience and what he could offer to support the school's criminal justice program, he informed them both that he had a "non-disclosure agreement" with APD and that he had voluntarily resigned from that job. He also told them that the confidentiality provision prevented him from discussing the facts of his case against COA.4
After learning of Respondent's dilemma and the restrictions he was under, Chin informed Respondent that his dispute and confidentiality provision with APD would not be a problem. The principal was more concerned with whether his dispute with COA involved a felony conviction, a drug related problem, or improprieties involving children. Chin was satisfied
true--but it may not. In this case, for instance, there are unique circumstances that may have resulted in Respondent being hired after OPS investigated and gathered additional information. At a minimum, the undersigned is left wondering what would have occurred?
This is particularly true since the principal, an authorized representative of the District, was aware that Respondent had issues of some sort at APD, but told him it would not be an impediment to his hiring at LEOMHS, so long as his background check was passed.
4 This information he shared was accurate. See Pet. Ex. C, p. 28 of 124.
with Respondent's explanation, so long as he could pass a criminal background check.
Dr. Moore was offered at the hearing as a witness by Respondent. Although she admitted meeting Respondent at an introductory meeting consistent with his testimony, she did not "recall" discussing any confidentiality agreement with Respondent. However, she did not affirmatively testify that the discussion about Respondent's APD resignation did not occur. Unfortunately, former principal Chin was not called by either party to corroborate or refute Respondent's version of the pre-hiring discussion.
Respondent offered distinct and clear testimony that the pair told him it was "not an issue" and they only cared if he could pass a background check.
Based on the more detailed, clear, and specific recollection offered by Respondent, he established that he adequately disclosed to Chin and
Dr. Moore that he had been involved in a workplace dispute with COA. Both were authorized representatives of Petitioner.
In light of this, Respondent did not intentionally mispresent or fail to disclose any material facts to MDCPS concerning his dispute with COA. The Nature of the Education Provided at LEOMHS
Principal Tony Ullivari ("Ullivari") began working at LEOMHS in the 2018-2019 school year. In addition to traditional high school subject matters, the school offers unique academic tracks in the areas of homeland security, law, and forensic science.
The homeland security track offers students training in the areas of criminal justice and police dispatching. Respondent was the lead homeland security teacher and taught criminal justice and police dispatch classes to the students.
The curriculum for the homeland security program was developed prior to Ullivari's arrival by Respondent and the prior administration. There
was, however, a general framework for the topics provided by the state of Florida. Respondent developed the lesson plans for defensive tactics courses.
As part of the coursework, Respondent developed a Defensive Tactics curriculum ("DT") and also a program Respondent came up with on his own referred to as "extended defensive tactics ["EDT"]." On a day-to-day basis, Respondent was the one who decided what would be taught in classes inolving DT and EDT.
The program was conducted under a paramilitary command structure and emphasized discipline.
Respondent described the DT program as a "system of controlled defensive and offensive body movements that are used by criminal justice officers around this country to respond to a suspect's aggression or resistance. It's a combination of boxing, martial arts and wrestling."
There was no serious dispute that the DT program involved a sanctioned and frequent amount of close physical contact and maneuvers between students, and between students and trainers.
The DT training ordinarily began in the students' sophomore year. However, any student could participate in the related Florida Public Service Association ("FPSA") competitions involving DT.
According to Respondent, he developed EDT because he takes such training "very seriously" and believes it is important for a career in law enforcement and for self-defense.
To ensure that the parents' of the students were aware of the training curriculum and defensive tactics that were taught, Respondent utilized a written permission form. Resp. Ex. 1 and 2. The form was approved by the administration and provided to the students and parents.
The form was thorough and clearly disclosed to the parents that DT and EDT would involve a list of activities that included close physical contact. The form further explained that while defensive tactics were "inherently dangerous," they would be conducted in a "very safe and structured manner."
According to Ullivari and several of Petitioner's witnesses, as well as some of Respondent's own witnesses, DT was supposed to be taught at several locations, depending on availability.
The most ideal and preferred location was the DT room of the City of Miami police station, located in a building adjacent to the school. This room is entirely padded and was, therefore, the safest place for DT instruction.
The second best place to conduct DT classes was the school gymnasium where there are ample mats for safety.
A third, but acceptable choice, was Respondent's classroom where furniture such as desks and chairs would be moved out of the way and a mat would be placed on the ground to better ensure student safety.
Respondent offered several photographs showing DT training being done within the confines of either a safe padded room, in controlled environments, or with the use of padded "Red Man" combat suits. Resp. Exs. 5-10.
None of these photographs depict DT being done without matting (when the students would be engaging each other on the ground).
According to one of Respondent's student witnesses, N.M., anytime DT took place in a classroom all the furniture would be cleared from the area to better ensure that it was "100% safe."
Another of Respondent's witnesses, Jesus LaMadrid, testified that anytime DT tactics required the students to be on the ground in the classroom, it "never" occurred without the furniture being moved and mats being used.
Respondent acknowledged that DT is a "high liability area [sic]" since it poses a greater risk of injury to his students. As a result, he took DT very seriously to help ensure that students were not injured. He testified that his emphasis on safety precluded him from permitting any "horseplay" whatsoever.
He described the DT training as "very disciplined and structured."
The undersigned credits Respondent's testimony and other evidence that he took active, sensible, and constant precautions to ensure, as best he could, that the DT was done in a structured and safe environment.
What is equally, if not more, significant is that Respondent's DT training and tactics were open, obvious, and well known by the administration at LEOMHS. In short, the defensive tactics training program taught by Respondent was fully sanctioned and approved by the administration at LEOMHS.
From the facts credited and their reasonable inferences, the undersigned also finds that MDCPS knew or should have known that high school students taking the sanctioned DT and EDT courses would likely engage in horseplay on occasion, especially those who were involved in DT training. Respondent controlled this to the best of his ability.
The undersigned also finds it a bit disingenuous for the administration to sponsor and encourage risky physical DT contact training at LEOMHS, yet jump normal disciplinary steps and impose the most punitive sanction of dismissal against the employee without any persuasive evidence that other sanctions were considered. This seems particularly unfair when the employee had no prior discipline and there was no evidence to suggest that he ever received counseling, warnings, or corrective suggestions.
The undersigned also finds that Respondent strove very hard to maintain control of his young and, frequently, rowdy and energetic students destined for careers in law enforcement. One has to ask: Did the administration seriously believe that occasional horseplay or other questionable physical contact would not occur within this environment?
Finally, the undersigned heard no persuasive evidence that the administration actively monitored or observed Respondent's DT training or warned and counseled Respondent about his tactics or other horseplay as mentioned in the CBA. See infra.
While these concerns do not excuse Respondent's failure to better control or prevent horseplay, it does support a conclusion that any penalty or discipline should fit the offense and take into account Respondent's lack of any prior discipline.
Further, the undersigned was able to observe Respondent's demeanor and attitude at the hearing. He was articulate, well-mannered, controlled, and responsible during his appearance at the hearing. The reasonable inference from these observations is that he handled himself in a similar manner as the DT trainer at LEOMHS.
Classroom Videos
The witnesses presented by Petitioner described a classroom environment in Respondent's class that at times was disciplined and structured, but on occasion, devolved into "horseplay" between the students and Respondent, as well as each other. Pet. Ex. 8, pp. 106.
Most of the horseplay was between Respondent and the male students, although females were sometimes involved. One of the student's also testified that they did not initially report the "horseplay" to the administration because the students were very fond of Respondent, and had just learned to accept this behavior from him.
The witnesses presented by Respondent testified that Respondent conducted himself very professionally and the classroom was always very regimented and "horseplay" was never allowed. If it occurred, those involved would be subject to swift reactions by Respondent.
Petitioner attempted to corroborate its allegations of "horseplay" by admitting into evidence two older cell phone videos. Pet. Ex. 11.
In the first video, Respondent is involved in what can best be described as a "soft take down" of him by several male students.
When the male students approach and take hold of him, Respondent does not resist or struggle. He goes along as he is slowly taken down to the floor by four or five male students. All the while students are laughing as
they surround him and take him to the ground. Respondent ends up on his back on the floor for four to five seconds.
As the students are getting off Respondent one-by-one, one of the male students stays pressed on top of Respondent--chest to chest. Notably, the student was not embraced or held down by Respondent.
In this position the male student rapidly thrust his hips multiple times while on top of Respondent. Everyone breaks out in laughter, and Respondent is promptly helped to his feet by several friendly students.
Significantly, Respondent is not being physically or verbally abusive to any of the students. They appear to be having fun with Respondent who reluctantly goes along with the maneuver and appears a little embarrassed by it all.
In the second video, Respondent is videoed through a classroom door window. He is on the floor, perpendicular to and on top of a male student who is face down.
Respondent is engaged in what appears to be a static defensive wrestling type hold and there was no movement by either. There are no other students present in the room, and there is no indication to determine if this was a part of any formal instruction.
It does not appear, and there was no other evidence to prove, that the male student was struggling, thrashing about, or that he suffered any injuries.
When confronted with these videos during the investigation, Respondent did not claim they were inaccurate, and told the investigating officer that he believed the videos had been shot approximately two years prior.
At the hearing, Respondent explained the videos in more detail. As to the first video, he claimed he was trying to show a group of students how suspects can sometimes achieve "superman powers" that require a group of officers to take down a suspect.
As to the second video, Respondent claimed he was doing EDT with a student that involved using loud verbal commands.
The videos are reasonably consistent with the explanations offered by Respondent.
Incidents with Certain Students Student Nayeli Aguilar
During the course of the hearing, there were proven instances where Respondent's contact with several female students crossed the line, and was not appropriate.
For instance, during the 2017-2018 school year, Nayeli Aguilar ("Aguilar") was a junior at LEOMHS. She participated in the FPSA program. As part of that program the students took a field trip to the Broward County Sheriff's Office ("BCSO").
She testified that on the bus ride either to or from the BCSO, she recalled that Respondent sat next to her. He placed his hand on her thigh and then slid it higher on her thigh before she grabbed his forearm to make him stop. Respondent then let go.
There was no evidence that Respondent massaged or caressed her thigh.
Aguilar was stunned by the incident and stated that she felt violated. She did not report the incident at the time because she was an officer in Respondent's class and did not want to violate the "code" by snitching on other law enforcement personnel. She was also too embarrassed. There were no other witnesses.
During the 2018-2019 school year, there was another incident during which she and Jonathan Lavernia ("Lavernia") were doing paperwork in the back of Respondent's classroom. They spontaneously began to play fight with one another.
Lavernia lightheartedly called for "backup" (Signal "3-15"), which alerted Respondent to come to the back of the classroom. Respondent participated in the play fighting by wrestling with her to the floor.
Once on the floor, Respondent performed a "pressure point" on her thigh, leaving a minor bruise. Aguilar identified pictures she took of the bruise at the hearing and testified that she did not report this incident because she was too embarrassed. Pet. Ex. 7, p. 80.
Even after these incidents, she still looked up to Respondent and went to his classes. But she felt that it was best to keep her distance from him because he had crossed the line and acted inappropriately with her.
During the 2018-2019 school year, I.G. was a junior at LEOMHS. She had Respondent as a teacher in the FPSA program.
One day during a lunch period in either October or November of the 2018-2019 school year, she was play fighting with Respondent, and he took her down to the ground. While she was on the floor, Respondent slapped her on the butt three times.
According to I.G., she and other students had a comfortable enough relationship with him that they would push or shove him and play fight, but this time she felt it went too far.
While the incident made her uncomfortable, she had an attachment to Respondent at the time, and just chalked it up to Respondent being himself.
At the time of the school's investigation she believed the incident was being blown out of proportion, but suggested that Respondent had crossed a line he should not have. Pet. Ex. 8, p. 106.
Shelsea Martin ("Martin"), a senior at LEOMHS, also testified. She witnessed this incident between I.G. and Respondent.
The only significant difference between their testimony is that Martin believed there was one butt slap, which occurred while Respondent was
lifting I.G. up from the ground. I.G. appeared to Martin to be shocked by what had happened.
While Martin stated that play fighting with Respondent was common, the butt slapping was unusual and was "like a red flag" to her. Pet. Ex. 8,
p. 105. She testified that she reported this incident to Ms. Joseph at some point in time, close to the day it occurred.
There was no evidence presented to prove that during this incident Respondent squeezed, grabbed, or caressed I.G.'s buttocks.
During the 2018-2019 school year, S.P. was a junior at LEOMHS and Respondent was her teacher. During the year she would play fight with Respondent in jest--playfully hitting and pushing each other.
She testified that sometimes he would grab her thigh when she was sitting next to him. This occurred several times. Respondent applied a "pressure points" on her thigh and squeezed it.
Initially, she was not affected by it because such behavior was "normalized [sic]" in Respondent's class, but eventually stopped play fighting with him. Pet. Ex. 8, p. 107.
There was no evidence presented to prove that during this incident Respondent rubbed or caressed the female student's thigh.5
During the 2018-2019 school year, Eric Cardenas ("Cardenas") was a senior at LEOMHS. He testified that one day while entering Respondent's classroom late, the class was watching a video. As he entered the room Respondent spontaneously put him in the corner and grabbed at his crotch area.
Cardenas also testified that Respondent would communicate with him via Snapchat while he was a student. On one occasion Respondent sent
5 It is noted that training, in the use of "pressure points," was listed on the parental permission form.
Cardenas "what appeared to be" a picture of someone on a toilet that contained either human excrement or a penis.
Whatever the picture was, it made Cardenas uncomfortable. He did not elaborate. As is customary with pictures sent via Snapchat, the picture disappeared after a few seconds. Pet. Ex. 8, p. 109.
However, Cardenas did not attempt to keep a "screen shot" of the alleged Snapchat picture. His testimony regarding the contents of the picture was vague and indistinct. Despite a classroom full of students, there were no witnesses presented by Petitioner to corroborate the "crotch grabbing" incident that allegedly occurred during the video showing.
Respondent unequivocally denied that either incident took place. The evidence from Cardenas was not credible or persuasive.
The undersigned finds Respondent's testimony more credible and persuasive, and finds that the incidents were not adequately proven by Petitioner to have occurred.
During the 2018-2019 school year, A.M. was a student at LEOMHS and participated in the FPSA program. During the school year she recalled two separate incidents between Respondent and her that she felt were inappropriate.
She testified that after school one day, during the FPSA program, Respondent spontaneously laid her down to the ground with a leg move while in the hallway. He pinned her to the ground and slapped her butt. This made her feel uncomfortable.
She claimed that another student, A.W., was present and she spoke to her about it. A.W. was not called as a witness to corroborate the incident. She only provided a brief written statement.
A.M. wrote in her written statement submitted to MDCPS that she "laughed off the incident."
Her written statement contradicted her testimony, in part. Unlike her live testimony, her written statement added that she tried to drop
Mr. Stevens to the ground first, but couldn't.
She said that during this second incident, while she was training for incident report writing, Lavernia pinned her to the ground and Respondent slapped her butt. T. pp. 182-183; Pet. Ex. 8, p. 110.6
She explained that she and the other students would joke about the things Respondent would do because they were not aware at the time that these were things a teacher should not do.
A.M.'s testimony was vague and not persuasive. It does not support a finding that Respondent slapped her butt in this second incident.
Respondent had a fairly close and personal relationship with one of his higher ranking officers, Jonathan Lavernia. That close relationship still exists today.
On direct examination Lavernia testified that he had stayed at Respondent's home for a few days after Hurricane Irma. This was done with the approval of Lavernia's parents and due to disruption of services at his home.
According to Lavernia, Respondent occasionally gave him rides to school in his private vehicle. Principal Ullivari never gave Respondent permission to either transport Lavernia in his car or let him sleep at his house and was unaware that this violation of MDCPS policy was occurring.
Under the circumstances which existed, these limited instances of providing needed housing and transportation assistance to Lavernia, did not rise to the level of severe or serious misconduct by Respondent.
6 Interestingly, it was only after prompting during cross examination, that A.M. even mentioned a second incident.
Other Relevant Facts
Respondent was employed by Petitioner beginning in August 2013. Pet. Ex. 9. During that six-year period, there was no evidence presented that Respondent had ever been the subject of any prior disciplinary proceedings or misconduct.
Therefore, these allegations of misconduct in office are Respondent's first instances of potential infractions or disciplinary action while at MDCPS.
Based on the Findings of Fact, the nature of the physical contact inherent in the close contact DT training, and the testimony that there did not appear to be any significant physical or mental harm to the participants, the undersigned finds that any horseplay during classroom training did not constitute severe or serious misconduct.
The horseplay involved does not justify Respondent' dismissal from employment under the progressive discipline policy in place at MDCPS. See generally, Quiller v. Duval Cty. Sch. Bd. 171 So. 3d 745 (Fla. 1st DCA 2015) ("…[T]he progressive disciplinary policy mandated that the Board was required to follow progressive steps in administering discipline unless a severe act of misconduct warranted circumventing the steps.").
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter and the parties pursuant to sections 120.569 and 120.57(1), Florida Statutes.
MDCPS must prove the allegations in its Amended Notice of Specific Charges by a preponderance of the evidence. See McNeill v. Pinellas Cty. Sch. Bd., 678 So. 2d 476 (Fla. 2d DCA 1996); Allen v. Sch. Bd. of Dade Cty., 571 So. 2d 568, 569 (Fla. 3d DCA 1990); and Dileo v. Sch. Bd. of Dade Cty., 569 So. 2d 883 (Fla. 3d DCA 1990).
"A 'preponderance' of the evidence is defined as the 'the greater weight of the evidence,' or evidence that 'more likely than not' tends to prove
a certain proposition." Gross v. Lyons, 763 So. 2d 276, 280 n.1 (Fla. 2000);
Black's Law Dictionary 1201 (7th ed. 1999).
Applicable Statutes and Policies
It is helpful to outline the array of applicable laws and policies. They are set out below:
COUNT I – MISCONDUCT IN OFFICE
Under State Board Rule 6A-5.056, "Misconduct in Office" means one or more of the following:
A violation of the Code of Ethics of the Education Profession in Florida 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.;
A violation of the adopted school board rules;
Behavior that disrupts the student's learning environment; or
Behavior that reduces the teacher's ability or his or her colleagues' ability to effectively perform duties.
Respondent violated Florida Administrative Code Rule 6A-5.056 in several instances as described more fully below.
The Code of Ethics of the Education Profession in Florida, rule 6A-10.081, provides as follows:
Florida Educators shall be guided by the following ethical principles:
The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, and the nurture of a democratic citizenship. Essential to the achievement of these standards are the freedom
to learn and to teach and the guarantee of equal opportunity for all.
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 community, the educator strives to achieve and sustain the highest degree of ethical conduct.
Florida educators shall comply with the following disciplinary principles. Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator's certificate, or the other penalties as provided by law.
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.
* * *
Shall not intentionally expose a student to unnecessary embarrassment or disparagement.
Shall not intentionally violate or deny a student's legal rights.
* * *
8. Shall not exploit a relationship with a student for personal gain or advantage.
(c) Obligation to the profession of education requires that the individual:
1. Shall maintain honesty in all professional dealings.
* * *
Shall not misrepresent one's own professional qualifications.
Shall not submit fraudulent information on any document in connection with professional activities.
Shall not make any fraudulent statement or fail to disclose a material fact in one's own or another's application for a professional position.
Respondent violated rule 6A-10.081(2)(a)1. and 5. He engaged in several instances of inappropriate physical contact with female students and made them feel uncomfortable and embarrassed. In one case, Respondent caused a female student physical harm and slight bruising when applying a pressure point. Moreover, he exploited his relationships with these students by engaging them in inappropriate physical contact.
Conversely, however, the undersigned concludes that Petitioner did not carry its burden of proving that Respondent violated this rule by making any fraudulent statement(s) on his employment applications.
School Board Policy 3210, Standards of Ethical Conduct, provides, in relevant part:
All employees are representatives of the District and shall conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system.
A support staff member with direct access to students 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.
* * *
7. [N]ot intentionally expose a student to unnecessary embarrassment or disparagement.
* * *
9. [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.
* * *
17. [M]aintain honesty in all professional dealings.
* * *
22. [N]ot engage in harassment or discriminatory conduct which unreasonably interferes with an individual's performance of 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
* * *
21. [N]ot use abusive and/or profane language or display unseemly conduct in the workplace.
* * *
[N]ot misrepresent one's own professional qualifications.
[N]ot submit fraudulent information on any document in connection with professional activities.
[N]ot make any fraudulent statement or fail to disclose a material fact in one's own or another's application for a professional position.
Respondent violated School Board Policy 3210(3) and (7) by touching several female students in ways that were harmful to their mental well-being or exposed them to unnecessary embarrassment.
It was not proven by Petitioner that Respondent violated this policy by making any false representations on his applications for employment.
School Board Policy 3210.01, Code of Ethics, provides in relevant part:
All members of the School Board, administrators, teachers and all other employees of the District, regardless of their position, because of their dual roles as public servants and educators are to be bound by the following Code of Ethics. Adherence to the Code of Ethics will create an environment of honesty and integrity and will aid in achieving the common mission of providing a safe and high quality education to all District students.
As stated in the Code of Ethics of the Education Profession in Florida (State Board of Education
F.A.C. 6A-10.081):
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, students, parents, and other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.
* * *
This Code of Ethics applies to all members of the Board, administrators, teachers, and all other employees regardless of full or part time status. It also applies to all persons who receive any direct economic benefit such as membership in Board funded insurance programs.
Employees are subject to various other laws, rules, and regulations including but not limited to The Code of Ethics for the Education Profession in Florida and the Principles of Professional Conduct of the Education Profession in Florida, F.A.C. Chapter 6A-10.081, the Code of Ethics for Public Officers and Employees, found in F.S. Chapter 112, Part III, and Policy 4129, which are incorporated herein by reference and this Code of Ethics should be viewed as additive to these laws, rules and regulations. To the extent not in conflict with any laws, Board policies or governmental regulations, this Code of Ethics shall control with regard to conduct. In the event of any conflict, the law, regulation or Board policy shall control.
The fundamental principles upon which this Code of Ethics is predicated are as follows:
Honesty--Dealing truthfully with people, being sincere, not deceiving them nor stealing from them, not cheating nor lying.
* * *
Respect--Showing regard for the worth and dignity of someone or something, being courteous and polite, and judging all people on their merits. It takes three (3) major forms: respect for oneself, respect for other people, and respect for all forms of life and the environment.
Responsibility--Thinking before acting and being accountable for their actions, paying attention to others and responding to their needs. Responsibility emphasizes our positive obligations to care for each other.
Each employee agrees and pledges:
To abide by this Code of Ethics, making the well- being of the students and the honest performance of professional duties core guiding principles.
To obey local, State, and national laws, codes and regulations.
To support the principles of due process to protect the civil and human rights of all individuals.
To treat all persons with respect and to strive to be fair in all matters.
To take responsibility and be accountable for his/her actions.
To avoid conflicts of interest or any appearance of impropriety.
To cooperate with others to protect and advance the District and its students.
To be efficient and effective in the performance of job duties.
The undersigned concludes that Petitioner did not present sufficient or persuasive evidence to prove any violations of School Board Policy 3210.01.
School Board Policy 3213, Student Supervision and Welfare, provides, in pertinent part:
Protecting the physical and emotional well-being of students is of paramount importance. Each instructional staff member shall maintain the highest professional, moral, and ethical standards in dealing with the supervision, control, and protection of students on or off school property.
* * *
B. Staff members shall provide proper instruction in safety matters.
* * *
Staff members shall not inappropriately associate with students at any time in a manner which may give the appearance of impropriety, including, but not limited to, the creation or participation in any situation or activity which could be considered abusive or sexually suggestive or involve illegal substances such as drugs, alcohol, or tobacco.
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.
* * *
If a student approaches a staff member to seek advice or to ask questions regarding a personal problem related to sexual behavior, substance abuse, mental or physical health, and/or family relationships, etc., the staff member may attempt to assist the student by facilitating contact with certified or licensed individuals in the District or community who specialize in the assessment, diagnosis, and treatment of the student's stated problem. However, under no circumstances should a staff member attempt, unless properly certified, licensed and authorized to do so, to counsel, assess, diagnose, or treat the student's problem or behavior, nor should such staff member inappropriately disclose personally identifiable information concerning the student to third persons not specifically authorized by law.
Staff members shall not transport students in a private vehicle without the approval of the principal.
Students shall not be required to perform work or services that may be detrimental to their health.
Respondent violated School Board Policy 3213 because he made sexually suggestive touching and physical overtures to several female students.
Finally, Section 1, B. F. 2. of the CBA (page 6 of 124) must also be considered. It provides, in pertinent part, that:
From the beginning of the year, administrators and supervisors should make every reasonable effort to assist unit members to perform their duties successfully. … Employees should have been notified, in writing, of deficiencies and of corrective action deemed appropriate…Follow up conferences should then serve to indicate the degree to which
success has been achieved in correcting deficiencies.
There was no evidence presented by Petitioner that the administration at LEOMHS made "every reasonable effort" to engage in this interactive process with Respondent. And while it is true that a host of issues all came to light during the investigation, a CBA provision such as this would be meaningless unless the administration had a concomitant duty to more regularly observe, monitor, and provide oversight to Respondent's training classes--which it did not do.
This failure by MDCPS raises serious questions about the legitimacy of the discipline Petitioner seeks in this case. How can the most punitive step of discipline--dismissal--be abruptly imposed when the employer provided little, if any, oversight, and failed to make "every reasonable effort" to assist the employee and help him to improve, as required by this CBA provision? Other Applicable Laws
In a DOAH hearing, the case is considered de novo by the Administrative Law Judge ("ALJ") based on the facts and evidence presented at the hearing. This means that the evidence is heard and considered again. There is no "presumption of correctness" that attaches to the preliminary decision of the agency. Fla. Dep't of Transp. v. J.W.C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981), and Boca Raton Artificial Kidney Ctr., Inc. v. Fla. Dep't of HRS, 475 So. 2d 260 (Fla. 1st DCA 1985).
Factual findings in a recommended order are uniquely within the province of the ALJ, based on the broad discretion afforded to him or her. Goin v. Comm'n on Ethics, 658 So. 2d 1131 (Fla. 1st DCA 1995). See also Heifetz v. Dep't of Bus. Reg., Div. of Alcoholic Beverages & Tobacco 475 So. 2d 1277 (Fla. 1st DCA 1985).
More specifically, the ALJ has the best vantage point to resolve conflicts, determine the credibility of witnesses, draw permissible and reasonable inferences from the evidence, and reach ultimate findings of fact,
based on the competent and substantial evidence presented. Goin 658 So. 2d at 1138; Dep't of Bus. and Prof'l Reg. v. McCarthy 638 So. 2d 57 (Fla. 1st DCA 1994).
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, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995).
An agency may not substitute its own facts for that of the ALJ so long as there is adequate evidence in the record to support the ALJ's factual findings. Lantz v. Smith 106 So. 3d 518 (Fla. 1st DCA 2013). See also Resnick
v. Flagler Cty. Sch. Bd., 46 So. 3d 1110, 1112–13 (Fla. 5th DCA 2010)("In a fact-driven case such as this, where an employee's conduct is at issue, great weight is given to the findings of the [ALJ], who has the opportunity to hear the witnesses' testimony and evaluate their credibility.").
Consideration and Application of Progressive Discipline
A fair outcome for this case cannot be reached without considering and applying progressive discipline.
More to the point, the CBA governing the relationship between MDCPS and the United Teachers of Dade expressly recognizes and adopts the doctrine of "progressive discipline." Pet. Ex. 1, at Section 1 A.
Although there is not a progression or list of disciplinary steps to be followed for particular offenses, the CBA states that "…the degree of discipline shall be reasonably related to the seriousness of the offense." Id.
In sum, MDCPS has agreed that the time-honored concept of progressive discipline is the polestar that should guide any disciplinary decisions it makes. Progressive discipline is widely used by both governmental agencies and private employers in Florida.
In general, parties who follow progressive discipline recognize that as the seriousness of the offense increases, or if there are repeated instances of the same or minor offenses, the discipline imposed increases in severity.
Consequently, under the concept of progressive discipline, one act of misconduct may result in minor discipline merely because it was a first offense, whereas the same misconduct, if repeated, could justify the imposition of major discipline, including termination. In other words, different penalties can be imposed for the same misconduct depending on the employee's record. See generally, In re Stallworth, 26 A.3d 1059 (N.J. Supreme Court 2011).
In the context of government agency cases, agencies and hearing officers often conclude that in the absence of a definition, or a specific list of progressive penalties, progressive discipline means that an employee is subjected to progressively more severe discipline when the standards of conduct continue to be violated for the same or similar offenses.
As demonstrated by this case, and in the absence of a list of progressive penalties, there are generally no hard and fast rules for progressive discipline. It is largely understood that the employer retains a fair amount of discretion to reasonably determine what discipline would be appropriate.
Notably, however, factors considered by government agencies to prevent arbitrary punishment include, but are not limited to: (1) the type or severity of the offense committed, (2) the number of times the employee has committed the same or similar offense, (3) the employee's past disciplinary record, (4) the extent to which the company's or agency's operations or personnel have been disrupted or affected by the offense, (5) the employee's years of service, and (6) how other employees committing similar offenses have been treated. This last factor is commonly understood to require that discipline be consistent with "past practice or custom."
This non-exclusive list of factors is sometimes referred to as the "Douglas factors," stemming from a frequently cited disciplinary case arising in the government context several years ago. Douglas v. Veterans Admin.,
5 M.S.P.B. 313, 5 M.S.P.R. 280 (1981).
The "Douglas factors" have become a staple in the government discipline context for many years. Douglas has been cited more recently with approval. Brown v. Napolitan, 380 Fed. Appx. 832 (11th C.A. 2010); Baird v. Dep't of the Army, 517 F.3d 1345 (Fed. Cir. 2008); Brown v. District of Columbia Public Emp. Relations Bd., 19 A.3d 351 (Dist. of Columbia C.A. 2011). See also, U.S. Postal Serv. v. Gregory, 534 U.S. 1 (2001).
Regarding the appropriate level of punishment under a progressive discipline program, there is also a body of case law in Florida that has developed to provide some guidance to agencies on the proper reach and scope of progressive discipline.
More particularly, the Florida Third District Court of Appeal has provided some useful instruction in school board discipline cases. In fact, the Florida Third District Court of Appeal has had the opportunity, on several occasions, to evaluate disciplinary decisions made by MDCPS in disciplinary cases involving the imposition of progressive discipline.
In three cases arising in the mid-1990's, the court reversed MDCPS for imposing disciplinary sanctions that were not warranted under the circumstances. The court recognized implicitly, if not directly, that the progressive discipline provisions of the CBA were controlling.
For instance, in Bell v. School Board of Dade County, 681 So. 2d 843 (Fla. 3d DCA 1996), the court determined that dismissal was too severe a penalty under a progressive discipline policy for an 11-year employee with no prior disciplinary action who engaged in sex with his girlfriend in a private area at the school.
Likewise, in Collins v. School Board of Dade County, 676 So. 2d 1052 (Fla. 3d DCA 1996), a 17-month suspension was found too severe under MDCPS's progressive discipline policy for a 26-year employee, without prior discipline, who jokingly brandished a knife at a coworker.
Finally, in Centellas v. School Board, 683 So. 2d 644 (Fla. 3rd DCA 1996), the court characterized the dismissal of a bus driver caught driving on a suspended license as "wildly excessive and disproportionate."
In this hearing, there was no evidence presented to prove or suggest that Respondent, a six-year employee, had been previously disciplined for any offenses. See Pet. Ex. 9, Summary of Conference-for-the-Record.
As a result, this case appears to be Respondent's first case in which any misconduct in office was charged or proven.
Nonetheless, and despite his lack of any prior record, Respondent's misconduct clearly warrants meaningful discipline that fits the offenses.
However, to be consistent with the CBA, as well as proper and fair, progressive discipline must be considered. Most importantly, whatever discipline is imposed should be reasonably related to the offense(s), taking into account the progressive discipline factors outlined above.
Likewise, any progressive discipline in this case must also consider the difficult and challenging nature of the DT training that Respondent was hired to teach.
Equally important is the recognition that the administration at LEOMHS sanctioned the DT training. It, therefore, had the obligation to monitor and provide more regular and intense oversight over Respondent's classes. See CBA, Section 1, B. F. 2.
While several students were affected, fortunately there was no persuasive evidence presented to prove that there was any emotional or psychological injury to any of the students involved.
Respondent's six years of effective service, untarnished by any prior infractions or complaints, cannot be overlooked and should also be considered.
Also noticeably absent was any persuasive evidence by Petitioner that it considered or evaluated whether some form of progressive discipline, short of dismissal, was more appropriate.
Upon a thoughtful and objective consideration by the undersigned, it is recommended that MDCPS carefully consider affording Respondent a chance to get back on track and continue to contribute to the successful development of students involved in the unique program he had effectively lead.
Making this determination is a question of ultimate fact for the undersigned to determine based on the competent substantial record evidence. See Costin v. Fla. A & M Univ. Bd. of Trs., 972 So. 2d 1084, 1086-87 (Fla. 5th DCA 2008)(holding that the ALJ's finding as to whether employee's misconduct justified dismissal based on terms of the university's progressive discipline rule, was "an 'ultimate fact' best left to the trier of fact under these circumstances"). See also Polk Cty. Sch. Bd. v. Jean Regan, Case
No. 19-4256TTS, 2020 WL 1016375 (Fla. DOAH, Feb. 26, 2020; Polk Cty. Sch.
Bd. Mar. 17, 2020).
In summary, the undersigned finds that Respondent violated Count I, Misconduct in Office, for the reasons and grounds cited herein. There was insufficient proof, however, to establish that Respondent improperly answered questions on his employment applications.
Applying the progressive discipline policy and guidance from the courts, the undersigned recommends that as an alternative to dismissal, Respondent should be required to serve a significant period of unpaid suspension. He should also be required to attend and successfully complete, at his expense, training related to proper physical interaction with students during DT training.
In determining the appropriate length for an unpaid suspension, the undersigned recommends that MDCPS apply the factors outlined above,
consider its past practice and decisions, as well as the guidance and comments provided by the courts.7
The undersigned recommends a period of unpaid suspension ranging from 30 to 60 days. Because the next step for a similar infraction would be dismissal, an unpaid suspension should precede dismissal under the circumstances and will properly sanction Respondent for his conduct.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board impose a 30 to
60 day unpaid suspension and order retraining as a fair and proper sanction under the unique circumstances of this case.
DONE AND ENTERED this 4th day of December, 2020, in Tallahassee, Leon County, Florida.
S
ROBERT L. KILBRIDE
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 4th day of December, 2020.
7 MDCPS is best suited to make the final decision on the length of a suspension period. See generally, Dep't of Prof'l Reg. v. Bernal, 531 So. 2d 967, 968 (Fla. 1988); Gonzalez-Gomez v. Dep't of Health, 107 So. 3d 1139 (Fla. 3rd DCA 2012).
COPIES FURNISHED:
Mark Herdman, Esquire Herdman & Sakellarides, P.A.
29605 U.S. Highway 19 North, Suite 110
Clearwater, Florida 33761-1526 (eServed)
Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 430
Miami, Florida 33132 (eServed)
Alberto M. Carvalho, Superintendent Miami-Dade County Public Schools
1450 Northeast Second Avenue, Suite 912
Miami, Florida 33132
Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Richard Corcoran, 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 |
|---|---|---|
| Apr. 08, 2021 | Agency Final Order | |
| Dec. 04, 2020 | Recommended Order | Misconduct in office involving physical contact training with several students in a high school defensive tactics class, while inappropriate in some instances, did not justify dismissal of the teacher, a 30 to 60 day unpaid suspension is recommended. |
