STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 95-4676

)

EDWINA W. JAMES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted by video teleconference (at sites in Miami and Tallahassee, Florida) on September 24, 1996, before Stuart M. Lerner, a duly designated Hearing Officer 1/ of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: J. Michael Haygood, Esquire

Mack, Williams, Haygood and McLean, P.A. c/o The School Board of Dade County

1450 Northeast Second Avenue, Suite 562

Miami, Florida 33132

For Respondent: Leslie A. Meek, Esquire

2929 Southwest Third Avenue, Suite One Miami, Florida 33129

STATEMENT OF THE ISSUES

1. Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges?

   
   

2. If so, whether such conduct provides the School Board of Dade County, Florida, with proper or just cause to take disciplinary action against her?

   
   

3. If so, what specific disciplinary action should be taken?

PRELIMINARY STATEMENT

On May 10, 1995, the School Board of Dade County, Florida (School Board) suspended Respondent from her paraprofessional position and initiated a dismissal proceeding against her "for conduct unbecoming a School Board employee." By letter dated May 11, 1995, Respondent, through her counsel, requested a hearing before the Division of Administrative Hearings (Division) on the matter. On September 21, 1995, the School Board referred the matter to the Division for the assignment of a Hearing Officer to conduct the hearing Respondent had requested.

On or about October 18, 1995, the School Board served on Respondent its Notice of Specific Charges (Notice) against Respondent. The Notice alleged that, on or about September 20, 1994, while "employed by [the School Board] as a [one-on-one] Paraprofessional in the Occupational Training Center at Gulfstream Elementary School," Respondent "struck the [exceptional] student [to whom she was assigned] across the head with a hairbrush." According to the Notice, Respondent thereby "violated School Board Rule 6Gx13-4A-1.21(1) in that her actions constitute[d] conduct unbecoming a School Board employee."

As noted above, the final hearing in this case was held before the undersigned on September 24, 1996. 2/ Six witnesses testified at the final hearing: J.C., the exceptional student whom, according to the Notice, Respondent had allegedly struck; 3/ Ernestine Lanzas; Monica Stouffer; Brenda Sowers; Sergeant Bruce Beard; and Respondent. In addition to the testimony of these six witnesses, a total of three exhibits (Petitioner's Exhibits 1 through 3) were offered and received into evidence. Among these

exhibits was the deposition of Deborah (Orkin) Steinfeld, 4/ which was offered and received into evidence in lieu of her live testimony pursuant to Rule 1.330(a)(3)(E), Rules of Civil Procedure.

At the close of the evidentiary portion of the hearing on September 24, 1996, the parties were advised of their right to file proposed recommended orders and a deadline was established (21 days from the date of the Division's receipt of the transcript of the final hearing) for the filing of proposed recommended orders. The Division received the transcript of the final hearing in this case on October 21, 1996.

The School Board filed a proposed recommended order on November 15, 1996.

The School Board's proposed recommended order contained the full name of the exceptional student who was the alleged victim of Respondent's physical aggression. On November 18, 1996, the School Board filed a motion requesting that it be allowed to substitute a "corrected" proposed recommended order, in which the name of the alleged victim is not disclosed, for the proposed recommended order it originally filed on November 15, 1996. The School Board's request is hereby GRANTED. 5/ The undersigned has carefully considered the School Board's "corrected" proposed recommended order. To date, Respondent has not filed any post-hearing submittal.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

1. The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Dade County, Florida.

   
   

2. At all times material to the instant case, including September 20, 1994, Respondent was an employee of the School Board occupying a paraprofessional position.

   
   

3. Respondent's assignment on September 20, 1994, was to serve as a one- on-one paraprofessional for J.C., a student in Deborah Orkin's class of physically impaired students at Gulfstream Elementary School.

   
   

4. J.C. has cerebral palsy.

   
   

5. As a result, her motor skills are severely impaired.

6. J.C. is very intelligent and able to understand what she is told, but she is unable to speak. She communicates by computer, when one is available, and by sign language, which may at times be difficult to decipher because of her inability (due to her cerebral palsy) to fully control her hand movements.

   
   

7. On the morning of September 20, 1994, while in Ms. Orkin's classroom, Respondent began to brush J.C.'s hair with a plastic brush, notwithstanding that Ms. Orkin, who was Respondent's supervisor, had previously instructed Respondent not to do so.

   
   

8. J.C. resisted Respondent's efforts to brush her hair. She flailed her arms and screamed.

   
   

9. Respondent reacted in an inappropriate and unseemly manner by intentionally striking J.C. on the head with the back of the plastic brush approximately five times. In delivering these blows to J.C.'s head, Respondent used force which was not reasonably necessary to effectively and safely deal with the situation that confronted her.

   
   

10. The incident occurred in the presence of the other students in the classroom.

    
    

11. Monica Stouffer, a registered nurse, whose patient, L.N., was a classmate of J.C.'s, was in the classroom with L.N. at the time and observed the incident, as did Earnestine Lanzas, a paraprofessional at the school, who was outside the classroom, but able to see in (from her vantage point in the hallway) through a large window.

    
    

12. Brenda Sowers, L.N.'s one-on-one paraprofessional, heard, but did not see, Respondent strike J.C. with the brush.

    
    

13. Ms. Orkin was in the bathroom (in the classroom) with the door open at the time of the incident. She heard J.C. scream, but, like Sowers, did not see Respondent strike J.C. with the brush.

    
    

14. Ms. Lanzas reported what she had observed to Ms. Orkin.

    
    

15. Ms. Orkin informed the principal of the school about the incident.

    
    

16. An investigation of the incident was conducted by Sergeant Bruce Beard of the School Board's Division of School Police.

    
    

17. On December 5, 1994, Sergeant Beard issued a written report of the results of his investigation. The report contained the following "conclusion:"

    
    

    Based on the statements received from the victim and witnesses that Ms. James did hit [J.C.] with a hairbrush, the allegation of Battery is substantiated.

    
    

18. Subsequently, at the request of a union representative acting on Respondent's behalf, Sergeant Beard interviewed other potential witnesses concerning the incident.

    
    

19. On March 2, 1995, Sergeant Beard issued a supplement to his December 5, 1994, written report. The supplement contained the following "conclusion":

    Based on statements given by additional witnesses, that Ms. James did hit [J.C.] with a hairbrush, the original allegation of Battery is unchanged and continues to be substantiated.

    
    

20. At its May 10, 1995, meeting, the School Board suspended Respondent and initiated a dismissal proceeding against her "for conduct unbecoming a School Board employee."

    
    

    CONCLUSIONS OF LAW

    
    

21. The School Board may suspend or dismiss its employees for proper or just cause. See Section 230.23(5)(f), Fla. Stat. (Supp. 1996); Section 231.3605, Fla. Stat.; 6/ and 447.209, Fla. Stat.

    
    

22. Proper or just cause exists when an employee engages in conduct unbecoming a School Board employee that amounts to "misconduct in office." Cf. Section 231.36(6)(b), Fla. Stat. (Supp. 1996)("[a]ny member of the district administrative or supervisory staff, including any principal but excluding an employee specified in subsection (4), may be suspended or dismissed at any time during the term of the contract; however, the charges against him or her must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of any crime involving moral turpitude"). 7/

    
    

23. "Misconduct in office" is defined in subsection (3) of Rule 6B-4.009, Florida Administrative Code, 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.

    
    

24. Rule 6B-1.001, Florida Administrative Code, which is referenced in the definition of "misconduct in office" found in Rule 6B-4.009(3), Florida Administrative Code, provides as follows:

    
    

    1. The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, and the nature of democratic citizenship. Essential to

       the achievement of these standards are the freedom to learn and to teach and the guarantee of equal opportunity for all.

    2. The educator's primary professional concern will always be for the student and for the develop- ment of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment

       and integrity.

    3. Aware of the importance of maintaining the

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

       
       

25. Rule 6B-1.006, Florida Administrative Code, which is also referenced in the definition of "misconduct in office" found in Rule 6B-4.009(3), Florida Administrative Code, provides, in pertinent part, as follows:

    
    

    1. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida. . . .

       1. Obligation to the student requires that the individual:

          1. Shall make reasonable effort to protect the student from conditions harmful to

       the student's mental and/or physical health and/or safety.

       
       

26. While a School Board employee, under certain circumstances, may use physical force to restrain a disruptive student, if the employee uses excessive physical force which exposes the student to harm, the employee is guilty of violating Rule 6B-1.006, Florida Administrative Code. To determine whether the force used by the employee was excessive all of the circumstances surrounding the incident must be examined. Cf. Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 1408, 1415 (1977)(excessive force is force that is "not reasonably believed at the time to be necessary for the child's discipline or training;" "[a]ll of the circumstances are to be taken into account in determining whether punishment [of a student by a teacher] is reasonable in a particular case;" "[a]mong the most important considerations are the seriousness of the offense [committed by the child], the attitude and past behavior of the child, the nature and severity of the punishment, the age and strength of the child, and the availability of less severe but equally effective means of discipline");

    B.R. v. Department of Health and Rehabilitative Services, 558 So.2d 1027, 1029 (Fla. 2d DCA 1989)("Whether corporal punishment is excessive must be proved in each case by competent, substantial evidence, and all relevant issues presented must be considered without resort to arbitrary presumptions fixed by the passage of time"); Kama v. State, 507 So.2d 154, 158-59 (Fla. 1st DCA 1987)("[i]t is not possible to legislatively lay down any fixed parameters of 'reasonable discipline' of a child;" "[w]hether in any particular case the punishment inflicted was permissive or excessive must necessarily depend on the age, condition, and disposition of the child, as well as the attendant circumstances").

    
    

27. "Under Florida law, a school board's decision to terminate an employee is one affecting the employee's substantial interests; therefore, the employee is entitled to a formal hearing under section 120.57(1) if material issues of fact are in dispute." 8/ Sublett v. District School Board of Sumter County, 617 So.2d 374, 377 (Fla. 5th DCA 1993).

    
    

28. A School Board employee against whom a dismissal proceeding has been initiated must be given a Notice of Specific Charges prior to the Section 120.57(1) hearing. See Section 231.3605(2)(c), Fla. Stat. Although the notice "need not be set forth with the technical nicety or formal exactness required of pleadings in court," it should "specify the rule [or statute] the [School Board] alleges has been violated and the conduct which occasioned the violation of the

    rule [or statute so specified]." Jacker v. School Board of Dade County, 426 So.2d 1149, 1151 (Fla. 3d DCA 1983)(concurring opinion of Judge Jorgenson).

    
    

29. Any disciplinary action taken against the employee may be based only upon the conduct specifically alleged in the Notice of Specific Charges. See Kinney v. Department of State, 501 So.2d 129, 133 (Fla. 5th DCA 1987); Hunter

    v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984).

    
    

30. At the Section 120.57(1) hearing, the burden is on the School Board to prove these allegations contained in the Notice of Specific Charges. Inasmuch as it is a disciplinary proceeding that does not involve licensure, the School Board's proof need only meet the preponderance of the evidence standard. See Section 120.57(1)(h), Fla. Stat. (Supp. 1996)("[f]indings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute"); see also Allen v. School Board of Dade County, 571 So.2d 568, 569 (Fla. 3d DCA 1990)("[w]e . . . find that the hearing officer and the School Board correctly determined that the appropriate standard of proof in [School Board employee] dismissal proceedings was a preponderance of the evidence;" "[t]he instant case does not involve the loss of a license and, therefore, Allen's losses are adequately protected by the preponderance of the evidence standard"); Dileo v. School Board of Dade County,

    569 So.2d 883, 884 (Fla. 3d DCA 1990)("[w]e disagree that the required quantum of proof in a teacher dismissal case is clear and convincing evidence, and hold that the record contains competent and substantial evidence to support both charges by a preponderance of the evidence standard").

    
    

31. The Notice of Specific Charges that the School Board served on Respondent prior to the final hearing in the instant case alleged that, on or about September 20, 1994, while "employed by [the School Board] as a [one-on- one] Paraprofessional in the Occupational Training Center at Gulfstream Elementary School," Respondent "struck the [exceptional] student [to whom she was assigned, J.C.] across the head with a hairbrush" and that "[t]he[se] acts engaged in by the Respondent constitute sufficient grounds warranting her dismissal from employment" for "conduct unbecoming a School Board employee."

    
    

32. Notwithstanding Respondent's sworn denial of the charge against her, the evidence presented by the School Board clearly and convincingly 9/ establishes that Respondent engaged in the "conduct unbecoming a School Board employee" alleged in the Notice of Specific Charges. 10/ In doing so, Respondent breached her obligation to make a reasonable effort to protect J.C. from conditions harmful to J.C.'s well-being and safety. This breach was sufficiently serious to impair Respondent's effectiveness as a School Board paraprofessional employee. It therefore amounted to "misconduct in office," as that term is defined in Rule 6B-4.009(3), Florida Administrative Code. See Forehand v. School Board of Gulf County, 600 So.2d 1187, 1191 (Fla. 1st DCA 1992).

    
    

33. Accordingly, the School Board has proper or just cause to terminate Respondent's employment with the School Board.

    
    

34. It is the recommendation of the undersigned that the School Board exercise its authority to terminate Respondent for such proper or just cause, given the absence of mitigating circumstances sufficient to justify, in light of the seriousness of Respondent's misconduct, the imposition of less severe disciplinary action.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that a final order be entered sustaining Respondent's suspension and dismissing her as an employee of the School Board.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of November, 1996.

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 1996.

ENDNOTES

1/ Pursuant to Chapter 96-159, Laws of Florida, the title of the undersigned (and of all other Hearing Officers of the Division of Administrative Hearings) was changed to Administrative Law Judge, effective October 1, 1996.

2/ The hearing was initially scheduled to commence on December 19, 1995, but was continued on three occasions.

3/ J.C., who is unable to express herself through the spoken word because of her disability, testified through a (sign language) interpreter, Joe Krause.

4/ Deborah Steinfeld is her married name. At the time of the incident at issue in the instant case (which took place before her marriage), she was known as Deborah Orkin.

5/ The undersigned, however, declines to grant the other relief requested in the School Board's motion.

6/ Section 231.3605, Florida Statutes, which took effect July 1, 1994, provides that an "educational support employee," may be terminated "for the reasons stated in the collective bargaining agreement, or in school board rule in cases where a collective bargaining agreement does not exist." An "educational support employee," as that term is used in Section 231.3605, Florida Statutes, includes an "education paraprofessional." Although the record in the instant case (as defined in Section 120.57(1)(f), Florida Statutes (Supp. 1996)) contains neither a collective bargaining agreement nor a School Board rule governing the termination of "education paraprofessionals" employed by the School Board, in their proposed prehearing stipulations, the parties both indicated that the "disputed issue" to be decided in the instant case is whether

there exists "just cause for the Respondent's dismissal." It therefore appears that the parties are in agreement that the School Board may terminate Respondent if it has "just cause" to do so.

7/ In Rosario v. Burke, 605 So.2d 523, 524 n.1 (Fla. 2d DCA 1992), the Second District Court of Appeal explained as follows its holding that the provisions of Section 231.36(6)(b), Florida Statutes, were applicable to non-certified school board personnel:

We are not completely convinced that the legislature initially intended the narrow grounds for dismissal described in section 231.36(6)(b) to apply to nonprofessional supervisory staff, as compared to principals, assistant superintendents and other certified positions. Nevertheless, the statute was interpreted to include such public employees in 1981, after the enactment of section 447.201-.609, which applies generally to public employees. See Smith v. School Bd.

of Leon County, 405 So.2d 183 (Fla. 1st

DCA 1981). Section 231.36 was amended after the Smith decision without any disapproval of that decision. If the statute requires modification or clarification concerning

nonprofessional supervisory school personnel, that change should occur in the legislature.

Subsequent to the Second District's decision in Rosario, the 1994 Florida Legislature enacted Section 231.3605, Florida Statutes, which, as noted above, provides that an "educational support employee" (defined as "any person employed by a district school system who is so employed as a teacher aide, a teacher assistant, an education paraprofessional, a member of the transportation department, a member of the operations department, a member of the maintenance department, a member of food service, a secretary, or a clerical employee, or any other person who by virtue of his or her position of employment is not required to be certified by the Department of Education or school board pursuant to s. 231.1725") may be terminated "for reasons stated in the collective bargaining agreement, or in school board rule in cases where a collective bargaining does not exist." The statute further prescribes the procedure that must be followed "[i]n the event a superintendent seeks termination of an [educational support] employee." In view of the enactment of Section 231.3605, Florida Statutes, the provisions of Section 231.36(6)(b), Florida Statutes (Supp. 1996), can no longer be reasonably construed as being directly applicable to non-certified school board personnel. These provisions, however, may be looked to for guidance in determining what constitutes proper or just cause for the suspension or dismissal of such employees.

8/ "A county school board is a state agency falling within Chapter 120 for purposes of quasi-judicial administrative orders." Sublett v. District School Board of Sumter County, 617 So.2d 374, 377 (Fla. 5th DCA 1993).

9/ "'[C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.'" In re Davey, 645 So.2d 398, 404 (Fla. 1994), quoting, with

approval, from Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983). The School Board's evidentiary presentation in the instant case met this stringent test, even though the School Board was only required to prove Respondent's guilt by a mere preponderance of the evidence.

10/ In the opinion of the undersigned, Respondent's uncorroborated testimony that she did not hit J.C. on the head with the brush is simply not credible, given the overwhelming evidence to the contrary.

COPIES FURNISHED:

J. Michael Haygood, Esquire

Mack, Williams, Haygood and McLean, P.A. c/o The School Board of Dade County

1450 Northeast Second Avenue, Suite 562

Miami, Florida 33132

Leslie A. Meek, Esquire

2929 Southwest Third Avenue, Suite One Miami, Florida 33129

Alan T. Olkes Superintendent of Schools

The School Board of Dade County 1450 Northeast Second Avenue Miami, Florida 33132

Frank T. Brogan Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 95-004676

Orders for Case No: 95-004676