This case came before Administrative Law Judge Darren A. Schwartz of the Division of Administrative Hearings (“DOAH”) for final hearing on May 7, 2021, by Zoom conference.
For Petitioner: Christopher J. La Piano, Esquire
Herdman & Sakellarides, P.A.
29605 U.S. Highway 19 North, Suite 110
employment as a teacher, without pay, for 15 days.
Board (“School Board”), notified Respondent, Chermona L. Francois-Smith
(“Respondent”), of the School Board’s action to suspend her employment as a teacher, without pay, for 15 days. Respondent timely requested an administrative hearing. Subsequently, the School Board referred the matter to DOAH to assign an Administrative Law Judge to conduct the final hearing.
The Notice of Specific Charges contains certain factual allegations, and, based on those factual allegations, the School Board charged Respondent with Misconduct in Office. The final hearing was initially set for March 22, 2021. On March 10, 2021, the parties filed a joint motion for continuance. On March 10, 2021, the undersigned entered an Order granting the motion and resetting the final hearing for May 7, 2021.
The final hearing was conducted on May 7, 2021, with all parties present.
At the hearing, the School Board presented the testimony of Marvell Buck, Mark Fabel, and Dr. Monefe M. Young. The School Board’s Exhibits 1 through 7 were received into evidence. Respondent testified on her own behalf and presented the additional testimony of Cynthia Serure. Respondent did not offer any exhibits into evidence.
The one-volume final hearing Transcript was filed at DOAH on June 28, 2021. On July 8, 2021, the School Board filed an unopposed motion to extend the deadline for the parties to file proposed recommended orders. On July 9, 2021, the undersigned entered an Order granting the motion. The parties timely filed proposed recommended orders, which were considered in the preparation of this Recommended Order.
On May 5, 2021, the parties filed their Joint Pre-Hearing Stipulation, in which they stipulated to certain facts. These facts have been incorporated into this Recommended Order as indicated below. Unless otherwise indicated,
all rule and statutory violations are to the versions in effect at the time of the alleged violations.
The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Miami-Dade County, Florida.
Respondent has been a teacher for over 17 years. Most of her career has involved teaching special education “ESE” and/or “EBD” students. Respondent was first hired by the School Board in 2002 and worked at different schools over the years, including in Broward County, Florida. In 2015, Respondent returned to the School Board.
Since the 2019 school year, and at all times relevant to this case, Respondent has been employed at Linda Lentin K-8 Center, a public school in Miami-Dade County, pursuant to a professional services contract.
At all times relevant to this case, Respondent’s employment with the School Board was governed by Florida law, the School Board’s policies, and the collective bargaining agreement between the School Board and the United Teachers of Dade.
Disciplinary History
Respondent has not been the subject of any prior discipline from the School Board.
The September 24, 2019, Fight Involving A.J. and A.B.
The alleged conduct giving rise to the School Board’s proposed suspension of Respondent occurred on September 24, 2019, during the 2019- 2020 school year, at which time Respondent was an EBD teacher at
Linda Lentin K-8 Center. At that time, Ms. Buck, a paraprofessional, was
assigned to Respondent’s classroom.
EBD students have emotional and/or behavioral disabilities and often exhibit behavioral problems. Respondent’s EBD class was held in a
self-contained classroom and consisted of a total of nine male students ranging from grades six to eight. A.J. and A.B. were two of the students in Respondent’s class.
On September 24, 2019, while Respondent was conducting a lesson, A.J. and A.B. began arguing. The argument quickly developed into a physical altercation between A.J. and A.B.
A 43-second video captured relevant portions of the incident. At the start of the video, A.J and A.B. can be seen squaring off against each other. As they squared off, Respondent walked by A.J. and pushed him toward A.B.
At hearing, Ms. Buck persuasively and credibly testified that as Respondent pushed A.J. toward A.B., she heard Respondent state words to the effect of “move” or “get out of my way.”
After pushing A.J. toward A.B., Respondent retreated to her desk area and distanced herself from the incident.
In the meantime, with Respondent out of the way, A.J.’s and A.B.’s squaring off against each other escalated to a full-blown physical altercation in the classroom lasting at least 30 seconds.
After the fight commenced, Ms. Buck pushed the security call button and ultimately intervened by pulling the boys apart with the help of another student. Respondent did not take any action to try and stop the altercation between A.J. and A.B., or call security herself.
Mr. Fabel is an ESE staffing specialist with the School Board who trains district employees in Safe Crisis Management (“SCM”). All EBD teachers and paraprofessionals employed by the School Board are required to attend SCM training to learn how to deal with the behaviors of EBD students. EBD training lasts three days and instructs employees on how to manage student behaviors via non-physical and verbal interventions and, if necessary, physically. Both Respondent and Ms. Buck attended the required SCM training prior to the 2019-2020 school year.
Without objection, Mr. Fabel was qualified, at hearing, as an expert in the School Board’s SCM training. Mr. Fabel watched the video and persuasively and credibly testified at hearing regarding interventions Respondent could have used to rectify the situation when A.J. and A.B. were squaring off. For example, Respondent could have given the students clear and firm verbal commands to move away from each other and return to their seats. Respondent also could have utilized a “guided assist”--taking the students by the arm and moving them to another part of the classroom. Respondent also could have positioned herself in between A.J. and A.B. so that the students’ avenue of approach toward each other, and eye contact with each other, was blocked.
Mr. Fabel testified that when students are just squaring off, like A.J. and A.B. were at the beginning of the video, “they’re looking for somebody to intervene and keep them from getting into it.” However, Mr. Fabel persuasively and credibly testified that when Respondent walked away from the situation and went to her desk, it was a “green light for them to then go at one another.”
Respondent’s conduct on September 24, 2019, was inappropriate, reflected poorly upon herself and the School Board, and reduced Respondent’s ability to effectively perform her duties. Respondent could certainly have responded to A.J.'s and A.B.'s squaring off through means other than pushing
A.J. toward A.B. and retreating to her desk.
The persuasive and credible evidence adduced at hearing demonstrates that Respondent is guilty of misconduct in office in violation of Florida Administrative Code Rules 6A-5.056(2)(b) through (e) and
6A-10.081(2)(a)1. By pushing A.J. toward A.B. and retreating to her desk on September 24, 2019, Respondent violated rules 6A-5.056(2)(b) through (e) and 6A-10.081(2)(a)1., by disrupting the students' learning environment, thus reducing Respondent’s ability to effectively perform her duties; failing to make reasonable effort to protect the students from conditions harmful to
learning and/or to the students' mental and/or physical heath and/or safety. Respondent also violated School Board Policy 3210, Standards of Ethical Conduct, section A.3., which mirrors rule 6A-10.081(2)(a)1. Respondent also violated School Board Policy 3213, Student Supervision and Welfare, which requires that teachers protect the physical and emotional well-being of students by maintaining the highest professional, moral, and ethical standards in dealing with the supervision, control and protection of students on or off school property, and reporting immediately to a building administrator any safety hazard or other potentially harmful condition or situation she detects.
CONCLUSIONS OF LAW
DOAH has jurisdiction of the subject matter and the parties to this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes (2019).
Respondent is an instructional employee, as that term is defined in section 1012.01(2), Florida Statutes. The School Board has the authority to suspend instructional employees pursuant to sections 1012.22(1)(f), 1012.33(1)(a), and 1012.33(6)(a).
The School Board has the burden of proving, by a preponderance of the evidence, that Respondent committed the violations alleged in the Notice of Specific Charges and that such violations constitute “just cause” for dismissal. §§ 1012.33(1)(a) and (6)(a), Fla. Stat.; Dileo v. Sch. Bd. of Dade Cty., 569 So. 2d 883, 884 (Fla. 3d DCA 1990).
The preponderance of the evidence standard requires proof by “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). The preponderance of the evidence standard is less stringent than the
standard of clear and convincing evidence applicable to loss of a license or certification. Cisneros v. Sch. Bd. of Miami-Dade Cty., 990 So. 2d 1179 (Fla. 3d DCA 2008).
Whether Respondent committed the charged offenses is a question of ultimate fact to be determined by the trier-of-fact in the context of each alleged violation. Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985); McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995).
Sections 1012.33(1)(a) and (6)(a) provide, in pertinent part, that instructional staff may be suspended during the term of their employment contract only for “just cause.” §§ 1012.33(1)(a) and (6)(a), Fla. Stat. “Just cause” is defined in section 1012.33(1)(a) to include “misconduct in office.”
Section 1001.02(1), Florida Statutes, grants the State Board of Education authority to adopt rules pursuant to sections 120.536(1) and 120.54 to implement provisions of law conferring duties upon it.
Consistent with this rulemaking authority, the State Board of Education has defined “misconduct in office” in rule 6A-5.056(2), which provides:
(2) “Misconduct in Office” means one or more of the following:
A violation of the Code of Ethics of the Education Profession in Florida as adopted in Rule 6A-10.080, F.A.C.;
A violation of the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6A-10.081, F.A.C.;
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.
Rule 6A-10.080, titled “Code of Ethics of the Education Profession in Florida,” was repealed, effective March 23, 2016, and reenacted in
rule 6A-10.081(1)(a) through (c). Rule 6A-10.081(1)(a) through (c) provides:
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 democratic citizenship. Essential to the achievement of these standards are the freedom to learn and to teach and the guarantee of equal opportunity for all.
The educator’s primary professional concern will always be for the student and for the development of the student’s potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity.
Aware of the importance of maintaining the respect and confidence of one’s colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.
While rule 6A-5.056(2)(a) still provides that violation of the Code of Ethics, “as adopted in [r]ule 6A-10.080,” constitutes “misconduct,” it has been frequently noted that the precepts set forth in the “Code of Ethics” are “so general and so obviously aspirational as to be of little practical use in defining normative behavior.” Miami-Dade Cty. Sch. Bd. v. Zumeta,
Case No. 20-5179TTS (Fla. DOAH June 16, 2021; MDCSB July 21, 2021);
Miami-Dade Cty. Sch. Bd. v. Quarles, Case No. 20-5137TTS (Fla. DOAH June 23, 2021; MDCSB July 21, 2021); Broward Cty. Sch. Bd. v. Miller, Case No. 20-1335TTS (Fla. DOAH Nov. 10, 2020; BCSB Feb. 9, 2021); Broward
Cty. Sch. Bd. v. Beckham, Case No. 19-4589TTS (Fla. DOAH Mar. 9, 2020;
BCSB Apr. 30, 2020). School Board Policy 3210.01, titled “Code of Ethics,” mirrors the precepts set forth in rule 6A-10.081(1)(a) through (c).
Rule 6A-5.056(2)(b) incorporates by reference rule 6A-10.081, which is titled “Principles of Professional Conduct for the Education Profession in Florida.” Rule 6A-10.081(2)(a) provides, in pertinent part:
(a) 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.
School Board Policy 3210, Standards of Ethical Conduct, provides, in pertinent 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. An instructional staff member shall:
* * *
3. make 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;
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.
A. Staff members shall report immediately to a building administrator any accident, safety hazard, or other potentially harmful condition or situation s/he detects.
Turning to the present case, the School Board proved by a preponderance of the evidence that Respondent is guilty of misconduct in office in violation of rules 6A-5.056(2)(b) through (e) and 6A-10.081(2)(a)1. As detailed above, by pushing A.J. toward A.B. and retreating to her desk, Respondent failed to make reasonable effort to protect her students from conditions harmful to learning and engaged in conduct which disrupted the student’s learning environment and reduced Respondent’s ability to effectively perform her duties. Respondent also violated School Board Policy 3210, Standards of Ethical Conduct, section A.3., and School Board Policy 3213, Student Supervision and Welfare.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order upholding the suspension of Respondent’s employment as a teacher, without pay, for 15 days.
DONE AND ENTERED this 29th day of July, 2021, in Tallahassee, Leon County, Florida.
DARREN A. SCHWARTZ
Division of Administrative Hearings this 29th day of July, 2021.
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.
