STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 00-2665

)

MARY JANE MCELRATH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the final hearing was held in this case on March 21, 2001, by video teleconference, with the Petitioner and the Respondent appearing in Miami, Florida, before Patricia Hart Malono, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, who was located in Tallahassee, Florida.

APPEARANCES

For Petitioner: Madelyn P. Schere, Esquire

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

Miami, Florida 33132

For Respondent: Lisa N. Pearson, Esquire 1/

United Teachers of Dade 2929 Southwest Third Avenue Miami, Florida 33129

STATEMENT OF THE ISSUE

Whether the Respondent committed the violations alleged in the Second Amended Notice of Specific Charges filed by the Petitioner on March 15, 2001, and, if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

In a letter dated June 22, 2000, the School Board of Miami- Dade County ("School Board") notified Mary Jane McElrath that the School Board had taken action on June 21, 2000, to suspend her from her teaching position and to initiate dismissal proceedings against her. Ms. McElrath timely requested a hearing, and the School Board duly forwarded the request to the Division of Administrative Hearings for assignment of an administrative law judge.

On August 8, 2000, the School Board filed its Notice of Specific Charges, and, on the same day, filed its Amended Notice of Specific Charges, amending only as to Ms. McElrath's address. On March 19, 2001, an order was entered allowing the School Board to file its Second Amended Notice of Specific Charges, which became the charging document in this case. In the Second Amended Notice of Specific Charges, the School Board alleges that, in the presence of a coworker and several students,

Ms. McElrath sprayed a substance into another coworker's eyes that caused him pain. On the basis of this action, the School

Board charges in Count I that Ms. McElrath had engaged in conduct unbecoming a School Board employee, in violation of School Board Rule 6Gx13-4A-1.21; the School Board charges in Count II that Ms. McElrath had engaged in misconduct in office that was so serious it impaired her effectiveness in the school system, in violation of Rules 6B-1.001(1), (3), and/or (3) and 6B-1.006(5)(c) and/or (f), Florida Administrative Code; and the School Board charges in Count III that Ms. McElrath had engaged in violence in the workplace, in violation of School Board

Rule 6Gx13-4.1.08. The School Board asserts that these violations establish just cause for terminating Ms. McElrath's employment as a teacher pursuant to Section 231.36(1)(a) and (6)(a), Florida Statutes (1999).

On March 15, 2001, Ms. McElrath filed a Motion in Limine, in which she asserted that several unsuccessful attempts had been made by both parties to take the deposition of Eboni Gibson, a witness that appeared on the School Board's witness list. Ms. McElrath requested that Ms. Gibson be excluded as a witness at the hearing subject to Ms. Gibson's submitting herself for deposition prior to giving testimony. Because it was not known if Ms. Gibson would appear at the final hearing, ruling was withheld on the motion.

At the hearing, the School Board presented the testimony of the following witnesses: Thomas Rolle, a computer specialist

employed by the School Board at Miami Jackson Senior High School ("Miami Jackson"); Diane McKnight, a former student at Miami Jackson; Ludgerte Jean-Baptiste, a paraprofessional employed by the School Board at Miami Jackson; and Sharon Jackson, a District Director of the School Board's Office of Professional Standards. In addition, a sign-language interpreter assisted Mr. Rolle. Petitioner's Exhibits 1 through 13 were offered and received into evidence; Petitioner Exhibit 10 consists of the transcript of the deposition of Mercedes Thompson, a former student at Miami Jackson. The School Board presented the testimony of Mr. Rolle and Ms. Jackson on rebuttal.

Ms. McElrath testified in her own behalf and presented the testimony of Catherine McElrath, her sister; Andrea Zuniga, a former student at Miami Jackson; Sheila U. Dunkley, a custodian at Miami Jackson; Israel Katz, an assistant principal at Miami Jackson; and Mairi Callam, a media specialist at Miami Jackson. Respondent's Exhibits 1, 4 through 7, 10, and 11 were offered and received into evidence; Respondent's Exhibits 2, 3, and 8 were rejected but not proffered. At the hearing, Ms. McElrath was given leave to take the deposition of Delores Williams after the hearing and to late-file the transcript of the deposition because Ms. Williams was unable to attend the hearing due to illness. No such transcript has been filed with the Division of Administrative Hearings to date. Ms. Gibson did not appear at

the final hearing, and the Motion in Limine was denied at the hearing as moot.

At the hearing, the School Board elicited testimony from Sharon Jackson to the effect that, in her opinion,

Ms. McElrath's actions violated Rule 6B-1.006(5)(a) and (d), Florida Administrative Code. Ms. McElrath moved to strike this testimony because the Second Amended Notice of Specific Charges did not allege that Ms. McElrath had violated these rule sections. In response, the School Board moved to amend its Second Amended Notice of Specific Charges to conform to the evidence. Ruling was withheld on the two motions, and the parties were given leave to present argument in their Proposed Recommended Orders.

As noted by the School Board in its legal argument on this issue, an administrative law judge has discretion with respect to allowing amendments to charging documents in administrative proceedings. See Pilla v. School Board of Dade County, Florida,

655 So. 2d 1312, 1314 (Fla. 3d DCA 1995). It has been held that it is an abuse of discretion to deny a motion to amend a petition 2/ unless the party opposing the motion shows actual prejudice. See Optiplan v. School Board of Broward County, 710

So. 2d 569, 571 (Fla. 4th DCA 1998). In this case, there was no showing that Ms. McElrath would be prejudiced or confounded in her ability to present a defense if the proposed amendments were

permitted. However, in its argument in support of its motion, the School Board has conceded that the two additional rule sections it seeks to include in the Second Amended Notice of Specific Charges "are encompassed in the other rule violations that were alleged." This being the case, the School Board's motion is denied, there being no need to include duplicative charges in the Second Amended Notice of Specific Charges.

Accordingly, Ms. McElrath's motion to strike Ms. Jackson's testimony with respect to these two rule sections is granted, and said testimony shall be stricken from the record.

The transcript of the proceedings was filed with the Division of Administrative Hearings on April 30, 2001. Pursuant to an order granting an extension of time, the parties timely filed their proposed findings of facts and conclusions of law, which have been considered in preparing this Recommended Order.

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 is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Article IX, Florida Constitution;

   Section 230.03, Florida Statutes.

2. At all times material to this proceeding, Ms. McElrath was employed as a teacher by the School Board and assigned to Miami Jackson, where she taught for almost 13 years.

   Ms. McElrath taught English, and she was the coach of the Miami Jackson debate team for one year and the advisor for the student newspaper for six years. She has consistently been rated acceptable in teaching and in professional responsibility in her annual evaluations at Miami Jackson.

3. Ms. McElrath is employed by the School Board under a professional service contract. Prior to the incident that is the subject of these proceedings, Ms. McElrath had never been the subject of a School Board personnel investigation. She was known to her colleagues as a friendly person and had never displayed violent behavior.

4. Thomas Rolle is a computer specialist employed by the School Board and assigned to Miami Jackson. Mr. Rolle's duties include trouble-shooting and maintaining the computers at Miami Jackson and administering the computer network.

5. Mr. Rolle is blind in his left eye and is severely hearing impaired. He wears hearing aids in both ears; he can also read lips and understand a speaker in a face-to-face conversation.

6. About three weeks prior to February 23, 2000, Mr. Rolle was conducting a computer survey at Miami Jackson to determine

   which computers needed to be configured for the school's Internet connection. When he arrived at Ms. McElrath's classroom, the class was watching a video on television, and the classroom was dark. Mr. Rolle also noticed that the computer and the Internet connection drop were on opposite sides of the classroom. Ms. McElrath told Mr. Rolle that she would move the computer closer to the Internet connection drop and that he should come back later to work on the computer.

7. About ten days later, Ms. McElrath passed Mr. Rolle in the hallway, and Ms. McElrath told Mr. Rolle that she had moved the computer in her classroom. Ms. McElrath asked that

   Mr. Rolle come to her classroom to configure the computer. Ms. McElrath felt that her class was getting behind because there was no Internet connection in her classroom. Mr. Rolle did not go to Ms. McElrath's classroom as she had requested.

8. Shortly before 11:00 a.m. on February 23, 2000, Ms. McElrath went to Dr. Choate, Mr. Rolle's supervisor, and asked if Dr. Choate could expedite Mr. Rolle's visit to her

   classroom to configure her computer. While Ms. McElrath was in Dr. Choate's office, Dr. Choate paged Mr. Rolle, and he immediately called back. Dr. Choate asked Mr. Rolle if he could go to Ms. McElrath's classroom; he told her that he was working in Room 137, the Language Arts lab, but that he would be finished soon and would go to Ms. McElrath's classroom in about

   30 minutes, after he had finished a few tasks on the first floor of the school building. Dr. Choate gave Ms. McElrath this information.

9. Ms. McElrath left Dr. Choate's office and went directly to Room 137. She was frustrated because Mr. Rolle had told her before that he would configure her classroom computer but had not done so. Ms. McElrath thought that if she went to Room 137 and waited for him, Mr. Rolle would be more motivated to go to her classroom immediately.

10. When Ms. McElrath entered Room 137, Mr. Rolle was helping Ludgerte Jean-Baptiste, a school paraprofessional, create a school map for a job career fair. Both Ms. Jean- Baptiste and Mr. Rolle were facing away from the door to the room. At first, Ms. McElrath looked for some novels she had seen previously in the Language Arts lab, but they weren't there. She jiggled her keys to make noise so Mr. Rolle and Ms. Jean-Baptiste would notice her. Mr. Rolle did not turn around, but, after a few moments, Ms. Jean-Baptiste turned around and asked if she could help Ms. McElrath. Ms. McElrath told her she was waiting for Mr. Rolle.

11. Ms. Jean-Baptiste touched Mr. Rolle on the shoulder, and he turned around. Ms. McElrath asked him to come with her to her classroom to configure the computer for the Internet. Mr. Rolle told her that he needed to finish helping Ms. Jean-

    Baptiste and would go to Ms. McElrath's classroom within 30 minutes. Ms. McElrath was very persistent and repeatedly inquired as to why he could not come to her classroom immediately. Ms. Jean-Batiste told Mr. Rolle that she could finish with the map if there was something else that he needed to do.

12. Mr. Rolle got up to leave Room 137, and Ms. McElrath asked Mr. Rolle if he was ready to go to her classroom.

    Mr. Rolle told Ms. McElrath that he would go to her classroom within 30 minutes, that he needed to go to his office to get the computer software, the configuration information, and the drivers before he went to her classroom.

13. Ms. McElrath was annoyed. She became confrontational and blocked Mr. Rolle's path to the door of Room 137. When

    Mr. Rolle moved to his left to go around her, Ms. McElrath moved to her right to block his path. She continually asked him why he could not go to her classroom "now," and she persisted in moving to block his path to the door. Mr. Rolle stated several times to Ms. Jean-Baptiste that she should watch, that she was a witness.

14. When Mr. Rolle reached the door, Ms. McElrath's back was to the door. Mr. Rolle tricked Ms. McElrath by feinting in one direction and actually moving in the other direction. As he stepped to his right to go through the door, Mr. Rolle moved his

    left arm between his body and Ms. McElrath's, pushed her aside, 3/ and opened the door with his right hand with sufficient force that the door hit the outside wall. Ms. McElrath was startled when Mr. Rolle pushed her, and she took a step back; she and Mr. Rolle pivoted as he moved through the doorway, so that she was facing the patio outside and Mr. Rolle was facing her.

15. While the door was open, and without any further provocation from Mr. Rolle, 4/ Ms. McElrath raised her keys and sprayed a substance into Mr. Rolle's face from a canister on her key ring. The door closed, and Mr. Rolle fell to his knees, holding his eyes. Ms. Jean-Baptiste, who was inside Room 137, saw Ms. McElrath spray the substance into Mr. Rolle's face, and she went to help him to the bathroom to flush out his eyes with water. Ms. McElrath fled upstairs to her classroom.

16. At least five students and one staff member observed this incident.

17. Immediately after the incident, Ms. McElrath and

    
    

    Mr. Rolle were summoned to the principal's office. Ms. McElrath completed a written statement in which she asserted that she had sprayed Mr. Rolle with a fluid she used to clean her dry-erase board. In her statement, Ms. McElrath stated only that she had a heated discussion with Mr. Rolle, that she had felt threatened

    when he said that he would not be responsible for what he might do to her, 5/ and that he had shoved her.

18. Mr. Rolle suffered temporary damage to his eyes and was required to wear dark glasses for several weeks. His eyes were blurry and watery and light-sensitive for about a week, and he had difficulty doing his work. He also had to drop several classes he was taking at Florida International University because he missed several classes as a result of the injury to his eyes.

19. A Conference-for-the-Record was held on May 1, 2000, to discuss with Ms. McElrath the Preliminary Personnel Investigative Report of the incident involving Mr. Rolle, in which it was concluded that the charge that Ms. McElrath assaulted Mr. Rolle was substantiated, and to discuss

    Ms. McElrath's violation of School Board policy and rules, as well as her future employment status with the Miami-Dade County school system. Ms. McElrath was advised at the Conference-for- the-Record that she would be notified of the "recommended action or disciplinary measures to include any of the following: a letter of reprimand, a TADS Category VII prescription for the Professional Responsibilities Component infraction which could impact the annual evaluation decision, suspension or dismissal."

20. At this conference, Ms. McElrath conceded that the substance she had sprayed in Mr. Rolle's face was actually

    pepper spray. She stated that she was seeing a counselor recommended to her by the Employee Assistance Plan. She acknowledged that her actions were precipitated because she perceived that Mr. Rolle was ignoring her and that there was no excuse for her actions toward Mr. Rolle.

21. The first time Ms. McElrath alleged to the School Board that Mr. Rolle had moved his hands to her throat and that she was fearful that he intended to attack her was in a letter dated July 26, 2000, which she wrote "to clarify, explain, and/or respond" to the information contained in the summary of the May 1, 2000, Conference-for-the-Record. In this letter, Ms. McElrath stated that she sprayed Mr. Rolle with pepper spray because she was defending herself; he had shoved her and was bringing his hands up to her throat, and she felt threatened. Ms. McElrath asked that this letter be included as part of her record.

    Summary

    
    

22. It is uncontroverted that Ms. McElrath sprayed

    
    

    Mr. Rolle in the face with pepper spray and that she lied when she asserted in the statement she gave immediately after the incident that the chemical she sprayed in Mr. Rolle's face was a solution she used to clean her dry-erase marker board. The disputed factual issues that are presented for resolution in this case are whether Ms. McElrath conducted herself in her

    employment as a teacher in a manner that failed to reflect credit on herself and the school system; whether Ms. McElrath committed misconduct in office and thereby impaired her effectiveness in the school system; whether Ms. McElrath committed violence in the workplace; and whether Ms. McElrath acted in self-defense when she sprayed Mr. Rolle with pepper spray.

23. Having considered all of the evidence submitted with respect to Ms. McElrath's conduct during the incident involving Mr. Rolle, the undersigned finds that Ms. McElrath was acting in the course of her employment as a teacher and that her conduct certainly did not reflect credit on her. In making this finding, consideration has been given to Ms. McElrath's actions in blocking Mr. Rolle's path as he tried to leave Room 137 and in repeatedly demanding to know why he would not go directly to her classroom, after he had explained that he needed to obtain materials necessary to configure her computer for the Internet, as well as to her spraying Mr. Rolle with pepper spray.

24. The undersigned further finds that Ms. McElrath committed misconduct in office. Ms. McElrath did not value

    Mr. Rolle's worth as an employee of the School Board entitled to make judgments regarding his professional responsibilities or Mr. Rolle's dignity as a person. Furthermore, Ms. McElrath used exceedingly poor professional and personal judgment both in

    spraying Mr. Rolle with pepper spray and in her actions toward Mr. Rolle as he was trying to leave Room 137. The evidence presented by the School Board is not sufficient, however, to establish that Ms. McElrath failed to sustain the highest degree of ethical conduct, that she interfered with Mr. Rolle's exercise of his political and civil rights, or that she used coercion to influence Mr. Rolle's professional judgment.

25. Having considered all of the evidence presented on which findings of fact can be based, the undersigned finds that Ms. McElrath's actions with respect to Mr. Rolle were so serious that they impair her effectiveness in the school system. In making this finding, the undersigned is mindful that, based on the record herein, during her tenure as a teacher in the Miami- Dade County public schools, Ms. McElrath has not been the subject of any other disciplinary action and that she has consistently received "acceptable" annual evaluations, the highest overall rating a teacher in the Miami-Dade County school system may earn. Nonetheless, the lack of control Ms. McElrath exhibited in her behavior towards Mr. Rolle raises serious and disturbing questions regarding her ability to resolve in a reasonable manner those frustrating situations that sometimes occur when one works with busy colleagues, her ability to respond in an appropriate manner to the stresses of classroom

    teaching, and her ability to appreciate the consequences of her actions.

26. Without question, the act of spraying someone in the face with pepper spray is an act of violence that, the evidence herein establishes, took place at Miami Jackson, the public school in which Ms. McElrath worked as a teacher. The greater weight of the evidence is sufficient to establish that Mr. Rolle pushed Ms. McElrath aside as he was moving to open the door to leave Room 137, but Ms. McElrath testified that Mr. Rolle's "shove" did not harm her but merely startled her and did not precipitate her action in spraying Mr. Rolle with the pepper spray. Rather, Ms. McElrath asserts that she took this action in response to Mr. Rolle's moving his hands upward to grab her throat.

27. Having carefully considered all of the evidence on which findings of fact can be based, the undersigned finds that Ms. McElrath did not have a reasonable basis for believing that Mr. Rolle was about to attack and choke her. It is notable in this regard that, as far as can be discerned from the record herein, Ms. McElrath did not, as one would expect, immediately explain her action as self-defense but, rather, waited approximately five months before presenting this justification to the School Board. The testimony of Andrea Zuniga, the only witness who corroborated Ms. McElrath's claim that Mr. Rolle was

    moving his hands up to grab her throat, has been considered and found not sufficiently persuasive to outweigh the testimony of Ms. Jean-Baptiste, Diane McKnight, and Mercedes Thompson that they saw no such action by Mr. Rolle.

    CONCLUSIONS OF LAW

    
    

28. 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 120.57(1), Florida Statutes (2000).

29. Because this case is a proceeding to terminate Ms. McElrath's employment with the School Board and does not

    involve the loss of a license or certification, the School Board has the burden of proving the allegations in the Second Amended Notice of Specific Charges by a preponderance of the evidence.

    McNeill v. Pinellas County School Board, 678 So. 2d 476 (Fla. 2d DCA 1996); Allen v. School Board of Dade County, 571 So. 2d 568,

    569 (Fla. 3d DCA 1990); Dileo v. School Board of Lake County,

    
    

    569 So. 2d 883 (Fla. 3d DCA 1990).

    
    

30. The "preponderance of the evidence" standard "requires proof by 'the greater weight of the evidence' . . . or evidence that 'more likely than not' tends to prove a certain proposition." Chancellor Media Whiteco Outdoor v. Department of Transportation, State of Florida, 26 Fla. L. Weekly D627 (Fla. 5th DCA Mar. 2, 2001)(citations omitted).

31. Section 230.23(5), Florida Statutes (1999), provides that a school board has the power to suspend and dismiss employees as follows:

    (f) Suspension and dismissal and return to annual status.--Suspend, dismiss, or return to annual contract members of the instructional staff and other school employees; however, no administrative assistant, supervisor, principal, teacher, or other member of the instructional staff may be discharged, removed or returned to annual contract except as provided in chapter 231.

    
    

32. Prior to her suspension, Ms. McElrath was employed with the School Board under a professional service contract. Section 231.36, Florida Statutes (1999), provides in pertinent part:

    (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, the following instances, as defined by rule of the State Board of Education: 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), may be suspended or dismissed at any time during the term of the contract for just cause as provided in paragraph (1)(a). [6/]

    
    

33. In Count I of the Second Amended Notice of Specific Charges, the School Board has charged Ms. McElrath with violating School Board Rule 6Gx13-4A-1.21, Responsibilities and

    Duties, by engaging in conduct unbecoming a School Board employee. Rule 6Gx13-4A-1.21 provides in pertinent part:

    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.

       
       

34. In Count II of the Second Amended Notice of Specific Charges, the School Board has charged Ms. McElrath with misconduct in office, which is defined in Rule 6B-4.009, 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.

    
    

35. The School Board's charge that Ms. McElrath committed misconduct in office is predicated on allegations that she violated Rule 6B-1.001(1),(2) and/or (3), Florida Administrative Code, and Rule 6B-1.006(5)(c) and/or (f), Florida Administrative Code.

    1. Rule 6B-1.001, Florida Administrative Code, the Code of Ethics of the Education Profession, provides:

       1. The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, and the nurture of democratic citizenship. Essential to the achievement of these standards are the freedom to learn and to teach and the guarantee of equal opportunity for all.

       2. 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.

       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.

          
          

    2. Rule 6B-1.006, Florida Administrative Code, provides in pertinent part:

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

       2. Violation of any of these principles shall subject the individual to revocation

    or suspension of the individual educator's certificate, or the other penalties as provided by law.

    
    

    * * *

    
    

    (5) Obligation to the profession of education requires that the individual:

    
    

    * * *

    
    

    (c) Shall not interfere with a colleague's exercise of political or civil rights and responsibilities.

    
    

    * * *

    
    

    (f) Shall not use coercive means or promise special treatment to influence professional judgments of colleagues.

    
    

36. In Count III of the Second Amended Notice of Specific Charges, the School Board has charged Ms. McElrath with violating Rule 6Gx13-4-1.08, which provides:

    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 it 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.

    
    

37. "Whether a particular action constitutes a violation of a rule . . . 'is a factual question to be decided in the context of the alleged violation.'" McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995)(quoting Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995)). See also Holmes v.

    Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985)(Whether there was a deviation from the required standard of conduct is not a conclusion of law, it is an ultimate finding of fact within the fact-finding discretion of the hearing officer.)

38. Based on the findings of fact herein, the School Board has satisfied its burden of proving that Ms. McElrath committed misconduct in office and that she violated School Board

Rules 6Gx13-4.1.08 and 6Gx13-4A-1.21(I).

RECOMMENDATION

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

Miami-Dade County, Florida, suspending Mary Jane McElrath without pay be sustained and that her employment with the School Board of Miami-Dade County, Florida, be terminated.

DONE AND ENTERED this 3rd day of August, 2001, 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 3rd day of August, 2001.

ENDNOTES

1/ On April 26, 2001, Leslie A. Meek, Esquire, was substituted as counsel for the Respondent.

2/ In cases involving the termination of a teacher, the School Board is treated as the petitioner and the Notice of Specific Charges is the charging document in an administrative proceeding. Accordingly, a Notice of Specific Charges is analogous to a "petition." Cf. Rule 28-107.004(1) and (4), Florida Administrative Code (An agency cannot revoke a license without serving an administrative complaint on the licensee; the agency complaint shall be considered the petition.)

3/ In making this finding of fact, the totality of the evidence on this point has been carefully considered. Mr. Rolle asserted in his testimony that he remained calm throughout the entire incident with Ms. McElrath and that he did not touch her, although he did testify that he placed his left arm between them as he reached with his right hand to open the door.

Ms. McElrath testified that Mr. Rolle shoved her as he was

moving to open the door, which startled her, but she also testified that Mr. Rolle did not appear aggressive. Ms. Jean- Baptiste was working at the computer with her back to the room, but she observed portions of the encounter between Mr. Rolle and Ms. McElrath. Ms. Jean-Baptiste saw Mr. Rolle move his left arm between his body and Ms. McElrath's as he moved with his right hand to open the door.

4/ In making this finding of fact, the totality of the evidence, including the statement made by Ms. McElrath immediately after the incident, has been carefully considered. Ms. McElrath testified at the hearing that, as they moved through the doorway, Mr. Rolle raised his hands toward her throat. She asserted that she thought he was going to choke her and, because she felt threatened and was frightened, she sprayed Mr. Rolle with the substance in the canister on her key ring.

Ms. Jean-Baptiste testified that she did not see Mr. Rolle raise his hands to Ms. McElrath's throat but that, when she heard the door open and turned around, she saw Ms. McElrath extend her arm and spray Mr. Rolle with the substance. Two students who observed the incident from about 25 feet away saw Mr. Rolle and Ms. McElrath in the open doorway as Ms. McElrath raised her arm to spray Mr. Rolle, and neither saw Mr. Rolle raise his arms to Ms. McElrath's throat. A student who observed the incident from the second floor, across an open patio, saw Mr. Rolle and

Ms. McElrath in the open door and testified that she saw

Mr. Rolle grab Ms. McElrath by the throat. It should be noted with respect to this testimony that Ms. McElrath has never asserted that Mr. Rolle actually grabbed her throat.

5/ There is no evidence in the record except for this statements and Ms. McElrath's testimony to establish that Mr. Rolle, in fact, made this statement to Ms. McElrath. This evidence is not sufficient to establish that Mr. Rolle more likely than not made this statement.

6/ 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."

COPIES FURNISHED:

Madelyn P. Schere, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400

Miami, Florida 33132

Lisa N. Pearson, Esquire United Teachers of Dade 2929 Southwest Third Avenue Miami, Florida 33129

Dr. Roger Cuevas, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132

Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08

Tallahassee, Florida 32399-0400

James A. Robinson, General Counsel Department of Education

The Capitol, Suite 1701 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: 00-002665

Orders for Case No: 00-002665