STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SCHOOL BOARD OF DADE COUNTY, ) FLORIDA, )
)
Petitioner, )
)
vs. ) CASE NO. 90-1808
)
TERESA BETHEL, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer from the Division of Administrative Hearings, on June 5-6, 1990, in Miami, Florida.
APPEARANCES
For Petitioner: Jaime Claudio Bovell, Esquire
75 Valencia Avenue
Coral Gables, Florida 33134
For Respondent: Patricia Graham Williams, Esquire
1055 Northwest 183rd Street Miami, Florida 33169
STATEMENT OF THE ISSUE
The issue presented in this cause is whether Respondent should be suspended from her employment for twenty days for conduct unbecoming a school board employee, misconduct in office, and gross insubordination.
PRELIMINARY STATEMENT
On March 7, 1990, the School Board of Dade County, Florida, suspended Respondent from her employment as a teacher for a period of 20 days. Respondent timely requested a formal hearing on the allegations forming the basis for that suspension, and this cause was transferred to the Division of Administrative Hearings. On May 7, 1990, Petitioner filed its Amended Notice of Specific Charges, and on May 31, 1990, Petitioner filed its Amendment to that Amended Notice of Specific Charges. Leave to file those amended pleadings was granted during the final hearing in this cause.
Petitioner presented the testimony of Patricia Perez- Benitoa, Norvin L. Griner, Essie Pace, Deborah Piha, Joe Carbia, and Joyce Annunziata.
Additionally, Petitioner's Exhibits numbered 1-5 were admitted in evidence, and Petitioner's request for official recognition of Section 231.09, Florida Statutes, was granted.
The Respondent testified on her own behalf and presented the testimony of Norvin L. Griner, Toni Roxanne Phillips, Claretha Carnage, Nakesha Carnage, Lissette Sosa, Torrey Jacobs, Portia Jacobs, Liola Carter, Charles R. Penticoff, and Krisan Lamberti. Additionally, Respondent's Exhibits numbered 1, 2, 4, 5, 8, and 9 were admitted in evidence.
Both parties submitted post-hearing proposed findings of fact. A ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.
FINDINGS OF FACT
Respondent is a veteran teacher of approximately 34 years. She has been employed as a teacher by the School Board of Dade County, Florida, for 28 years pursuant to a continuing contract. In 1984, she was voted "Teacher of the Year" at the school where she then taught.
In October, 1984, she was reassigned to teach at Coconut Grove Elementary School pursuant to a hardship transfer to facilitate her caring for her ill daughter. She continued to teach at Coconut Grove Elementary School through the time of the final hearing in this cause.
She is a dedicated and competent teacher and has consistently received satisfactory ratings on her annual evaluations. She tutors children without charge in her home after school hours. She loves children and loves teaching them. She has a reputation for utilizing effective disciplinary techniques.
Joe Carbia is the principal at Coconut Grove Elementary School and was the principal at the time that Respondent obtained her hardship transfer to that school.
Since her transfer, Respondent and Carbia have disagreed with each other a number of times. It is apparent that they do not respect each other and have not been supportive of each other since shortly after her transfer to Coconut Grove Elementary School.
Between October, 1984, and the 1988-89 school year, Respondent also had disagreements with other teachers and temporarily with one parent of a student. Each time someone complained, Carbia decided that Respondent was wrong. No competent evidence was offered by Petitioner as to what occurred on any of these occasions, and Carbia's testimony that he held conferences with Respondent and issued directives to her is not supported by documentary evidence. Rather, Respondent's acceptable evaluations each year, the lack of documentary evidence, and Petitioner's reliance on hearsay evidence indicate that none of the disagreements, whatever they were, were considered major.
During December of 1988, several holiday activities were conducted involving students from Coconut Grove Elementary School. Respondent requested permission from Carbia for her class to put on a holiday play, and permission was given to her. Carbia did not attend the play that was put on by Respondent's students, and none of the other teachers at the school came to see their performance.
By early February, 1989, Respondent had visited Carbia's supervisor and had requested him to write a letter of apology to her students for not attending their holiday play. Her students later wrote letters to several persons in the upper level of administration for the Dade County Public Schools, including the Superintendent, asking why no one had attended their play. In mid-February, Carbia visited Respondent's classroom, and one of the students asked him why he had not come to their play. He explained that he had another commitment that evening. Although Carbia concluded that Respondent had instigated her student's question and their letter writing, no evidence was presented to show that it was Respondent's idea and not the idea of her students. The overall evidence clearly shows that Respondent stood up for her students when she felt they had been treated unfairly. No one answered or acknowledged the letters from the children. No more letters were written after Respondent was ordered to stop them.
By the end of the 1988-89 school year, Respondent had voiced her complaints about Carbia's methods and her perception of his mistreatment of her and of black teachers and students at Coconut Grove Elementary School to several other teachers and to the P.T.A. President. She had also voiced her complaints about Carbia at a union meeting, a forum believed to be confidential. On July 3, 1989, Carbia forwarded a collection of letters from people reporting to him the things that Respondent was saying about him to the Office of Professional Standards of the Dade County Public Schools along with his request that that office direct Respondent to submit to a medical fitness determination. The letters, submitted to him in June, were from the counselor at the school, one parent, the P.T.A. president, and the other sixth- grade teacher. None of those persons testified at the final hearing in this cause, and those documents remain hearsay.
As a result of Carbia's request, Joyce Annunziata, supervisor in the Office of Professional Standards, conducted a conference for the record with Respondent on August 11, 1989, to address Respondent's fitness to return to classroom duties, interpersonal relations with site personnel and community members, and Respondent's future employment status with the Dade County Public Schools. In that conference, Respondent was advised that future incidents of unprofessional demeanor with staff or parents would be considered insubordination. Carbia's request that Respondent be directed to submit to a medical fitness determination was denied.
During the 1989-90 school year, Respondent taught the sixth grade. In October, 1989, Carbia assigned the responsibility for the school's United Way Campaign to teacher Deborah Piha, a fifth-grade teacher. The prior year Respondent had been in charge of the United Way Campaign and believed that the United Way Campaign was a sixth-grade project.
After Respondent learned that Piha would be in charge, she encountered Piha on her way to the cafeteria. Respondent complained to Piha that Carbia had taken the responsibility away from Respondent and her sixth- grade students and voiced her anger toward Carbia for doing so.
Although Piha understood that Respondent was not angry at her, Piha does not like "confrontations" and did not like the fact that Respondent "invaded her space." Piha told Carbia what Respondent had said about him. Carbia requested Piha to write a report about Respondent's conduct, and she did so.
Word that Piha had written a negative report regarding Respondent spread quickly. A few moments after Piha left Carbia's office, she encountered Respondent who already had heard about the letter. Piha told Respondent that she was very sorry that she had written the letter and had not meant to hurt Respondent. Piha was clearly upset and told Respondent and the teacher who was with Respondent, "It's my job." Piha asked Respondent for help with the United Way campaign, and Respondent agreed. She offered Piha her materials from the prior year and offered to assist her in any way that she could.
Although Carbia asked Piha subsequently to write a second letter, Piha declined. She also later declined Respondent's offers of assistance on the United Way campaign and would not use the materials that Respondent gave her even though she had asked Respondent to assist her.
Patricia Perez-Benitoa is a beginning teacher. The 1989-90 school year was her second year of teaching. As an art teacher, she was shared by Coconut Grove Elementary School and another school. She came to Respondent's class on Tuesdays.
On Tuesday, November 7, 1989, she told Respondent that she was experiencing difficulty in maintaining discipline. Respondent was aware of that fact since Respondent's students had been complaining to Respondent about Perez- Benitoa.
Respondent's students did not like Perez-Benitoa since she called them stupid, immature, dumb, foolish, and silly. Although she followed the school's assertive discipline program, they believed she was unfair in administering discipline and clearly favored certain students.
On November 7 when Perez-Benitoa told Respondent she was having difficulty, Respondent agreed to help her. They both stood at the front of the class, and Respondent explained to the students that she was supporting Perez- Benitoa 100%. Perez- Benitoa, with Respondent's support, explained to the class that student misbehavior would be dealt with in a consistent manner. Specifically, she made an "agreement" with Respondent and with the class that if a student misbehaved, then the student would suffer the consequences. Further, all students would be treated equally when they were punished.
Torrey and Joseph were students in Respondent's class. After Torrey's mother complained to Perez-Benitoa about calling her son "stupid" during art class, Perez-Benitoa told Torrey during class that he was stupid and so was his mother. During the 1989-90 school year, Torrey was sent to the office by Perez- Benitoa and suspended from school six different times, although he was not sent to the office to be suspended by any other teacher during that school year.
On Tuesday, November 14, 1989, Perez-Benitoa came to Respondent's classroom to teach art, and Respondent left the classroom since that would be her planning period. When she returned to the classroom at the end of the art class, she saw that Perez-Benitoa had put Torrey's name and Joseph's name on the board. Torrey was not in the classroom, but Joseph was.
Perez-Benitoa told Respondent that she had sent Torrey to the office, and Respondent asked her why she had not sent Joseph to the office since both names were on the board and both names had the same number next to them representing the level of offenses.
The two teachers conferred with each other quietly in the front of the classroom. Perez-Benitoa explained that she had sent Torrey to the office for using profanity in class.
Respondent asked Perez-Benitoa why she had not sent Joseph to the office since his name was also on the board. Respondent reminded Perez-Benitoa that they had made an agreement witch the class that all students would be treated equally; she also told her that sending one student to the office and not the other was unfair.
Respondent also told Perez-Benitoa that she had personally had problems with Joseph using profanity in the class and told Perez-Benitoa that Joseph liked to use the "F-ing" and the "B-ing" words.
The students did not hear Respondent's conversation with Perez-Benitoa and did not hear Respondent's description of the profanity used by Joseph on previous occasions. However, a few of the students in the very front of the room only heard Respondent tell Perez-Benitoa it was not fair sending Torrey to the office, the same thing the students were telling Perez- Benitoa. The impression of the students was that Respondent was speaking nicely to Perez- Benitoa.
As the two teachers conferred, the students told Respondent that Torrey had not done anything wrong to justify being sent to the office to be suspended. They told her that Joseph had used the word "ass," that Perez- Benitoa mistakenly thought Torrey had used the word, and that Joseph had told Perez-Benitoa that he had used the prohibited word and not Torrey. Joseph also told Respondent that he had used the profanity and that he had told Perez- Benitoa that he did it and not Torrey.
The students remained unaware of the content of the conversation between Respondent and Perez-Benitoa. When Perez-Benitoa left the classroom, she took Joseph with her.
Despite learning that Torrey had not used profanity in the classroom, Perez-Benitoa wrote a Student Case Management Referral Form regarding Torrey which resulted in Torrey being suspended from school. She did not write a Student Case Management Referral form regarding Joseph. She never told the administration that she had made a mistake regarding Torrey's misbehavior or Joseph's.
When Perez-Benitoa went to the office, she told Carbia that Respondent had confronted her and scolded her in front of the class. She also told Carbia that Respondent had used profanity in front of her students. Carbia told her to write a letter regarding Respondent's unprofessional behavior. Perez- Benitoa did so, even though the statements she had made to Carbia were false.
At the formal hearing in this cause, Perez-Benitoa admitted that the students did not hear Respondent use profanity, but that they "could have." She admitted that the students were not within hearing range and that there was no reason for the children to think there was any conflict between her and Respondent. She also explained that she was shocked that another teacher would share with her an experience that she had had with a student since other teachers' experiences were simply of no concern to her. She also admitted she has never heard Respondent use profanity other than when Respondent told her of Joseph's propensity for profanity.
Carbia did not ask Respondent whether she had scolded Perez-Benitoa or whether she had used profanity in the classroom. He simply directed Essie Pace, the intern principal, to schedule a conference for the record with Respondent.
No investigation was done regarding Perez-Benitoa's allegations between November 14 and November 19, the day before the conference for the record. At the conference for the record on November 20, 1989, Pace told Respondent that Respondent had been directed in a July, 1989, conference for the record not to approach another teacher in a negative or derogatory way and not to make derogatory statements to employees or students, and that Respondent had violated those directives. At the final hearing, no evidence was offered as to any July conference for the record.
Either on November 20 or on November 21, 1989, in response to their questions, Respondent told her students that Perez-Benitoa had told the principal that Respondent used profanity to get her in trouble but that Respondent had not done so.
Perez-Benitoa came to Respondent's classroom on November 21 to teach art. Respondent left the classroom when she arrived. Respondent's students were angry at Perez-Benitoa for lying to the principal about their teacher. They got out of their seats, walked around the classroom, refused to listen to her and were defiant.
Perez-Benitoa contacted the office to ask someone to come and get her class under control for her. Principal Carbia was out of town, and intern principal Pace was not in the office at the moment. Perez-Benitoa took no additional steps to obtain assistance to bring her classroom under control.
She simply sat down and allowed the disorder and disruption to continue, while she cried.
The students' open defiance of her upset Perez-Benitoa. The students even told her that they were angry with her for lying about their teacher. When Respondent returned to her classroom, Perez-Benitoa left.
She went directly to the principal's office. By the time she arrived there she was in hysterics and totally out of control. Pace had to enlist the help of another teacher to sit with Perez-Benitoa to try to calm her down, and Perez-Benitoa went home because she was unable to carry out her teaching duties for the remainder of the day due to her lack of control.
Pace did not ask Respondent what had happened. She accepted Perez- Benitoa's accusations that Respondent had instigated her children to misbehave.
Perez-Benitoa's statements to Pace that the children were throwing paper and erasers at her were not supported by any of the students although the students did admit later to Pace, subsequently to the School Board's investigator, and at the final hearing in this cause that they refused to listen to Perez-Benitoa and were walking around the classroom refusing to remain in their seats. Further, Perez-Benitoa's statements that she heard one student say to another, "Mrs. Bethel will be proud of us" have not been supported by any of the students during Pace's investigation,
the School Board investigation, or during the final hearing in this cause. Rather, the students take the position that Respondent would never approve of them misbehaving.
After speaking to Perez-Benitoa on November 21 and after calling her own supervisors, Pace went to Respondent's class and removed her from her classroom. When Pace went to Respondent's classroom, the children were not misbehaving.
After Pace removed Respondent from her classroom, she interviewed several of the students one at a time. The students told her that Respondent does not use profanity, that Perez-Benitoa calls them names, that they were angry with Perez- Benitoa for lying to the principal regarding Respondent, and that Respondent did not instigate their disruptive and defiant behavior. Pace never asked the students why Respondent had told them about Perez-Benitoa accusing her of using profanity in the classroom.
On February 6, 1990, a conference for the record was conducted with Respondent by the Office of Professional Standards to address the investigative report concerning improper conduct, Respondent's insubordination by not complying with a site directive, her lack of professional responsibility in dealing with staff and students, and her future employment status with the Dade County Public Schools.
On March 7, 1990, the School Board of Dade County, Florida, suspended Respondent from her employment for twenty work days.
Respondent enjoys a great deal of support from the community, from the parents of her students, and from her students. She is outspoken, which appears to make some people feel uncomfortable.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.
Section 231.36(4)(c), Florida Statutes, provides that a member of the instructional staff may be suspended so long as the charges against that teacher are based on, inter alia, misconduct in office or gross insubordination. Rule 6B-4.009, Florida Administrative Code, contains the definitions for the terms "misconduct in office" and "gross insubordination," as follows:
Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B-1.006, F.A.C., which is so serious as to impair the individual's effectiveness in the school system.
* * *
Gross insubordination or willful neglect of duties is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in
nature, and given by and with proper authority.
The Amended Notice of specific Charges alleges that Respondent violated Section (3) of Rule 6B-1.001, Florida Administrative Code, Code of Ethics of the Education Profession in Florida. That section provides as follows:
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.
The Amended Notice of Specific Charges further alleges that Respondent violated the following sections of Rule 6B-1.006, the Principles of Professional Conduct for the Education Profession in Florida:
Obligation to the student requires that the individual:
Shall make reasonable effort to protect the student from conditions harmful to learning or to health or safety.
(h) Shall not exploit a professional relationship with a student for personal gain or advantage.
Obligation to the public requires that the individual:
(c) Shall not use institutional privileges for personal gain or advantage.
Essentially, the Amended Notice of Specific Charges and the Amendment thereto allege that on November 14, 1989, Respondent engaged in unprofessional behavior, including the use of profanity, that on November 20 Respondent told her class of the complaint lodged against her, that thereafter the children misbehaved with the teacher who had lodged the complaint against Respondent, and that Respondent had been previously directed to cease engaging in unprofessional conduct. The Amended Notice of Specific Charges alleges that Respondent has violated the above- quoted statutes and rules by committing misconduct in office and gross insubordination. The Amendment to the Amended Notice of Specific Charges alleges that Respondent has also violated two School Board rules, thereby committing conduct unbecoming a School Board employee and misconduct in office. Petitioner has failed in its burden of proof in this proceeding.
Regarding the incident of November 14, 1989, Respondent did not engage in unprofessional conduct regarding her conversation with Perez- Benitoa. Perez-Benitoa admitted at the final hearing that there was no reason for the children to have believed there was any conflict between her and Respondent as a result of the conversation that Respondent and she were having quietly with each other. The students also testified that they believed Respondent was talking "nicely" to Perez-Benitoa and that they could not hear what was being said. Respondent disagreed with Perez-Benitoa treating the children in the classroom unfairly, and it is also clear that sending a student to the office to be suspended for something someone else did is certainly unfair treatment. Petitioner's expert admitted that it is
permissible to have disagreements with other teachers and to even tell the other teacher about the disagreement.
Similarly, Perez-Benitoa's allegation that Respondent used profanity in the classroom on November 14 is simply false. Although Respondent did share with her an experience involving their student by telling her quietly that the student had a propensity for using the "F-ing" and the "B-ing" words, no one heard that information except Perez-Benitoa. Although it is not acceptable conduct for a teacher to use profanity in front of the students, implicit within that standard of conduct is the condition that such profanity be capable of being heard. Contrary to Petitioner's assertion, it is not
proper to take disciplinary action against an employee for something that "could" have happened.
Regarding Respondent telling her students on November 20 or November 21, prior to the art class being conducted on November 21, that Perez-Benitoa had told the principal that Respondent had used profanity in the classroom and that Respondent had not done so, Petitioner's proof falls short of that level required to discipline Respondent. Interim Principal Pace testified that she did not question the students until after the incident of November 21. When she did, she did not ask them why Respondent had told them that Perez-Benitoa had falsely accused her of using profanity. Respondent testified that she told the students that Perez-Benitoa accused her of using profanity in response to three students telling her that Pace had asked them on the 20th whether Respondent used profanity in the classroom, and the students asked Respondent why she would have asked them about that. Several students also testified that the students asked Respondent why they had been questioned, and she responded by telling them. The evidence indicates that on November
20 two of the students who allegedly asked Respondent why they had been questioned had taken a letter to Pace from the mother of one of them complaining about Perez-Benitoa calling the students stupid and dumb. The testimony regarding whether Pace asked several students if Respondent used profanity
in the classroom is in conflict. However, it is reasonable to assume that Pace, who was about to conduct a conference with Respondent for using profanity as reported by the art teacher would have asked the students who were there bringing her a complaint about the art teacher, whether Respondent used profanity. It is also reasonable to believe that those students, as supported by the testimony of other students, did ask Respondent in front of the class why they had been asked if she used profanity in the classroom. Giving the students a brief, honest answer, rather than lying to them and rebuffing them, does meet the requirements of Rule 6B-1.001(3), Florida Administrative Code, which requires teachers to comport themselves with the highest degree of ethical conduct.
The facts of this case do not support Petitioner's position that Respondent incited her students to misbehave in art class. Although the students were angered by Perez-Benitoa's false accusation, Perez-Benitoa bears some responsibility for the students misbehaving. The students had been misbehaving for her as a result of her poor relationship with them by humiliating them by calling them names in class. The students also knew that she would not treat them fairly since she had not in the past and continued to show partiality even after making an agreement with them that she would treat the students equally. Even after finding out by being told by Joseph on November 14 that he had cursed and not Torrey, she still allowed Torrey to be suspended from school by not correcting her mistake and advising the administration that she had made an error. Although she justifies her treatment of Torrey by explaining that she took Joseph down to the office at the end of the class, no administrator was aware that Joseph had been
brought to the office and she failed to write a Student Case Management Referral
Form regarding his behavior although she wrote one regarding Torrey's behavior. The classmates of Torrey and Joseph were clearly upset with Perez-Benitoa as a result of Perez-Benitoa's conduct.
A substantial amount of the evidence relied upon by the Petitioner in this case is hearsay. The non-hearsay incidents involved the United Way campaign and the art teacher. The testimony at final hearing of teacher Piha, together with the testimony of teacher Griner who was present during much of the conversation between Piha and Respondent, does not support the complaint made by Piha to the administration that Respondent acted unprofessionally. Rather, the testimony supports the fact that Piha does not like disagreement. Disciplinary action against Respondent based upon Piha's sensibilities is not appropriate. Any verbal directive by Carbia to Respondent to not engage in unprofessional behavior as a result of the Piha incident, although a reasonable directive, was not reasonable under the circumstances.
Similarly, any directive to Respondent to refrain from engaging in unprofessional behavior as a result of Perez-Benitoa's false accusations of November 14, although a reasonable directive, would not have been reasonable under the circumstances. On that day, Respondent engaged in no unprofessional behavior by quietly discussing a common problem with another teacher. Further, the fact that Respondent quietly told another teacher that a student used profanity is not the same as Respondent using profanity in the classroom, and Petitioner's position that the students "could" have heard is not supported by the testimony of any witness, including Perez- Benitoa, who testified that the students were not within hearing range.
Petitioner has failed to prove that Respondent violated the Principles of Professional Conduct for the Education Profession in Florida by failing to protect students from conditions harmful to learning, or to health or safety, by exploiting a professional relationship for personal gain or advantage, or by using institutional privileges for personal gain or advantage. The only situation where conditions harmful to the health or safety of the students and to their learning occurred involved the situation on November 21 where the students became disruptive and defiant.
Respondent was not there. It was Perez-Benitoa who failed to take steps to stop the disruption and unruly conduct and who merely sat down at the desk and cried while allowing it to continue. As soon as Respondent returned to the classroom, the misbehavior stopped and did not occur again. Although Petitioner alleges that Respondent used a professional relationship and institutional privileges for personal gain or advantage, there is no proof of any personal gain or advantage either sought or obtained by Respondent based on any of the incidents involved in this cause. Nor has there been any proof as to what institutional privileges are allegedly involved in this matter. Although Petitioner alleges that Respondent used the children to get even with Perez-Benitoa, Petitioner has failed to prove that allegation. Having failed to prove that Respondent is guilty of misconduct in office as defined in Rule 6B-4.009, Florida Administrative Code, Petitioner has, a fortiori, failed to prove that her misconduct is so serious as to have impaired her effectiveness in the school system.
Most of the direct orders that Respondent is alleged to have violated, thereby committing gross insubordination, were verbal and vague. For example, Carbia testified that he had instructed Respondent on numerous occasions to not involve children in adult affairs. What is an adult affair to Carbia is not necessarily an adult affair to others. Students asking, verbally and in writing, why people had not attended their play is not an adult affair.
Respondent questioning the unfair treatment of her students is not an adult affair. Carbia also testified that Respondent had inappropriately questioned her student being disqualified in a spelling bee several years ago. A student being disqualified from a spelling bee in school is not an adult affair.
Although a directive to not involve students in adult affairs may be a reasonable directive, Petitioner has not proven such directives to be reasonable in this case. Likewise, directives as testified to by Carbia that Respondent should "refrain from engaging in this type of conduct" remain vague and cannot form the basis for a finding of gross insubordination in this cause. Although Respondent was given a directive on the district level on August 11, 1989, to refrain from engaging in unprofessional conduct, Petitioner failed to prove that she engaged in unprofessional conduct on November 14 or on November 21, the only two incidents alleged in this cause. Accordingly, she cannot be found guilty of gross insubordination for violating prior directives.
The Amendment to Petitioner's Amended Notice of Specific Charges adds the allegation that Respondent violated School Board Rules 6Gx13-4A-1.21 and 6Gx13-4C-1.01 regarding conduct unbecoming a School Board employee and misconduct in office. A copy of the first School Board rule was admitted in evidence. However, a copy of the second School Board rule was not offered, after `the testimony of Petitioner's expert witness that the second cited rule applies to different kinds of situations. Accordingly, there is no basis for a finding or a conclusion that Respondent violated School Board Rule 6Gx13-4C- 1.01 which relates to misconduct in office.
As to School Board Rule 6Gx13-4A-1.21, which relates to conduct unbecoming a School Board employee, that rule requires employees to conduct themselves in a manner that will reflect credit upon themselves and the school system and to refrain from unseemly conduct or the use of abusive and/or profane language. Since Petitioner has failed to prove that Respondent engaged in such conduct, then Petitioner has also failed to prove that Respondent violated that rule.
Further, the violation of a School Board rule is not one of the grounds contained in Section 231.36(4)(c), Florida Statutes, which sets forth those activities for which teachers with continuing contracts can be suspended or dismissed from their employment. Although Petitioner did request official recognition of Section 231.09, Florida Statutes, during the final hearing in this cause and although official recognition was granted, neither the Amended Notice of Specific Charges nor the Amendment thereto charges Respondent with having violated Section 231.09.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty of
the allegations contained in the Amended Notice of Specific Charges and in the Amendment to the Amended Notice of Specific Charges, dismissing the charges filed against her, reversing the determination that Respondent be suspended for twenty days, and awarding to Respondent back pay for those twenty days for which she has already served the suspension.
DONE AND ORDERED in Tallahassee, Leon County, Florida, this 10th day of October, 1990.
LINDA M. RIGOT
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 1990.
APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-1800
Petitioner's proposed findings of fact numbered 1
and 17-19 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, conclusions of law, or argument of counsel.
Petitioner's proposed findings of fact numbered 2, 9 and 10 have been adopted either verbatim or in substance in this Recommended Order.
Petitioner's proposed findings of fact numbered 3-5, 7, and 11-16 have been rejected as not being supported by competent evidence in this cause.
Petitioner's proposed findings of fact numbered 6
and 8 have been rejected as being unnecessary for determination of the issues in this cause.
Respondent's first, second, third, fifth, and eighth unnumbered paragraphs have been adopted either verbatim or in substance in this Recommended Order.
Respondent's fourth, sixth, and seventh unnumbered paragraphs have been rejected as not being supported by the evidence in this cause.
Respondent's ninth unnumbered paragraph has been rejected as not constituting a finding of fact but rather as constituting argument of counsel.
COPIES FURNISHED:
Patricia Graham Williams, Esquire 1055 Northwest 183rd Street Miami, Florida 33169
Jaime Claudio Bovell, Esquire
75 Valencia Avenue
Coral Gables, Florida 33134
Paul W. Bell, Superintendent The School Board of Dade County
Board Administration Building, Suite 301 1450 Northeast 2nd Avenue
Miami, Florida 33132
Dr. Patrick D. Gray
Executive Assistant Superintendent Office of Professional Standards Dade County Public Schools
1444 Biscayne Boulevard
Miami, Florida 33132
Mrs. Madelyn P. Schere Assistant School Board Attorney
The School Board of Dade County, Florida Board Administration Building
1450 Northeast Second Avenue Miami, Florida 33132
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO 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 | Proceedings |
|---|---|
| Oct. 10, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 24, 1990 | Agency Final Order | |
| Oct. 10, 1990 | Recommended Order | Failure of proof that teacher guilty of gross insubordination or misconduct in office. 20 day suspension set aside, and back pay awarded |
PALM BEACH COUNTY SCHOOL BOARD vs LONTAY FINNEY, 90-001808 (1990)
BROWARD COUNTY SCHOOL BOARD vs SANDRA NUNEZ, 90-001808 (1990)
GADSDEN COUNTY SCHOOL BOARD vs CHARLIE C. DAVIS, 90-001808 (1990)
MANATEE COUNTY SCHOOL BOARD vs ROBERT GAGNON, 90-001808 (1990)
TOM GALLAGHER, AS COMMISSIONER OF EDUCATION vs ARMANDO M. CHAVERO, 90-001808 (1990)
