STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TOM GALLAGHER, as )

Commissioner of Education, )

)

Petitioner, )

)

vs. ) Case No. 97-5828

)

RICHARD V. POWELL, )

)

Respondent. )

) THE SCHOOL BOARD OF ) MIAMI-DADE COUNTY, FLORIDA, )

)

Petitioner, )

)

vs. ) Case No. 98-2387

)

RICHARD V. POWELL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on March 22 through 24, 1999, in Miami, Florida, before Patricia Hart Malono, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jana Gold Taylor, Esquire Commissioner of Whitelock & Associates, P.A. Education 316 Northeast Fourth Street

Fort Lauderdale, Florida 32301-1154

For Petitioner: Luis M. Garcia, Esquire School Board of Attorney's Office

Miami-Dade School Board of Miami-Dade County, Florida County, Florida 1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Roy J. Barquet, Esquire

Alison E. Bethel,, Esquire Steel, Hector & Davis LLP

200 South Biscayne Boulevard, Suite 4000 Miami, Florida 33131

STATEMENT OF THE ISSUES

In DOAH Case No. 97-5828, the issue is whether the Respondent committed the violations alleged in the Amended Administrative Complaint dated March 24, 1998, and, if so, the penalty which should be imposed. In DOAH Case No. 98-2387, the issue is whether the Respondent committed the violations alleged in the Notice of Specific Charges dated July 30, 1998, and, if so, whether he should be dismissed from employment with the Miami-Dade County School Board.

PRELIMINARY STATEMENT

DOAH CASE NO. 97-5828

In an Administrative Complaint dated January 21, 1997, Frank R. Brogan, then-Commissioner of Education for the State of Florida ("Commissioner"), charged Richard V. Powell with violating Section 231.28(1)(c), Florida Statutes, by exhibiting

gross immorality or engaging in an act involving moral turpitude. This charge was based on allegations that Mr. Powell had struck his fourteen-year-old son; that he had been arrested and charged with child abuse; and that adjudication had been withheld, with Mr. Powell being sentenced to six month's probation and required to complete a parenting course. Mr. Powell elected to engage in settlement negotiations with the proviso that, if no settlement

could be reached within forty-five days, an informal hearing would be conducted before the Education Practices Commission of the Department of Education. Settlement was not reached, and the case was scheduled for an informal hearing. Prior to the hearing, the Respondent requested a formal hearing, and the Commissioner transmitted the matter to the Division of Administrative Hearings for assignment of an administrative law judge. The case was assigned DOAH Case No. 97-5828, and the final hearing was scheduled for March 24, 1998.

On March 17, 1998, the Commissioner filed a Motion to Amend Administrative Complaint and Motion to Continue. By order dated March 20, 1998, the hearing was continued but ruling was withheld on the request for leave to amend the Administrative Complaint pending the Commissioner's filing the proposed Amended Administrative Complaint. On March 25, 1998, this document was filed, and the Motion to Amend Administrative Complaint was granted in an order dated April 9, 1998. The amended complaint, which was dated March 24, 1998, was substituted for the original complaint.

In the Amended Administrative Complaint, the Commissioner alleged in paragraph 4 that Mr. Powell had struck his fourteen- year-old son in November 1995; that he had been arrested and charged with child abuse; and that adjudication had been withheld, with Mr. Powell being sentenced to six month's probation and required to complete a parenting course. In

addition, the Commissioner alleged in paragraph 5 that, in November 1997, Mr. Powell struck a student at John F. Kennedy Middle School with a cane, had injured the student, and had been charged with the criminal offense of battery. On the basis of these allegations, the Commissioner charged Mr. Powell with eleven statutory and rule violations, as follows:

1. In Count 1, based on the allegations in paragraph 4 1/ of the Amended Administrative Complaint, Mr. Powell was charged with exhibiting gross immorality or engaging in an act involving moral turpitude, a violation of Section 231.28(1)(c), Florida Statutes;

2. In Count 2, based on the allegations in paragraph 5 of the Amended Administrative Complaint, Mr. Powell was charged with exhibiting gross immorality or engaging in an act involving moral turpitude, a violation of Section 231.28(1)(c), Florida Statutes;

3. In Count 3, based on the allegations in paragraph 5 of the Amended Administrative Complaint, Mr. Powell was charged with engaging in personal conduct which seriously reduced his effectiveness as an employee of the school board, a violation of Section 231.28(1)(f), Florida Statutes;

4. In Count 4, based on the allegations in paragraph 5 of the Amended Administrative Complaint, Mr. Powell was charged with failing to adhere to the Principles of Professional Conduct for the Education Profession contained in rules of the Department of Education, a violation of Section 231.28(1)(i), Florida Statutes;

5. In Count 5, based on the allegations in paragraph 5 of the Amended Administrative Complaint, Mr. Powell was charged with failing to make reasonable efforts to protect a student from conditions harmful to the student's mental and physical health and safety, a violation of Rule 6B-1.006(3)(a), Florida Administrative Code;

6. In Count 6, based on the allegations in paragraph 5 of the Amended Administrative Complaint, Mr. Powell was charged with intentionally exposing a student to unnecessary embarrassment or disparagement, a violation of Rule 6B-1.006(3)(e), Florida Administrative Code;

7. In Count 7, based on the allegations in paragraph 5 of the Amended Administrative Complaint, Mr. Powell was charged with intentionally violating a student's legal rights, a violation of Rule 6B-1.006(3)(f), Florida Administrative Code;

8. In Count 8, based on the allegations in paragraph 5 of the Amended Administrative Complaint, Mr. Powell was charged with failing to exercise his best professional judgment, a violation of Rule 6B-1.001, Florida Administrative Code;

9. In Count 9, based on the allegations in paragraphs 4 and

   
   

   5 of the Amended Administrative Complaint, Mr. Powell was charged with failing to achieve and sustain the highest degree of ethical conduct, a violation of Rule 6B-1.001, Florida Administrative Code;

10. In Count 10, based on the allegations in paragraphs 4 and 5 of the Amended Administrative Complaint, Mr. Powell was charged with engaging in conduct that is inconsistent with the standards of public conscience and good morals, a violation of Rule 6B-4.009(2), Florida Administrative Code; and

11. In Count 11, based on the allegations in paragraphs 4 and 5 of the Amended Administrative Complaint, Mr. Powell was charged with engaging in misconduct which was so serious it impaired his effectiveness in the school system, a violation of Rule 6B-4.009(3), Florida Administrative Code.

DOAH CASE NO. 98-2387

In a letter dated May 14, 1998, the School Board of Miami- Dade County, Florida ("School Board"), notified Richard V. Powell that, for just cause including misconduct in office and willful neglect of duty, it had suspended him and taken action to initiate proceedings to dismiss him from employment with the School Board. In response, Mr. Powell requested a formal hearing, and the School Board transmitted the matter to the Division of Administrative Hearings for assignment of an administrative law judge. The case was assigned DOAH Case No.

98-2387 and assigned to Administrative Law Judge Errol H. Powell. The final hearing was scheduled for December 1 and 2, 1998.

In the five-count Notice of Specific Charges dated July 30, 1998, the School Board charged Mr. Powell with misconduct in office, gross insubordination and willful neglect of duty,

immorality, conduct unbecoming a School Board employee, and violations of various School Board rules, which it alleged constituted just cause to dismiss Mr. Powell pursuant to Section 231.36(1)(a) and (6)(a), Florida Statutes, and Article

XXI of the United Teachers of Dade labor contract with the Miami- Dade County public school system. The School Board specifically alleged violations of Department of Education Rules 6B-1.001(2) and (3); 6B-1.006(3)(a) and (e); and 6B-4.009(2),(3), and (4),

Florida Administrative Code, and of School Board Rules 6Gx13-4- 1.09; 6Gx13-4A-1.21; 6Gx13-5D-1.07; and 6Gx13-4-1.08.

The charges in the Notice of Specific Charges were based on the following allegations of material fact:

1. Mr. Powell had been involved in numerous incidents in which he exhibited violent behavior and had been arrested and charged for several of these incidents (paragraph 7);

2. Mr. Powell had been arrested in 1990 for disorderly conduct but never prosecuted (paragraph 8);

3. Mr. Powell had been arrested in 1991 for simple battery and later acquitted of this charge (paragraph 9);

4. Mr. Powell had been arrested in 1991 during a routine traffic stop because of an outstanding bench warrant (paragraph 10);

5. Mr. Powell had been arrested in 1995 for child abuse involving his son, found guilty of child abuse but with

   adjudication withheld, sentenced to six months' probation, and required to attend a parenting course (paragraphs 11 and 12);

6. Mr. Powell attended a conference-for-the-record in November 1996, held for the purpose of discussing the disposition of the child abuse charges, during which Mr. Powell was directed to comply with the Code of Ethics, School Board policies, and school site rules dealing with appropriate teacher conduct and student-teacher relations (paragraph 13); and

7. Mr. Powell hit a student on the arm with a cane in November 1997 and was charged with criminal battery (paragraph 15).

   On November 6, 1998, the School Board filed a Motion to Consolidate DOAH Case No. 97-5828 and DOAH Case No. 98-2387. Mr. Powell filed a response in opposition to this motion on November 17, 1998, and the motion and response were forwarded to the undersigned for a ruling. In an order entered November 25,

   1998, the Petitioner's Motion to Consolidate was denied. Also on November 17, 1998, Mr. Powell filed a motion in DOAH Case No. 98- 2387 to strike certain allegations in the School Board's Notice of Specific Charges, and the School Board filed a response in opposition to this motion on December 2, 1998. An order was entered by Judge Errol H. Powell on December 9, 1998, denying the motion. Finally, on February 1, 1999, the School Board filed its Unopposed Motion to Consolidate. In the motion, the School Board stated that it and Mr. Powell had stipulated that the School

   Board would not raise or address at the final hearing the allegations contained in that portion of paragraph 7 following the semi-colon and in paragraphs 8 through 10. Subject to this understanding, the cases were consolidated in an order entered February 3, 1999, and the final hearing was scheduled for

   March 22 through 24, 1999.

   
   

   At the final hearing, the School Board withdrew the allegations contained in that portion of paragraph 7 following the semi-colon and in paragraphs 8 through 10 of the Notice of Specific Charges. The Commissioner and the School Board jointly presented the testimony of the following witnesses: Diane Kedzierski, a resident of Miramar, Florida; Joan Day, a resident of Miramar, Florida; Officer Luis A. Sorangelo, an employee of the Pembroke Pines Police Department; Sandra M. Clarke, a guidance counselor at John F. Kennedy Middle School; William Kenny McCard, an assistant principal at John F. Kennedy Middle School; Andrew D. Snoke, III, a school resource officer assigned to John F. Kennedy Middle School; Sergeant Daniel Forman, an employee of the Miami-Dade County Public School Police Department; James E. Monroe, formerly an Executive Director in the School Board's Office of Professional Standards; student witnesses 2/ M. M., N. S., K. G., and B. B.; and rebuttal witness A. M.

   The Commissioner offered Department of Education Exhibits 1 through 14 and 16 through 38, 3/ which were received into

   evidence. 4/ Department of Education Exhibit 1 was offered into evidence as a public record; although it was received into evidence pursuant to Section 120.57(1)(c), Florida Statutes, ruling was withheld on the applicability of the public records exception to allow the parties to present further argument in their proposed recommended orders. Having considered the arguments of counsel and the requirements set forth in Section 90.803(8), Florida Statutes, it is concluded that the record contains no proof of the elements necessary to establish that a document is a public record. The report would not, therefore, be admissible over objection in a civil action and cannot, of itself, support a finding of fact.

   The School Board offered School Board Exhibits 7 through 16, which were received into evidence. 5/ At the School Board's request and without objection, official recognition was taken of School Board Rules 6Gx13-4-1.08, 6Gx13-4-1.09, 6Gx13-4A-1.21, and 6Gx13-5D-1.07 and of Department of Education Rules 6B-1.001, 6B- 1.006, and 6B-4.009, Florida Administrative Code.

   At the hearing, Mr. Powell testified in his own behalf and presented the testimony of the following witnesses: Calvin R. McCoy, formerly a part-time custodian at John F. Kennedy Middle School; student witnesses F. W. and D. M. 6/ ; and Sharon Beck, a bargaining agent representative employed by the United Teachers of Dade. Mr. Powell offered Respondent's Exhibits 4, 7, 9, 10

   through 22, 26 through 31, 35 and 36, 38, and 42 through 46,

   which were received into evidence. 7/ Respondent's Exhibit 46 consists of the transcript of the testimony of D. M. at

   Mr. Powell's criminal trial on the charge of battery of M. M.

   
   

   The transcript of the hearing was filed with the Division of Administrative Hearings, and the parties timely submitted proposed findings of fact and conclusions of law, which have been duly considered.

   FINDINGS OF FACT

   
   

   Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

   1. The School Board of Miami-Dade County, Florida, is the entity authorized to operate the public schools in the county and to "provide for the appointment, compensation, promotion, suspension, and dismissal of employees" of the school district. Section 4(b), Article IX, Florida Constitution; Section 230.23(4) and (5), Florida Statutes (1997).

   2. The Department of Education is the state agency responsible for investigating and prosecuting complaints against teachers holding Florida teachers' certificates for violations of Section 231.28, Florida Statutes. Section 231.262, Florida Statutes. Pursuant to Sections 231.261(7)(b) and 231.28(1), Florida Statutes, the Educational Practices Commission is the entity responsible for imposing discipline for any of the violations set forth in Section 231.28(1).

   3. Richard V. Powell holds Florida Educator's Certificate No. 585010, which covers the subjects of journalism and English- as-a-Second-Language ("ESOL"). His teacher's certificate has an expiration date of June 30, 1999.

   4. Mr. Powell was first employed as a teacher with the Miami-Dade County public school system in August 1985. From 1989 through August 1996, Mr. Powell was assigned to Jose Marti Middle School as an ESOL teacher; in August 1996, he was assigned to John F. Kennedy Middle School ("JFK Middle School") as an ESOL teacher; in August 1997, he was given a new assignment as the facilitator of JFK Middle School's School Center for Special Instruction. On November 26, 1997, Mr. Powell was temporarily assigned to the Region II office.

   5. At all times material to this proceeding, Mr. Powell was employed by the School Board under a professional service contract.

      November 1995 incident

      
      

   6. On the evening of November 19, 1995, at around 10:00 or 10:30 p.m., Mr. Powell was driving his Ford Bronco on Pembroke Road in Broward County, Florida. Mr. Powell's fourteen-year-old son was sitting in the front passenger seat, and he and his father began arguing about his school behavior and progress and about his failure to do his chores around the house. Mr. Powell became angry and punched his son in the mouth with his fist and then pulled the Bronco off the street, into a vacant lot.

   7. Mr. Powell got out of the Bronco, walked around the back of the vehicle to the door on the passenger's side, opened the door, and pulled his son out of the vehicle. After the child was outside the vehicle, Mr. Powell punched his son once in the face and, when the child fell to the ground, Mr. Powell kicked him at least once in the ribs. 8/

   8. The child broke away and ran to a convenience store about twenty-five yards from the vacant lot, where a witness to the incident had already called the police. When he arrived at the convenience store, the child was sobbing and holding his side; blood was pouring from his lip. 9/

   9. After the altercation with his son, Mr. Powell was not feeling well and, believing that his son had run the short distance to his home, Mr. Powell drove home. He waited a few minutes for his son and then walked from his home to Pembroke Road. He saw his son, a police car, and an ambulance at the convenience store, and he walked up to the police officers and identified himself as the child's father.

   10. Mr. Powell's son was taken to the hospital and treated and released with a split lip and a bruise in the area of his ribs.

   11. Mr. Powell was taken to the Pembroke Pines, Florida, police station. Mr. Powell is a diabetic, and, while he was at the police station, he asked to be examined by a doctor because he did not feel well. He was taken to the hospital, where he

       remained for about an hour. After his release from the hospital, Mr. Powell was arrested and charged with child abuse.

   12. On July 29, 1996, after a bench trial on child abuse charges, the court found Mr. Powell guilty but withheld adjudication, sentenced him to six months' probation, and required him to complete a parent counseling course. 10/

       Mr. Powell successfully completed the course in December 1996 and was released early from probation on January 8, 1997.

   13. In August 1996, Mr. Powell was transferred from Jose Marti Middle School to JFK Middle School, where Raymond Fontana was principal.

   14. In a letter dated August 1, 1996, Seth A. Levine, an assistant state attorney in Broward County, Florida, notified the superintendent of the Miami-Dade County public school system that Mr. Powell had been tried on the charge of child abuse, and he advised the superintendent of the resolution of the case. The letter was forwarded to James E. Monroe, who was at the time an Executive Director in the School Board's Office of Professional Standards, who reviewed the letter and transmitted the information contained therein to Mr. Fontana at JFK Middle School and to the state Department of Education Educational Practices Services. Mr. Monroe was not aware of the November 1995 incident involving Mr. Powell and his son until on or about August 14, 1996, when he received the copy of Mr. Levine's letter.

   15. In a letter dated October 10, 1996, the Education Practices Services notified Mr. Powell that it had received a complaint against him related to the charges of child abuse, and an investigation was begun which led to the filing of the original Administrative Complaint dated January 21, 1997.

   16. The disciplinary action taken against Mr. Powell by the School Board with respect to the child abuse charges consisted of a Site Disposition in the case, which the School Board referred to as Case No. A-17734. In a memorandum to Mr. Powell dated October 15, 1996, Mr. Fontana summarized the substance of a conference which was held on October 15, 1996, with Mr. Powell, Mr. Fontana, and William McCard, an assistant principal at JFK Middle School, in attendance. In the memorandum, Mr. Fontana indicated that "[t]he purpose of the conference was to establish a final disposition through administrative review of the above indicated case." Mr. Fontana further stated:

       Upon review of all the records and talking with you, it is determined that the incident in question happened in Broward County, no adjudication of guilt was established, and legally the case was closed. However, you have agreed to counseling in order to forestall any future problems. The case in question dealt with your own family member and alleged child abuse.

       
       

       We reviewed my expectations of you in regards to your teaching position at John F. Kennedy Middle School and your professional treatment of all your students. We reviewed the State Code of Ethics guidelines dealing with the same subject. Thus, I am directing you to follow the established State Code of Ethics Rules, School Board Policy, and Site Rules

       dealing with conduct becoming a teacher and subsequent teaching relationships with students.

       
       

       I feel that this will adequately bring closure to this incident and that in the future your teaching behavior will always be of the highest professional standard.

       
       

   17. In his annual evaluation for the 1995-1996 school year, Mr. Powell was rated "acceptable" in both classroom performance and in professional responsibility, and he was recommended for continued employment. Likewise, in his annual evaluation for the 1996-1997 school year, Mr. Powell was assessed "acceptable" in both classroom performance and in professional responsibility, and he was recommended for continued employment. This annual evaluation followed a Teacher Assessment and Development System Post-Observation Report completed on April 16, 1997, by

       Mr. McCard, in which he found that Mr. Powell's performance satisfied every indicator subject to evaluation. 11/ November 1997 incident

   18. On November 25, 1997, Mr. Powell was the teacher in charge of the School Center for Special Instruction ("SCSI") at JFK Middle School. The SCSI is an indoor suspension program for children who are being disciplined for behavior violations; SCSI is an alternative to sending these children home for the duration of their suspension.

   19. The SCSI class was held in the school cafeteria at JFK Middle School from 9:00 a.m. until the end of the school day at 3:40 p.m. Two sets of double doors provide access to the

       cafeteria. One set, those on the right, were locked from the outside and not normally used; the students entered and left the cafeteria by the set of doors on the left of the building.

   20. At approximately 3:20 p.m. on November 25, 1997, the SCSI students were returning to the cafeteria after cleaning up an area outside the cafeteria. Mr. Powell was outside supervising the students as they returned to the cafeteria, and there was no adult supervising the students who had already moved inside the cafeteria. During this hiatus, a seventh-grade student named M. M. got into an altercation with several other boys in the class whom he suspected of taking his book bag. The boys began pushing and shoving M. M. and encouraging him to fight with one specific boy. M. M. refused to fight; he became angry and upset and left the cafeteria by way of the set of double doors on the right side of the cafeteria. Because he was angry and upset, M. M. pushed the door open quite forcefully.

   21. Mr. Powell had had surgery on his right foot the previous day; his foot was in a cast, and he used a cane to assist him in walking. At the time M. M. pushed open the cafeteria door, Mr. Powell was standing outside directly in the path of the door as it opened. M. M. could not see Mr. Powell because there were no windows in the door. As it swung open, the door hit Mr. Powell's injured foot, and Mr. Powell raised his cane and struck M. M. on his right arm. 12/

   22. M. M. ran back inside the cafeteria, in tears. He rushed through the cafeteria and exited through the set of doors on the left side of the cafeteria. He went directly to the office of Sandra Clarke, one of the guidance counselors at JFK Middle School. When he arrived at her office, M. M. was agitated and crying, and he told Ms. Clarke that Mr. Powell had hit him on the arm with his cane. M. M. showed Ms. Clarke the mark on his arm, which was located on the outside of his right arm, midway between his shoulder and his elbow. Ms. Clarke observed that

       M. M. had a red welt on his arm, and she took him to the office of Patrick Snay, who was at that time the principal of JFK Middle School.

   23. Mr. Snay called in Assistant Principal McCard and told him about the allegations M. M. had made against Mr. Powell.

       Mr. Snay directed Mr. McCard to call the school police and to take statements from the students in the class who witnessed the incident. Mr. McCard took a statement from M. M. and observed the red mark on his arm. A school security guard went into the SCSI class right before school ended for the day and asked that any students who had seen the incident involving Mr. Powell and

       M. M. stay after school and write a statement telling what they had seen. Several students remained and prepared statements. 13/

   24. Mr. Powell reported for school the next morning but was told to report to the School Board's Region 2 office. Mr. Powell

       worked at that office for one day, and then, beginning on the Monday after Thanksgiving, he was assigned to work at Highland Oaks Middle School. He worked at that school until he was suspended by the School Board on May 13, 1998. His duties at Highland Oaks Middle School included taking care of disabled students, accompanying them to their classes and to lunch, sitting with them, and taking notes for them, all under the direct supervision of the school's media specialist.

   25. At the direction of James Monroe, who was at the time an Executive Director in the School Board's Office of Professional Practices, a personnel investigation was initiated on December 6, 1997, with respect to M. M.'s allegations against Mr. Powell. A preliminary personnel investigation report was submitted on February 13, 1998, in which the investigator concluded that the charge against Mr. Powell was substantiated.

   26. A Conference-for-the-Record was held on March 25, 1998, attended by Mr. Snay; John F. Gilbert, Director of Region 2;

       Ms. Falco, Mr. Powell's union representative; Dr. Monroe; and

       
       

       Mr. Powell. Several issues were discussed during the conference: Mr. Powell was allowed to review a copy of the School Board's investigative report regarding the incident involving M. M., and he was allowed to comment on the report. Mr. Powell denied having hit M. M. and advised the School Board personnel that he knew of an eye witness to the incident who would support his denial. Mr. Powell was also allowed to review a copy of the

       October 15, 1996, memo to Mr. Powell from Principal Fontana, discussed in paragraph 16, supra, memorializing the discipline imposed with respect to the charges that Mr. Powell had committed child abuse on his son. Dr. Monroe advised Mr. Powell that he had failed to comply with the directives included in that disposition. /14

   27. During the Conference-for-the-Record, Mr. Powell was told that a recommendation would be made to the School Board that his professional services contract not be renewed and that a decision would be made whether to take disciplinary measures against him, which could include suspension or dismissal.

   28. In a letter dated April 29, 1998, the Superintendent of Schools recommended to the School Board that Mr. Powell be suspended from his position as a teacher and that dismissal proceedings be initiated against him. The School Board accepted this recommendation on May 13, 1998.

   29. On October 29, 1998, Mr. Powell was tried by a jury on the criminal charge of battery arising out of his striking M. M. A number of students testified at the trial, and Mr. Powell was found "not guilty" of the charge.

   30. On September 5, 1997, Mr. Powell was honored by the Florida House of Representatives with a Certificate of Appreciation for "his contributions and accomplishments in the National Association of Black Scuba Divers." As a member of that association, Mr. Powell was recognized and commended for his work

       with the sunken slave ship Henrietta Marie and for his lectures and seminars on the history of this ship. On May 28, 1998, an article about the Certificate of Appreciation appeared in The Miami Times, together with a picture of Mr. Powell and Representative Larcenia Bullard. Nowhere in the certificate or in the news article is Mr. Powell identified as a teacher or former teacher in the Miami-Dade County public schools.

   31. Mr. Powell is mentioned and quoted in an article which was published in the South Florida edition of the Sunday Sun Sentinel newspaper on February 1, 1998. The article discussed the celebration of Black History Month by the descendants of slaves who are living in South Florida. Mr. Powell is identified in the article as the person who led members of the National Association of Black Scuba Divers in a dive to the site of the Henrietta Marie.

   32. Mr. Powell also gave a lecture on the Henrietta Marie in February 1997 at the Miami-Dade County Community College, as part of a special African-American history course.

       Summary

       
       

   33. The evidence presented herein clearly and convincingly establishes that Mr. Powell struck and kicked his son on November 19, 1995, and that he struck M. M. with his cane on November 25, 1997, while carrying out his duties as an SCSI teacher. Mr. Powell's testimony that he did not strike either his son or M. M. is rejected as not persuasive, as is the

       testimony of those witnesses who testified that Mr. Powell did not strike M. M.

   34. The evidence presented is sufficient to establish that Mr. Powell committed an act of gross immorality and of moral turpitude when he dragged his fourteen-year-old son from the passenger seat of his Ford Bronco, struck his son in the face twice, and kicked his son in the ribs at least once, causing him to suffer a split lip and bruised ribs. This act of violence is not only inconsistent with the public conscience, it is an act of serious misconduct which was in flagrant disregard of society's condemnation of violence against children. The seriousness of Mr. Powell's act is only exacerbated by the fact that he acted in anger.

   35. Although the evidence establishes that Mr. Powell committed an act of gross immorality, the only evidence offered regarding any notoriety arising from the November 1995 incident and from Mr. Powell's subsequent trial on the charges of child abuse is the testimony of Dr. Monroe. Dr. Monroe's testimony that there "was considerable notoriety via the print and the electronic media of Mr. Powell's action which resulted in his arrest" was not based on his personal knowledge but was based on information he received in August 1996 from an assistant state's attorney in Broward County. Dr. Monroe's testimony is not only hearsay unsupported by any other evidence in the record, it is not credible to prove that Mr. Powell's conduct was sufficiently

       notorious to cast him or the education profession into public disgrace or disrespect or to impair Mr. Powell's service in the community. Moreover, Mr. Powell presented evidence that, subsequent to the November 1995 incident, he was publicly recognized for his contributions to the community through his work with the slave ship Henrietta Marie.

   36. The evidence presented is also sufficient to establish that Mr. Powell committed an act of gross immorality and of moral turpitude with respect to the November 1997 incident involving

       M. M. When Mr. Powell lashed out at this student and struck him with a cane, albeit after the student pushed a door into his injured foot, he demonstrated a flagrant disregard of public morals and of society's condemnation of violence against children, and he committed an act that betrayed the special trust placed in teachers. However, there was no persuasive evidence presented to establish that Mr. Powell's conduct involving M. M. was sufficiently notorious to expose either Mr. Powell or the education profession to public disgrace or disrespect or that

       Mr. Powell's service in the community was impaired with respect to the November 1997 incident. The most the evidence demonstrates is that the school received inquiries from parents about the need for their children to give statements regarding the incident, but these inquiries do not rise to the level of notoriety. Furthermore, it would be inappropriate to infer notoriety and public disgrace and disrespect from the fact that

       Mr. Powell was tried and found not guilty of the charge of battery on M. M.

   37. The evidence presented is sufficient to establish that, with respect to the November 1997 incident in which Mr. Powell struck M. M. with his cane, Mr. Powell violated several provisions of the Code of Ethics of the Education Profession and of the Principles of Professional Conduct for the Education Profession in Florida because he did not exercise professional judgment; because he inflicted physical injury on M. M. rather than protecting him from such injury; and because he exposed

       M. M. to unnecessary embarrassment by striking him and causing him to cry in front of his fellow students in the SCSI class.

   38. There was, however, no persuasive direct evidence presented to establish that Mr. Powell's effectiveness as a teacher and an employee of the School Board was diminished as a result of the November 1997 incident. This direct evidence consisted solely of the opinion testimony of Dr. Monroe, which was conclusory and was based exclusively on information he obtained from Mr. Powell's records and from discussions with school administrative personnel charged with monitoring

       Mr. Powell's conduct and teaching performance. No parents or students or members of the community testified that Mr. Powell's effectiveness as a teacher and as an employee of the School Board was diminished as a result of this incident.

   39. Under the circumstances of this case, however, it can be inferred from the record as a whole that Mr. Powell's effectiveness as a School Board employee and as a teacher was seriously diminished as a result of the November 1997 incident. Mr. Powell stuck a student with a cane during school hours, and the incident was witnessed by a number of students, who were asked to testify both in this proceeding and in Mr. Powell's criminal trial. In addition, the allegations against Mr. Powell with respect to the November 1997 incident were of such a serious nature that it was necessary to relieve Mr. Powell of his teaching responsibilities and to transfer him from JFK Middle School to the Region 2 administrative offices and, from there, to another middle school in which his contact with students was closely supervised.

   40. Finally, the evidence presented is sufficient to establish that, with respect to the November 1997 incident in which he struck M. M. with his cane, Mr. Powell did not conduct himself in a manner which reflected credit on himself or on the school system, nor did his conduct conform to the highest professional standards.

       CONCLUSIONS OF LAW

       
       

   41. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and .57(1), Florida Statutes (1997).

   42. Because the Commissioner seeks to impose penalties against Mr. Powell's teacher's certificate, which could include suspension or revocation, the allegations of the Amended Administrative Complaint must be proven by clear and convincing evidence. See Ferris v. Turlington, 510 So. 2d 292, 294 (Fla. 1987)("correct standard for revocation of a professional license

       . . . is that the evidence must be clear and convincing").

       
       

   43. Because the School Board seeks to terminate the employment of Mr. Powell, who is employed by the School Board under a professional service contract, the allegations in the Notice of Specific Charges must be proven by a preponderance of the evidence. See Allen v. School Board of Dade County,

       571 So. 2d 568 (Fla. 3d DCA 1990); Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990).

   44. Clear and convincing evidence, as defined by the court in Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983),

       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.

       Clear and convincing evidence is a more rigorous standard of proof that the preponderance of the evidence standard. Smith v.

       Department of Health and Rehabilitative Services, 522 So. 2d 956, 958 (Fla. 1st DCA 1988).

       Statutory and rule violations charged by Commissioner in DOAH Case No. 97-5828.

       
       

   45. Section 231.28, Florida Statutes, gives the Education Practices Commission the power to suspend or revoke the teaching certificate of any person, either for a set period of time or permanently, or to impose any penalty provided by law, and the statute sets out the bases for the imposition of such penalties. Based on the facts alleged in the Amended Administrative Complaint, the Commissioner charged Mr. Powell with violating the following three subsections of Section 231.28(1):

       (c) Has been guilty of gross immorality or an act involving moral turpitude;

       
       

       * * *

       
       

       (f) Upon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the school board;

       
       

       * * *

       
       

       (i) Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.

       
       

   46. The Commissioner alleged in the Amended Administrative Complaint that Mr. Powell violated Section 231.28(1)(c), Florida Statutes, by committing acts of gross immorality and of moral turpitude with respect to both the November 1995 incident in

       which Mr. Powell struck his son and the November 1997 incident in which Mr. Powell struck the student M. M. during school hours.

       15/

       
       

   47. In determining whether Mr. Powell violated Section 231.28(1)(c), the Commissioner relies on the definitions of "immorality" and "moral turpitude" found in Rule 6B-4.009(3) and (6), Florida Administrative Code:

       (2) Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.

       
       

       * * *

       
       

       (6) Moral turpitude is a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.

   48. "Gross immorality" requires conduct more serious than that encompassed within the definition of "immorality" found in Rule 6B-4.009(2):

       [t]he term "gross" in conjunction with "immorality" has heretofore been found to mean "immorality which involves an act of misconduct that is serious, rather than minor in nature, and which constitutes a flagrant disregard of proper moral standards." Education Practice Commission v. Knox, 3 FALR 1373-A (Department of Education 1981).

       Frank T. Brogan v. Eston Mansfield, DOAH Case No. 96-0286 (EPC Sept. 27, 1996).

   49. The court in State ex rel. Tullidge v. Hollingsworth,

       
       

       146 So. 660, 661 (1933), observed that moral turpitude

       
       

       involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society. . . . It has also been defined as anything done contrary to justice, honesty, principle, or good morals, though it often involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated.

   50. In Adams v. Professional Practices Council, 406 So. 2d 1170 (Fla. 1st DCA 1975), the court concluded that teachers "charged by sections 231.09 and 231.28(1) with providing leadership and maintaining effectiveness as teachers . . . are traditionally held to a high moral standard in the community."

   51. When Mr. Powell struck and kicked his fourteen-year-old son and when he struck a student with a cane, he committed acts of serious misconduct, which were inherently base and in flagrant disregard of the prohibition by both society and the law against acts of violence against children. Based on the findings of fact herein, the Commissioner has proven by clear and convincing evidence that Mr. Powell's conduct in these two instances falls within the definition of gross immorality found in the cases cited above.

   52. However, because the Commissioner depends on the definition of immorality set forth in Rule 6B-4.009(2), Florida

       Administrative Code, there is a second element which must be proven before Mr. Powell can be found guilty of gross immorality in violation of Section 231.28(1)(c). The court in McNeill v.

       Pinellas County School Board, 678 So. 2d 476, 477 (Fla. 2d DCA 1996) ruled that

       in order to dismiss a teacher for immoral conduct the factfinder must conclude:

       1. that the teacher engaged in conduct inconsistent with the standards of public conscience and good morals, and b) that the conduct was sufficiently notorious so as to disgrace the teaching profession and impair the teacher's service in the community. See McKinney v. Castor, 667 So. 2d 387 (Fla. 1st DCA 1995) . . . .

          Based on the findings of fact herein, the Commissioner has failed to prove by clear and convincing evidence that Mr. Powell's conduct was notorious or brought public disgrace or disrespect to Mr. Powell or to the education profession or that Mr. Powell's ability to serve the community was impaired. Therefore, the Commissioner has failed to meet its burden of proving that

          Mr. Powell committed acts of gross immorality in violation of Section 231.28(1)(c), Florida Statutes.

   53. Nonetheless, based on the facts found herein, the Commissioner has proven by clear and convincing evidence that Mr. Powell committed acts involving moral turpitude when he committed violence against his son and M. M. Accordingly, the Commissioner has met its burden of proving that Mr. Powell violated Section 231.28(1)(c), Florida Statutes. 16/

   54. The Commissioner alleged in the Amended Administrative Complaint that Mr. Powell violated Section 231.28(1)(f), Florida Statutes, by committing an act "of personal conduct which seriously reduces his effectiveness as an employee of the school board" with respect to the November 1997 incident involving the student M. M. However, based on the findings of fact herein, the Commissioner has failed to meet his burden of proving by clear and convincing evidence that Mr. Powell's effectiveness as a School Board employee was seriously reduced by his act of violence against M. M. In McNeill v. Pinellas County School Board, 678 So. 2d 476, 478 (Fla. 2d DCA 1996), the court held that the School Board failed to meet its burden of proving a teacher's "impaired effectiveness" with respect to a charge of immorality when

       testimony offered by school officials to establish impaired effectiveness was unsupported by "specific information from students, parents, or coworkers . . . ." Two citizens testified as to why McNeill should be dismissed; however both were unable to provide specific information regarding the actual impact of McNeill's conduct on Pinellas County students.

       In the absence of such specific evidence, the Commissioner has failed to prove by clear and convincing evidence its charge that Mr. Powell violated Section 231.28(1)(f), Florida Statutes.

   55. The Commissioner alleged in the Amended Administrative Complaint that Mr. Powell violated Section 231.28(1)(i), Florida Statutes, by violating the Principles of Professional Conduct of

       the Education Profession in Florida with respect to the November 1997 incident in which he struck M. M. with his cane. The Commissioner has alleged specifically that Mr. Powell violated Subsections (3)(a), (e), and (f) of Rule 6B-1.006, Florida Administrative Code, which provide as follows:

       1. Obligation to the student requires that the individual:

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

       
       

       * * *

       
       

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

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

       
       

       On the basis of the findings of fact herein, the Commissioner has proven by clear and convincing evidence that Mr. Powell violated Section 231.28(1)(i) by failing to protect M. M. from physical injury and by exposing him to unnecessary embarrassment, which are violations of Rule 6B-1.006(3)(a) and (e).

   56. The Commissioner also included charges in the Amended Administrative Complaint that Mr. Powell violated the Code of Ethics of the Education Profession, Rule 6B-1.001, Florida Administrative Code, by failing to exercise his best professional judgment and by failing to achieve and sustain the highest degree of ethical conduct and that Mr. Powell violated two sections of Rule 6B-4.009, Florida Administrative Code, which contains definitions of the seven grounds upon which a School Board can

       suspend or dismiss instructional personnel as set forth in Section 231.36(1)(a), Florida Statutes. The Education Practices Commission cannot impose a penalty against Mr. Powell's teacher's certificate on the basis of these charges. The grounds upon which the Education Practices Commission can impose a penalty against a teacher's certificate are set forth in Section 231.28(1), Florida Statutes. However, that section contains no provision which would permit the Education Practices Commission to impose a penalty on a teacher's certificate for violation of the enumerated rules, and the Commissioner has not cited any other authority which would permit it to do so.

       Statutory and rule violations charged by the School Board in DOAH Case No. 98-2387.

       
       

   57. Subsections (1)(a) and (6)(a) of Section 231.36, Florida Statutes, define the circumstances in which a school board can suspend or dismiss a member of the district's instructional staff during the term of his or her contract:

       (1)(a) Each person employed as a member of the instructional staff in any district school system shall be properly certificated pursuant to s. 231.17 or employed pursuant to

       s. 231.1725 and shall be entitled to and shall receive a written contract as specified in chapter 230. All such contracts, except continuing contracts as specified in subsection (4), shall contain provisions for dismissal during the term of the contract only for just cause. Just cause includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.

       * * *

       (6)(a) Any member of the instructional staff, excluding an employee specified in subsection (4) [those who had continuing contracts prior to July 1, 1984], may be suspended or dismissed at any time during the term of the contract for just cause as provided in paragraph (1)(a). 17/

       
       

   58. The School Board based the charges in the Notice of Specific Charges on both the November 1995 incident in which

       Mr. Powell struck his son and the November 1997 incident in which Mr. Powell struck the student M. M. However, the School Board cannot use the November 1995 incident involving Mr. Powell's son as a basis for dismissing Mr. Powell from employment with the School Board. The School Board previously imposed discipline on Mr. Powell with respect to this incident in the Site Disposition conducted on October 15, 1996, in which Mr. Powell was directed to comply with the Code of Ethics, School Board policies, and school site rules dealing with appropriate teacher conduct and proper student-teacher relations. Mr. Powell cannot be subjected to a second disciplinary action for the same conduct, and, therefore, the only incident at issue with respect to the School Board's action to dismiss Mr. Powell from his employment is the incident involving M. M.

   59. In Count I of its Notice of Specific Charges, the School Board charged Mr. Powell with misconduct in office. That term is defined in Rule 6-4009(3), Florida Administrative Code, as follows:

       (3) Misconduct in office is defined as a violation of the Code of Ethics of the

       Education Profession as adopted in Rule 6B- 1.001, FAC., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, FAC., which is so serious as to impair the individual's effectiveness in the school system.

       
       

       The School Board's charge that Mr. Powell committed misconduct in office is predicated on allegations that he violated Rule 6B- 1.001(2) and (3) and Rule 6B-1.006(3)(a) and (e), Florida Administrative Code.

   60. Rule 6B-1.001, Florida Administrative Code, the Code of Ethics of the Education Profession, provides in pertinent part:

       1. 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.

       2. 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.

   61. Rule 6B-1.006, Florida Administrative Code, the Principles of Professional Conduct for the Education Profession in Florida, provides in pertinent part as follows:

       1. Obligation to the student requires that the individual:

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

             
             

             * * *

             (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

             
             

   62. According to the definition in Rule 6B-4.009(3), Florida Administrative Code, the School Board must prove two elements to establish misconduct in office. First, the School Board must prove that Mr. Powell violated a provision of the Code of Ethics of the Education Profession set forth in Rule 6B-1.001, Florida Administrative Code, or a provision of the Principles of Professional Conduct for the Education Profession in Florida set forth in Rule 6B-1.006, Florida Administrative Code. With respect to this first element, based on the findings of fact herein, the School Board has proven by a preponderance of the evidence that Mr. Powell inflicted physical harm on M. M., in violation of Rule 6B-1.006(3)(a), and that Mr. Powell exposed

       M. M. to unnecessary embarrassment, in violation of Rule 6B- 1.006(3)(e). The School Board has also proven by a preponderance of the evidence that Mr. Powell did not use any judgment, much less his best professional judgment, when he struck M. M. with his cane, which constitutes a violation of Rule 6B-1.001(2), Florida Administrative Code.

   63. The second element of the charge of misconduct in office which the School Board must prove is that the violations of the Code of Ethics of the Education Profession and the Principles of Professional Conduct for the Education Profession in Florida are "so serious as to impair the individual's

       effectiveness in the school system." Rule 6B-4.009(3), Florida Administrative Code. As noted in the findings of fact herein, although there is no direct evidence that Mr. Powell's striking

       M. M. impaired his effectiveness as a teacher, there is sufficient evidence in the record, when taken together with

       Mr. Powell's act of striking a student with a cane during a class and in view of several students, to support the inference that Mr. Powell's conduct seriously impaired his effectiveness as a teacher. Based on the facts found herein and the entire record of these proceedings, the School Board has met its burden of proving that Mr. Powell's act of violence against M. M. seriously impaired his effectiveness as a teacher. 18/ Accordingly, the School Board has proven by a preponderance of the evidence that Mr. Powell has committed misconduct in office, and it has, therefore, established just cause to dismiss Mr. Powell from his employment.

   64. In Count II of its Notice of Specific Charges, the School Board charged Mr. Powell with gross insubordination and willful neglect of duty by failing to carry out the directives contained in the Site Disposition of October 15, 1996. "Gross insubordination" is defined in Rule 6B-4009(4), Florida Administrative Code, as follows:

       1. 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.

       There was no persuasive evidence presented to establish that Mr. Powell is guilty of gross insubordination, and the School Board cannot dismiss Mr. Powell from his employment on the basis of this charge.

   65. In County III of the Notice of Specific Charges, the School Board charged Mr. Powell with immorality. That term is defined in Rule 6B-4.009(2), Florida Administrative Code, as follows:

       (2) Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.

       Based on the findings of fact herein, the School Board has proved by a preponderance of the evidence that Mr. Powell engaged in conduct inconsistent with public conscience and good morals with respect to the November 25, 1997, incident in which Mr. Powell struck M. M. in the arm with his cane. However, based on the findings of fact herein, the School Board did not meet its burden of proving by a preponderance of the evidence that Mr. Powell's act of striking M. M. with a cane was sufficiently notorious that either Mr. Powell or the education system suffered public disgrace or disrespect or that Mr. Powell's service in the community was impaired. In the absence of any evidence to prove the second element of the offense of immorality, the School Board

       cannot dismiss Mr. Powell from employment based on the charge of immorality.

   66. In Counts IV and V of the Notice of Specific Charges, the School Board charged Mr. Powell with violations of School Board Rules 6Gx13-4A-1.21, 6Gx13-4-1.08, 6Gx13-4-1.09, and 6Gx13- 5D-1.07.

1. Rule 6Gx13-4A-1.21 provides in pertinent part as follows:

   1. Employee Conduct

      
      

      All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system.

      
      

      Unseemly conduct or the use of abusive and/or profane language in the workplace is expressly prohibited.

      
      

2. Rule 6Gx13-4-1.08 provides as follows: VIOLENCE IN THE WORKPLACE

   Nothing is more important to Dade County Public Schools (DCPS) than protecting the safety and security of its students and employees and promoting a violence-free work environment. Threats, threatening behavior, or acts of violence against students, employees, visitors, guests, or any other individuals by anyone on DCPS property will not be tolerated. Violations of this policy may lead to disciplinary action which includes dismissal, arrest, and/or prosecution.

   
   

   Any person who makes substantial threats, exhibits threatening behavior, or engages in

   violent acts on DCPS property shall be removed from the premises as quickly as safety permits, and shall remain off DCPS premises pending the outcome of an investigation. DCPS will initiate an appropriate response. This response may include, but is not limited to, suspension and/or termination of any business relationship, reassignment of job duties, suspension or termination of employment, and/or criminal prosecution of the person or persons involved.

   
   

   Dade County Public Schools employees have a right to work in a safe environment.

   Violence or the threat of violence by or against students and employees will not be tolerated.

   
   

3. Rule 6Gx13-4-1.09 provides as follows: EMPLOYEE-STUDENT RELATIONSHIPS

   Nothing is more important to Miami-Dade County Public Schools than protecting the physical and emotional well-being of its students. This policy is developed to ensure that all School Board employees will conform to the highest professional, moral, and ethical standards in dealing with students on or off school property.

   
   

   As such, all School Board personnel are strictly prohibited from engaging 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; exploiting an employee-student relationship for any reason; and/or demonstrating any other behavior which gives an appearance of impropriety.

   
   

   Any School Board employee who has knowledge of or has reasonable cause to suspect that another School Board employee is engaging in unacceptable relationships and/or

   communications with a student, as herein defined, shall immediately report such information to a site or region supervisor. Failure to do so shall constitute a violation of this Rule.

   
   

4. Rule 6Gx13-5D-1.07 provides as follows: CORPORAL PUNISHMENT - PROHIBITED

The administration of corporal punishment in Miami-Dade County Public Schools is strictly prohibited. Miami-Dade County Public Schools has implemented comprehensive programs for the alternative control of discipline. These programs include, but are not limited to, counseling, timeout rooms, in-school suspension centers, student mediation and conflict resolution, parental involvement, alternative education programs, and other forms of positive reinforcement.

In addition, suspensions and/or expulsions are available as administrative disciplinary actions depending upon the severity of the misconduct. Procedures are in place for students to make up any work missed while on suspension, or to participate in an alternative program if recommended for expulsion.

Based on the facts found herein, the School Board has met its burden of proving by a preponderance of the evidence that

Mr. Powell violated School Board Rules 6Gx13-4-1.08 and 4-1.09, and the School Board can dismiss Mr. Powell from his employment based on such violations.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that

1. In DOAH Case NO. 97-5828, the Education Practices Commission enter a final order finding Richard V. Powell guilty

   of violating Section 231.28(1)(c) and (i), Florida Statutes, and revoking his teacher's certificate for a period of two years, followed by three years' probation, subject to reasonable conditions to be determined by the Commission; and

2. In DOAH Case No. 98-2387, the School Board of Miami-Dade County, Florida, enter a final order finding Richard V. Powell guilty of misconduct in office pursuant to Section 231.36(1)(a) and (6)(a), Florida Statutes, and of violating School Board Rules 6Gx13-4A-1.21 and 6Gx13-4-1.08 and 4-1.09; sustaining his suspension; and dismissing him from employment as a teacher with the Miami-Dade County Public Schools.

DONE AND ENTERED this 11th day of October, 1999, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1999.

ENDNOTES

1/ In the Amended Administrative Complaint, the Commissioner has incorrectly referred to the two paragraphs containing the allegations of misconduct as paragraphs 3 and 4. Paragraph references in this order have been changed to paragraphs 4 and 5, respectively, to reflect the correct paragraph numbers.

2/ The student witnesses will be referred to by their initials in this Recommended Order; the names are given in full in the transcript of the proceedings.

3/ The Commissioner offered Department of Education Exhibit 15 into evidence but subsequently withdrew the exhibit.

4/ Department of Education Exhibits 1 through 4, 8, 20 (in

part), 21, 23 through 30, and 38 were objected to on the grounds of hearsay and were received into evidence pursuant to Section 120.57(1)(c), Florida Statutes.

5/ Portions of School Board Exhibit 12 were objected to on the grounds of hearsay, and the exhibit was received into evidence pursuant to Section 120.57(1)(c), Florida Statutes.

6/ The testimony of D. M. was offered by Mr. Powell in the form of a transcript of testimony D. M gave at Mr. Powell's criminal trial on the charge of battery of M. M. Counsel for the Commissioner and for the School Board objected on the grounds that the transcript did not meet the requirements for the "former testimony" hearsay exception found in Section 90.804(2)(a), Florida Statutes. The transcript was received into evidence subject to the provisions of Section 120.57(1)(c), Florida Statutes, and the parties were given leave to file memoranda of law in support of and in opposition to the admissibility of the transcript of D. M's testimony as an exception to the hearsay rule. The parties filed their memoranda, and an order was entered on May 19, 1999, finding that the transcript was admissible under the former testimony exception to the hearsay rule and that it could, therefore, support a finding of fact because it would be admissible over objection in a civil action.

7/ Respondent's Exhibits 2, 7, 10 through 13, 15, 17-21, 23 and

24, 25, 28 through 30, and 35 were objected to on the grounds of hearsay and were received into evidence pursuant to Section 120.57(1)(c), Florida Statutes. Mr. Powell argued that Exhibits 7, 29, and 30 should be accepted as exceptions to the hearsay rule as evidence regarding character and/or as party admissions. Having considered the arguments of counsel, it is concluded that Respondent's Exhibits 7, 29, and 30 do not fall within either exception to the hearsay rule, and they cannot, therefore, form the basis of a finding of fact because they would not be admissible over objection in a civil action.

Although the testimony of the authors of the letters at issue would be admissible as evidence of reputation as to character pursuant to the exception to the hearsay rule found in Section 90.803(21), Florida Statutes, the fact that the evidence is contained in written statements renders the statements

themselves hearsay and, therefore, not covered by the character evidence exception. In addition, the mere fact that the letter writers are or were employed by the School Board does not mean that their letters are admissions of the School Board pursuant to the provisions of Section 90.803(18)(d), Florida Statutes. There has been no showing, as required by Section 90.803(18)(d), that these employees were commenting on matters within the scope of their employment when they offered their observations regarding his competence and character. Therefore, the subject letters are not admissible as admissions of the School Board.

8/ The particulars regarding the number of punches and kicks Mr. Powell inflicted on his son are derived from the sworn statement the son provided to the police. Although it is hearsay, this statement explains and supplements the testimony given at the hearing by Diane Kedzierski and Joan Day, who witnessed the altercation between Mr. Powell and his son, that they observed Mr. Powell punching his son in the car and punching and kicking his son outside of the vehicle.

9/ After weighing the evidence presented regarding this incident and assessing the credibility of the witnesses, the testimony of Ms. Kedzierski and Ms. Day, corroborated by the sworn statement of Mr. Powell's son and by the photograph taken of Mr. Powell's son at the hospital, is accepted as more persuasive than that of Mr. Powell, who denied punching or kicking his son and who testified that he did not observe any injury to his son after the altercation, while the child was waiting in the ambulance to be taken to the hospital.

10/ Mr. Powell has been his son's custodial parent since the child was four years old.

11/ At the hearing, Mr. McCard testified that this report did not reflect several complaints he had received about Mr. Powell's teaching performance. He stated that he spoke with Mr. Powell regarding what he perceived as performance deficiencies even though he did not include them in the report. There is nothing in the record to indicate that a conference-for-the-record was held with respect to these matters or that Mr. Powell was subject to any type of discipline or was placed on prescription as a result of these alleged complaints.

12/ The testimony that M. M. was punched and kicked by a group of students in the cafeteria immediately before he hit Mr. Powell with the cafeteria door is not credited. There were no injuries evident in the photograph taken of M. M. taken shortly after the incident which were consistent with punches or kicks. It is uncontroverted that, when he arrived at the office of Sandra Clarke on the afternoon of November 25, 1997, M. M. had a red

welt on the outside of his upper right arm that was consistent with a blow from a cane.

After weighing the evidence presented regarding the incident and assessing the credibility of the witnesses, the testimony of

M. M., as corroborated by the testimony of N. S., K. G., B. B., and A. M. and as explained and supplemented by their written statements, that Mr. Powell hit M. M. in the arm with the cane is credited as more persuasive than the testimony of Mr. Powell that he never struck M. M. but, rather, yelled out in pain after he was hit in the foot and told M. M. to get back inside the cafeteria and sit down.

In addition, the testimony of N. S., K. G., B. B., and A. M. is credited even though Mr. Powell elicited testimony from K. G. that she and N. S. discussed the incident with one another and with M. M.'s mother on the day of the final hearing. The testimony of these four student witnesses at the hearing is consistent in two critical respects with the information in the written statements N. S., B. B., and A. M. prepared on

November 25, 1997, shortly after the incident involving M. M. and Mr. Powell, and reaffirmed to Detective Daniel Forman of the School Board police on December 17, 1997, and with the information in the statement K. G. gave to Detective Forman on January 15, 1998: Mr. Powell was hit by a cafeteria door pushed open by M. M., and Mr. Powell immediately thereafter hit M. M. with his cane.

13/ Mr. Powell challenged at the hearing and in his proposed recommended order the manner in which the administration of JFK Middle School and the School Board police conducted the investigation of the incident involving M. M. and the asserted lack of any meaningful independent investigation by the

Commissioner. Mr. Powell's primary complaint apparently is that the detective investigating the incident for the School Board did not take statements from all of the students who were in the SCSI class on the afternoon of November 25, 1997, and did not take a statement from a part-time custodian who was in the area of the cafeteria doors at the time of the incident. However, any deficiencies Mr. Powell perceives in the investigations leading up to his suspension by the School Board and to the filing of the Amended Administrative Complaint by the Commissioner are irrelevant in this administrative proceeding. This proceeding is governed by the provisions of Section 120.57(1), Florida Statutes, and is a de novo proceeding in which the School Board and the Commissioner have the burden of coming forward with sufficient evidence to prove that Mr. Powell committed the acts and violations alleged in the Notice of Specific Charges and in the Amended Administrative Complaint. The sufficiency of the School Board's investigation is not at issue herein.

14/ Mr. Powell was also allowed to review records of incidents which are not included in the Notice of Specific Charges filed in this case and are, therefore, not relevant to this proceeding.

15/ The Commissioner filed its original Administrative Complaint based on the November 1995 incident involving Mr. Powell's son and then amended the original Administrative Complaint to include the November 1997 incident involving M. M.

16/ In contrast to the definition of immorality in Rule 6B- 4.009(2), the definition of moral turpitude in Rule 6B-4.009(6) does not require notoriety or impaired ability for service in the community.

17/ Section 1.B.1.a. of Article XXI of the Contract between the Dade County Public Schools and the United Teachers of Dade provides that "[a]ny member of the instructional staff may be suspended or dismissed at any time during the school year, provided that the charges against him/her are based upon Florida Statutes.

18/ Such a conclusion is not inconsistent with the conclusion in paragraph 54, supra, that the Commissioner has failed to meet his burden of proof with respect to Mr. Powell's effectiveness as a School Board employee. The Commissioner's burden of proving the charges in the Amended Administrative Complaint by clear and convincing evidence is substantially more rigorous than that of the School Board's burden of proving its charges by a preponderance of the evidence.

In addition, such a conclusion is not inconsistent with the holding in McNeill v. Pinellas County School Board, 678 So. 2d

476 (Fla. 2d DCA 1996), and in Tenbroeck v. Castor, 640 So. 2d

164 (Fla. 1st DCA 1994), that the impaired effectiveness of a teacher can only be proven by direct and specific evidence of the impact of the teacher's conduct on his students because the facts herein are significantly different from the facts in these two cases.

In McNeill, a teacher was suspended by the School Board after he was arrested for "criminal battery for allegedly touch[ing] an undercover law enforcement officer in a sexually suggestive way." 678 So. 2d at 477. First, the offending conduct did not take place in the school. In addition, there was no specific evidence that the incident had an adverse impact on his relationship with his students, and Mr. McNeill presented overwhelming evidence of support from his "students, colleagues, and community." Id. at 478.

In Tenbroeck, the Education Practices Commission took disciplinary action against an assistant principal who married a sixteen-year-old student. Not only was there no evidence from students or teachers that Mr. Tenbroeck's marriage reduced his effectiveness as an employee of the School Board, the court found that "[t]he attending publicity surrounding [Mr. Tenbroeck's] marriage . . . cannot be used by the commissioner of the EPC to establish that [his] effectiveness as a teacher or administrator has been impaired" because there was no statute or rule prohibiting him from marrying the student." 640 So. 2d at 168.

In this case, Mr. Powell's act of misconduct took place in the school, during class, and it consisted of a prohibited act of violence against a student. It would seem that the conclusion herein that Mr. Powell's conduct impaired his effectiveness as a teacher can be supported in the same manner that the court supported the same conclusion in Summers v. School Board of Marion County, 666 So. 2d 175, 175-76 (Fla. 5th DCA 1995):

The order of suspension appealed does not make this explicit finding [that the misconduct was so serious that it impaired the teacher's effectiveness in the school system] and there was no specific evidence in that regard. That is, no one testified that appellant's conduct impaired his effectiveness.

. . . While we agree the school board should have followed the code rule we will not reverse this order because it is clear from the record and the order that the conduct must have impaired his effectiveness as a teacher, in this case.

COPIES FURNISHED:

Jana Gold Taylor, Esquire Whitelock & Associates, P.A.

316 Northeast Fourth Street

Fort Lauderdale, Florida 32301-1154

Luis M. Garcia, Esquire Attorney's Office

School Board of Miami-Dade County, Florida 1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Roy J. Barquet, Esquire Alison E. Bethel, Esquire Steel Hector & Davis LLP

200 South Biscayne Boulevard, Suite 4000 Miami, Florida 33131

Kathleen M. Richards, Executive Director Department of Education

224-E Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Tom Gallagher, Commissioner of Education Department of Education

The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400

Roger Q. Cuevas, Superintendent Miami-Dade County School District 1450 Northeast 2nd Avenue, #403

Miami, Florida 33132-1308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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

Docket for Case No: 97-005828

Orders for Case No: 97-005828