STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MIAMI-DADE COUNTY SCHOOL BOARD, )
)
Petitioner, )
)
vs. ) Case No. 01-4247
)
HENRY T. WOJCICKI, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was conducted in this case pursuant to Section 120.57(1), Florida Statutes, on April 11 and 12, 2002, by video teleconference at sites in Miami and Tallahassee, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative
Hearings.
APPEARANCES
For Petitioner: Madelyn P. Schere, Esquire
Miami-Dade County School Board
1450 Northeast 2nd Avenue, Suite 400
Miami, Florida 33132
For Respondent: Leslie Holland, Esquire
Law Offices of Leslie Holland
370 Minorca Avenue, Suite 11 Coral Gables, Florida 33134
STATEMENT OF THE ISSUES
Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges, as amended.
If so, what action should be taken against Respondent.
PRELIMINARY STATEMENT
On October 24, 2001, the School Board of Miami-Dade County (School Board) suspended Respondent from his position as a professional service contract teacher and initiated a dismissal proceeding against him. By letter from his attorney, Respondent requested "a hearing before an administrative law judge." On October 30, 2001, the matter was referred to the Division of Administrative Hearings (Division) for the assignment of a Division Administrative Law Judge to conduct the hearing Respondent had requested. The case was subsequently assigned to the undersigned, who set the case for final hearing for February 11 and 12, 2002.
On November 15, 2001, the School Board served on Respondent (by United States Mail) its Notice of Specific Charges, paragraphs 1 through 17 of which read as follows:
The matter is before the Division of Administrative Hearings of the State of Florida, pursuant to Section 120 et seq., Fla. Stat.
At all times material hereto, Respondent Henry Wojcicki was employed by Petitioner as a teacher within the school district of Miami-Dade County, Florida, assigned to
Miami Central Senior High School (Central), American Senior High School (American) and/or other work sites.
Respondent was first employed by Petitioner in December 1994. He is employed pursuant to a professional service contract.
At all times material hereto, Petitioner was 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, pursuant to Article IX, Constitution of the State of Florida, and § 230.03, Fla. Stat.
On or about November 11, 2000, Respondent used improper force and discipline on a student. He was warned by his principal not to do this again.[1]
On or about March 1, 2001, Respondent pushed a student.
On or about March 15, 2001, a Conference-for-the-Record (CFR) was held with Respondent to discuss the investigative report of the incident referenced in paragraph 6 above. The participants also discussed the Code of Ethics and Principles of Professional Conduct of the Education Profession in Florida, the School Board rules on corporal punishment and employee conduct, Respondent's record, and Respondent's future employment status with Petitioner. Respondent was directed to refrain from using physical means to enforce student discipline, to adhere to the Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida, to adhere to the School Board rules concerning corporal punishment and appropriate employee conduct, and to refrain from leaving students unsupervised. Respondent was warned that failure to comply with these directives and recurrences of
this type of conduct would result in further disciplinary action which would adversely affect his future employment status.
On or about May 2, 2001, Respondent pushed a student and/or hit a student's hand, escalating into a confrontation.
On or about June 7, 2001, Respondent pushed a student out of a doorway and closed the door forcefully.
On or about June 11, 2001, a CFR was held with Respondent to address the conduct referenced in paragraph 8 above, the Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida, School Board rules on corporal punishment and employee conduct, Respondent's record, and his future employment status with Petitioner. Respondent was directed to refrain from using physical means to enforce student discipline, to adhere to the Code of Ethics, the Principles of Professional Conduct of the Education Profession in Florida, and the School Board rules on corporal punishment and employee conduct. Respondent was warned that failure to comply with these directives or recurrences of this conduct would result in further disciplinary action which would affect his employment status.
On or about June 11, 2001, Respondent was placed on prescription for professional responsibilities.
On or about June 11, 2001, Respondent received an unacceptable annual evaluation for the 2000/01 school year.
On or about June 11, 2001, Respondent's supervisor referred him to Petitioner's Employee Assistance Program (EAP) because of altercations with students and poor judgment.
On or about August 24, 2001, a CFR was held with Respondent to address the conduct referenced in paragraph 9 above, non- compliance with School Board policy and rules, non-compliance with site directives, violation of the Code of Ethics and professional responsibilities, Respondent's record, and his future employment with Petitioner.
On or about August 29, 2001, a CFR was held with Respondent to address his performance, non-compliance with School Board policy and rules, violation of the Code of Ethics and Professional Responsibilities and his future employment status. Respondent was given directives to refrain form touching, grabbing, hitting, or dragging any student for any reason inter alia.
On or about September 25, 2001, a meeting was held with Respondent to address the pending dismissal action to be taken by the School Board at its meeting on October 24, 2001.
Petitioner, at its regularly scheduled meeting of October 24, 2001, took action to suspend Respondent without pay and to initiate dismissal proceedings against him. This action was taken in accordance with §§ 230.23(5)(f) and 231.36(6)(a), Fla. Stat.
The Notice of Specific Charges contained five counts. They were set forth in paragraphs 18 through 30, which read as follows:
COUNT I
CONDUCT UNBECOMING A SCHOOL BOARD EMPLOYEE
Petitioner repeats each and every allegation contained in paragraphs 1 through 17, above, with the same force and effect as if fully set forth herein.
Such conduct by Respondent constitutes conduct unbecoming a School Board employee, in violation of School Board Rule 6Gx13-4A- 1.21, and comprises just cause for termination of employment pursuant to §§ 231.36(1)(a) and (6)(a), Fla. Stat.
COUNT II
VIOLATION OF THE CORPORAL PUNISHMENT RULE
Petitioner repeats each and every allegation contained in paragraphs 1 through 17, above, with the same force and effect as if fully set forth herein.
Such conduct by Respondent violates School Board Rule 6Gx13-5D-1.07, which prohibits corporal punishment and comprises just cause for termination of employment pursuant to §§ 231.36(1)(a) and (6)(a), Fla. Stat.
COUNT III MISCONDUCT IN OFFICE
Petitioner repeats each and every allegation contained in paragraphs 1 through 17, above, with the same force and effect as if fully set forth herein.
Respondent's conduct is in violation of Rules 6B-1.001(1), (2), and/or (3), F.A.C., and 6B-1.006(3)(a), (e) and/or (f), F.A.C., which is so serious as to impair Respondent's effectiveness in the school system.
Such acts by Respondent constitute misconduct in office, as defined by Rule 6B- 4.009(3), F.A.C., a ground warranting dismissal pursuant to §§ 231.36(1)(a) and (6)(a), Fla. Stat.
COUNT IV
GROSS INSUBORDINATION/WILLFUL NEGLECT OF DUTY
Petitioner repeats each and every allegation contained in paragraphs 1 through 17, above, with the same force and effect as if fully set forth herein.
Respondent's conduct comprises a constant or continuing intentional refusal to obey a reasonable, direct order given by an administrator with authority to give such directives.
127. Such acts by Respondent constitute gross insubordination and/or willful neglect of duty as defined by Rule 6B-4.009(4), F.A.C., a ground warranting dismissal pursuant to §§ 231.36(1)(a) and (6)(a), Fla. Stat.
COUNT V INCOMPETENCY
Petitioner repeats each and every allegation contained in paragraphs 1 through 17, above, with the same force and effect as if fully set forth herein.
Respondent has repeatedly failed to comply with School Board rules and contract provisions.
Such failures constitute[] incompetency, as defined in Rule 6B- 4.009(1)(a)(1), F.A.C., a ground warranting dismissal pursuant to §§ 231.36(1)(a) and (6)(a), Fla. Stat.
On January 23, 2002, Respondent filed a Motion to Continue Final Hearing in the instant case. In his motion, Respondent contended that a continuance of the final hearing was necessary so that that this case could be consolidated with another case recently referred to the Division of Administrative Hearings,
DOAH Case No. 02-0311PL, which, according to Respondent, involved allegations made against Respondent by the Commissioner of Education that were "identical" to the allegations made against Respondent by the School Board. On January 24, 2002, Petitioner filed a Response in Opposition to Respondent's Motion to Continue Final Hearing. A hearing on Respondent's motion was held by telephone conference call on January 24, 2002. By Order issued January 25, 2002, the motion was denied.
On January 31, 2002, Respondent filed a Renewed Motion to Continue Final Hearing and for Consolidation of this Matter with a Related Case (DOAH Case No. 02-0311PL), in which he indicated, among other things, that he would "waive back pay for a reasonable period if his motion [were] granted." On February 1, 2002, the School Board filed a written response opposing the renewed motion. A hearing on the renewed motion was held by telephone conference call on February 4, 2002. On February 6, 2002, the undersigned issued an Order canceling the final hearing in the instant case, consolidating the instant case with DOAH Case No. 02-0311PL, and scheduling the final hearing in these consolidated cases for April 11 and 12, 2002.
On April 9, 2002, the Commissioner of Education and Respondent filed a Joint Motion to Cancel Hearing and to Relinquish Jurisdiction in DOAH Case No. 02-0311PL. On
April 10, 2002, the undersigned issued an Order granting the motion and closing the file in DOAH Case No. 02-0311PL.
As noted above, the final hearing in the instant case was held on April 11 and 12, 2002.
At the outset of the hearing, the School Board requested, and was granted, without objection, leave to amend paragraph 6 of the Notice of Specific Charges to read as follows: "On or about February 28, 2001, Respondent pushed a student."
Twelve witnesses testified at the final hearing: O. A., Deanna Lipschutz, T. S., Nanci Clayton, R. D., Alberto Rodriguez, T. J. Martin, Dr. Thomasina O'Donnell, A. D., Respondent, Jill Brooker, and Natalie Roca. In addition to the testimony of these 12 witnesses, 27 exhibits (Petitioner's Exhibits 1 through 17 and Respondent's Exhibits 1, 2, 5, 7 through 10, and 12 through 14) were offered and received into evidence.
At the close of the evidentiary portion of the final hearing on April 12, 2002, the parties were advised of their right to file proposed recommended orders and a deadline was established (the later of June 7, 2002, or 30 days from the date of the Division's receipt of the transcript of the final hearing) for the filing of proposed recommended orders.
The Division received the Transcript of the final hearing (consisting of four volumes) on June 11, 2002.
On July 11, 2002, the parties filed a motion jointly requesting that they be given additional time, until August 7, 2002, to file their proposed recommended orders in the instant case. A hearing on the motion was held by telephone conference call on July 12, 2002. On that same day, the undersigned issued an Order granting the motion.
On August 7, 2002, the School Board and Respondent each filed a Proposed Recommended Order. These Proposed Recommended Orders have been carefully considered by the undersigned.
FINDINGS OF FACT
Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:
The School Board is responsible for the operation, control, and supervision of all public schools (grades K through
12) in Miami-Dade County, Florida.
Among these schools are Miami Central Senior High School (Central) and American Senior High School (American).
Alberto Rodriguez is now, and has been for the past six years, the principal at American.
As American's principal, Mr. Rodriguez has supervisory authority over the School Board employees assigned to work at the school.
These employees are expected to conduct themselves in accordance with School Board Rules, including School Board Rules 6Gx13-4A-1.21, 6Gx13-5D-1.07, and 6Gx13-6A-1.331
At all times material to the instant case, School Board Rule 6Gx13-4A-1.21 provided, in pertinent part, as follows:
Permanent Personnel
RESPONSIBILITIES AND DUTIES
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 presence of students is expressly prohibited. . . .
At all times material to the instant case, School Board Rule 6Gx13-5D-1.07 provided 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 of 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.[2]
Respondent has been employed as a teacher by the School Board since 1994.
He has a professional service contract of employment with School Board.
From 1994 through 2000, Respondent was assigned to Central, where he taught emotionally disturbed and severely emotionally disturbed students. He had an unblemished disciplinary and performance record at Central.
Respondent was reassigned from Central to American, where he remained until August of 2001, when he was "placed in an alternative work assignment at Region I" pending the disposition of charges against him.
At American, Respondent taught emotionally handicapped (EH) students. Among the students in his classes were O. A.,
V. S., C. H., T. S., R. D., and A. D.
At all times material to the instant case, Nanci Clayton also taught EH students at American.3 She had some of the same students in her classes that Respondent had in his.
At the beginning of the 2000-2001 school year, Ms.
Clayton and Respondent had paraprofessionals in their classrooms. The paraprofessionals, however, were removed from their classrooms after the first grading period.
Ms. Clayton's and Respondent's classrooms were located in one "very large [room] divided in half [by a makeshift partial partition4] to make two classrooms."5 This partial partition consisted of bookcases, a blackboard, filing cabinets, and, at times, a table.
To enter and exit Respondent's classroom, it was necessary to pass through Ms. Clayton's classroom, where the door to the hallway was located. There was no direct access to the hallway from Respondent's classroom.
Ms. Clayton's desk was located immediately to the left of the door as one walked into her classroom from the hallway. Students leaving Respondent's classroom had to pass by Ms. Clayton's desk to get to the hallway.
The "divided room" that Ms. Clayton and Respondent shared had a "phone line," but no School Board-supplied telephone. Ms. Clayton and Respondent had to supply their own telephone. "Sometimes [the telephone] would work, sometimes it wouldn't work."
There was no "emergency" or "call" button in the room.
There were occasions when Ms. Clayton and Respondent "conduct[ed] [their] lessons simultaneously in this divided room."6
Things said in one of the classrooms could, at times, be heard in the other classroom.
It is not uncommon for EH students to have mood swings, to become easily frustrated and angered, to be verbally and physically aggressive, to engage in off-task behavior, and to defy authority.
Controlling the behavior of these students in the classroom presents a special challenge.
As EH teachers at American, Ms. Clayton and Respondent were faced with this challenge. It was their responsibility to deal with the behavioral problems exhibited by their students during the course of the school day while the students were under their supervision.
American had a Behavior Management Teacher, David Kucharsky, to assist the school's EH teachers in dealing with serious or chronic behavioral problems.
There were far fewer instances of disruptive student behavior in Ms. Clayton's classroom than in Respondent's.
While in Respondent's class, some students would do such things as throw books and turn the lights off. Ms.
Clayton, however, would not "have the same kind of problems" with these students when she was teaching them.
Ms. Clayton "made recommendations" to Respondent to help him better control the behavior of students in his classes.
As a teacher at American, Respondent was a member of a collective bargaining unit represented by the United Teachers of Dade (UTD) and covered by a collective bargaining agreement between the School Board and UTD, effective July 1, 1999, through June 20, 2002 (UTD Contract).
Article V of the UTD Contract addressed the subject of "employer rights."
Section 1 of Article V provided, in part, that the School Board had the exclusive right to suspend, dismiss or terminate employees "for just cause."
Article XXI of the UTD Contract addressed the subject of "employee rights and due process."
Section 2 of Article XXI provided, in part, that "[d]ismissals and suspensions shall be effected in accordance with applicable Florida statutes, including the Administrative Procedures Act (APA) "
Article VIII of the UTD Contract addressed the subject of a "safe learning environment."
"Student discipline" was discussed in Section 1 of Article VIII, which provided, in part, as follows:
Section 1. Student Discipline
A safe and orderly learning environment is a major priority of the parties. Such an environment requires that disruptive behavior be dealt with safely, fairly, consistently, and in a manner which incorporates progressive disciplinary measures specified in the Code of Student Conduct.
Rules governing discipline are set forth in the Code of Student Conduct, School Board Rules, and Procedures for Promoting and Maintaining a Safe Learning Environment and, by reference, are made a part of this Contract.
* * *
D. The parties recognize the potential for difficult circumstances and problems related to the use of corporal punishment. Accordingly, the parties agree that such punishment shall be prohibited as a disciplinary option, and further agree to act affirmatively in continuing to identify and implement more effective alternatives for dealing with student behavior. The involvement of school-site personnel in developing such alternatives is critical to their potential for success.
The teacher shall have the authority to remove a seriously disruptive student from the classroom. In such cases, the principal or designee shall be notified immediately and the teacher shall be entitled to receive prior to or upon the student's return to the classroom, a copy of the Student Case Management Form (SCAM) describing corrective action(s) taken. . . .
"Physical restraint" and its use, in certain circumstances, on students receiving exceptional student
education services was discussed in Section 3 of Article VIII, which provided as follows:
Section 3. Physical Restraint
There are instances where exceptional students exhibit behaviors that are disruptive to the learning environment and pose a threat to the safety of persons or property.
Some exceptional students because of the nature of their disability, may, on occasion, experience impaired impulse control of such severity that the use of physical restraint is necessary to prevent such students from inflicting harm to self and/others, or from causing damage to property.
The purpose of physical restraint is to prevent injury to persons or destruction of property. It is not to be used to "teach the child a lesson" or as punishment.
For students who exhibit such behaviors, the use of physical restraint procedures shall be discussed as part of the Individualized Education Program (IEP) development and review process. A recommendation for the use of Board-approved physical restraint procedures must be made by the Multi-Disciplinary Team (M-Team) and shall be documented on the student's IEP form before the use of such procedures may be authorized. When parents or surrogates are not present at the IEP meeting, written notification to them regarding the use of physical restraint will be provided.
Strategies for the prevention of aggressive behavior shall be utilized on an ongoing basis. However, when an explosive event occurs without warning and is of such degree that there is imminent risk to persons or property, the use of physical restraint
technique is authorized for such circumstances.
Subject to available funding, the Board shall provide for the training of instructional and support staff in physical restraint techniques, as well as strategies for prevention of aggressive behavior. Training manuals developed for this purpose are, by reference, incorporated and made a part of this Agreement.
Physical restraint techniques provided in training programs approved by the Board are authorized and, when utilized in accordance with the training provided and these guidelines, shall not constitute grounds for disciplinary action. If a teacher is not trained in the use of approved physical restraint procedures and is faced with an emergency, the teacher is authorized to employ the moderate use of physical force or physical contact as may be necessary to maintain discipline or to enforce Board Rules 6Gx13-5D-1.07 and 1.08.[7] The appropriate use of these procedures shall not constitute a violation of the corporal punishment policy (Board Rule 6Gx13-5D-1.07).
Physical restraint refers to the use of physical intervention techniques designed to restrict the movement of a student in an effort to de-escalate aggressive behavior. In order to promote a safe learning environment, the district has authorized the implementation of specific physical restraint procedures to be used in Exceptional Student Education programs when a student's IEP documents the potential need for their use. These procedures include, but are not limited to, holding and escape techniques which, when implemented, prevent injury to students and staff or prevent serious damage to property. Specific physical restraint procedures may also be approved for use with other specific student
populations, upon mutual agreement of the parties and would be reviewed on an annual basis.
The use of physical restraint must be documented as part of the SCM system. Instructional or support staff who utilize physical restraint techniques shall complete the SCM Student Services Form to record student case information regarding each incident. Directions shall be provided to instructional and support staff to assist them in completing the appropriate form.
At all times material to the instant case, the Individualized Education Program for each of the students in Respondent's classes "document[ed] the potential need for the[] use" of the School Board-approved "physical restraint techniques" referenced in Section 3 of Article VIII of the UTD Contract.
Respondent received training in 1994 in the use of these techniques.
At another in-service training session that he attended when he was teaching at Central, the head of the school's program for emotionally disturbed and severely emotionally disturbed students spoke about the "preventative strategies" of "planned ignoring" and "proximity control" and gave to the attendees, including Respondent, a handout, which stated the following about these "preventative strategies":
Planned Ignoring
Inappropriate behavior is ignored and not reinforced by staff by not reacting or responding to specific disruptive activity of a student in anticipation that the inappropriate behavior will extinguish or subside without further [sic]. The second part of this intervention is to reinforce positively acceptable behavior in anticipation that this behavior will occur more frequently.
Proximity Control
This intervention takes advantage of the positive effect of using a nonverbal communication such as gestures, looks, or body postures to decrease inappropriate classroom behavior. As an additional measure, physical contact in the form of a hand on the student's shoulder or a squeeze of an arm, can be very supportive to the student, yet convey the message that certain behaviors will not be tolerated.
Respondent employed these "preventative strategies" at Central and was never disciplined for doing so.
At American, Respondent was involved in several incidents in which he used physical force against students.
On February 28, 2001, Respondent was at his desk teaching a class when one of the students in the class, V. S., got out of his seat and started "knocking on the T.V." that was in the classroom.
V. S. was a "very large student" who, on a previous occasion, had "threatened to take [Respondent's] head and push it
through a plate-glass window" and, on other occasions, had told Respondent:
We are going to get you white man. We are going to make you quit. We are going to get you fired.[8]
Respondent told V. S. to take his seat. V. S. refused.
Instead, he sat down on Respondent's desk and "leaned over toward [Respondent]," positioning his face "about a foot" from Respondent's.
V. S. was "glaring down at [Respondent]" and had a "tight-lipped grin" on his face. This made Respondent feel "a little edgy."
After directing V. S. to "get off [the] desk" and receiving "no response," Respondent (rather than getting up from his seat and walking away from V. S.) "reached out and gave [V. S.'s] arm a shake" in order "to get [V. S.'s] attention."9
Respondent obtained the result he desired. V. S. got off the desk; but he did not do so quietly. V. S. yelled profanities at Respondent and threatened to "kill" Respondent if Respondent ever touched him again.
Prior to Respondent shaking his arm, V. S. had not made, during the incident, any verbal threats against Respondent.
The incident was reported to the administration and the matter was investigated.
Respondent, V. S., and another student, C. H., who witnessed the incident, gave written statements that Mr. Rodriguez reviewed.
On March 15, 2001, after reviewing the statements, Mr.
Rodriguez held a Conference-for-the-Record with Respondent. Mr. Rodriguez subsequently prepared (on March 21, 2001) and furnished to Respondent (on that same date) a memorandum, in which he summarized what had transpired at the conference. The memorandum read as follows:
The following is a summary of the conference-for-the-record on Thursday, March 15, 2001, at 2:00 p.m. in this administrator's office. Present at the conference were Mark Soffian, assistant principal; Karen Robinson, assistant principal; Jimmy Jones, UTD Representative; yourself and this administrator.
The purpose of the conference was to address the following:
-Miami-Dade County School Board Police Case #F-09343.
-Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida.
-School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited).
-School Board Rule 6Gx13-4A-1.21 (Employee Conduct).
-Review of the record.
-Future employment with Miami-Dade County Public Schools.
This administrator began the conference by reviewing Case #F-09343. This administrator read your statement and the statements of the students alleging battery on a student.
This administrator asked you if you had any comments in reference to the incident. You stated that you had to write up everyone in class, because students were turning off the lights and throwing books in the dark despite repeated warnings. You characterized this student behavior as "organized disruption." You further stated that another student was tormenting a classmate who shrieked out in pain, ran out of class and then was dragged back in by the same student. You described that another student was banging on the television and you had to write him up. You said you did not push [V. S.] (victim-I.D. #427561) but rather he leaped off the desk, shouted a tirade of curses at you and then left class. You indicated that you did not push because you were unable to move an 18 year old who is 260 pounds.[10]
This administrator asked if you ever left your class unsupervised. You stated, "Yes, from time to time." This administrator cautioned you that one of your professional responsibilities is never to leave your students unsupervised. Additionally, the fact that you described the numerous classroom discipline problems, it is of the utmost importance that your students remain supervised at all times.
This administrator reviewed with you the Code of Ethics and Principles
of . . . Professional Conduct of the Education Profession in Florida. This administrator specified certain areas of the Code of Ethics in which you were in violation. This administrator asked you to respond and you nodded your head in the affirmative.
This administrator reviewed with you Miami- Dade County School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited). You were asked if you understood and you responded "Yes."
This administrator reviewed with you Miami- Dade County School Board Rule 6Gx13-4A-1.21 (Employee Conduct). This administrator reminded you that you are expected to conduct yourself, both in your employment and in the community, in a manner that will reflect credit upon yourself and the school system. You were asked to respond and you stated "I understand."
This administrator conducted a review of the record. There was another incident involving the use of improper force and disciplinary means against a student that was cited on November 11, 2000. The case (F-03631) was never pursued; however, this administrator cautioned you that these past episodes demonstrate use of poor judgment on your part.
This administrator informed you that repeated offenses would result in further disciplinary actions that will negatively impact your future employment with Miami- Dade County Public Schools. This administrator then asked if you had any further comments or statements for the record.
You requested that a handout on "preventative strategies" and Florida Statute Chapter 232.27[11] be included as part of the written summary. You further stated that you didn't claim to be perfect and there was room for improvement. You stated that teaching six periods made it difficult to do the job effectively. This administrator asked if you wanted to give up the sixth period supplement since if was your choice to take on that added teaching responsibility for remuneration. You stated that you did not want to give up the money. This administrator advised that you cannot use the sixth period day as an excuse, and if it is a hardship where you are unable to perform your prescribed duties th[e]n you
need to let this administrator know. Additionally, this administrator informed you that writing referrals to exclude seven or eight students in your Exceptional Education class was unacceptable.
This administrator recommended for you to acquire additional training in dealing with Emotional Handicapped students. Seeking alternative means of discipline in lieu of suspension and exclusion from class will be necessary. This administrator provided you with Miami-Dade County School Board Manual of Procedures for Special Programs to assist you in managing your classroom and providing appropriate strategies in handling Exceptional Education students.[12]
This administrator issued you the following directives:
-Refrain from using any physical means to enforce student discipline.
-Adhere to Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida.
-Adhere to School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited).
-Adhere to School Board Rule 6Gx13-4A-1.21 (Employee Conduct).
-Refrain from leaving students in the classroom unsupervised.
In closing, this administrator informed you that failure to comply with these directives and recurrences of this type will result in further disciplinary action which will adversely affect your future employment status. This administrator stated that he would be available to provide[] you any assistance that you may require.
In conclusion, you are apprised of your right to append, clarify, or explain any information recorded in this conference by this summary.
Attached to the memorandum were copies of the Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida (which are found in Rules 6B-1.001 and 6B- 1.006, Florida Administrative Code), School Board Rule 6Gx13-5D- 1.07, School Board Rule 6Gx13-4A-1.21, the handout on "preventative strategies" that Respondent had received at Central, and the cover page, as well as pages 119 and 121, of the Miami-Dade County School Board Manual of Procedures for Special Programs referenced in the memorandum. Page 121 of the Miami-Dade County School Board Manual of Procedures for Special Programs manual read as follows:
Some exceptional students because of the nature of the disability, may on occasion experience impaired impulse control of such severity that the use of physical restraint is necessary to prevent such students from inflicting harm to self and/or others, or from causing damage to property.
The purpose of physical restraint is to prevent injury to persons or destruction of property. It is not to be used to "teach the child a lesson" or as punishment.
For students who exhibit such behaviors, the use of physical restraint procedures shall be discussed as part of the IEP development and review process. A recommendation for the use of Board-approved physical restraint procedures must be made by the Multidisciplinary Team (M-Team) and shall be documented on the student's IEP form before the use of such procedures may be authorized. When parents or surrogates are not present at the IEP meeting, written
notification to them regarding the use of physical restraint will be provided.
Strategies for the prevention of aggressive behavior shall be utilized on an ongoing basis. However, when an explosive event occurs without warning and is of such degree that there is imminent risk of persons or property, the use of physical restraint techniques is authorized for such circumstances.
The School Board shall provide for the training of the appropriate instructional and support staff in physical restraint techniques, as well as strategies for the prevention of aggressive behavior. Training manuals developed for this purpose are available at school sites.
Physical restraint techniques provided in training programs approved by the Board are authorized and, when utilized in accordance with the training provided, these guidelines shall not constitute grounds for disciplinary action. If a teacher is not trained in the use of approved physical restraint procedures and is faced with an emergency, the teacher is authorized to employ the moderate use of physical force or physical contact as may be necessary to maintain discipline or to enforce School Board Rules 6Gx13-5D-1.07 and 1.08. The appropriate use of these procedures[13]
On May 2, 2001, Respondent again used non-approved "physical means to enforce student discipline," notwithstanding the reasonable directive that he had been given by Mr. Rodriguez at the March 15, 2001, Conference-for-the-Record that he "refrain" from engaging in such conduct.
That day, students in Respondent's third period class, including T. S., R. D., and O. A., were scheduled to take the Scholastic Reading Inventory Test (SRI).
The SRI is a standardized test designed to measure students' reading skills. The results of the test are "used to guide classroom instruction, so it is considered [to be a] low- stakes" test.
Respondent had received in-service training, prior to May 2, 2001, on how to administer the SRI. It was emphasized during the training that, for the SRI "to be an effective test, [it had to] be protected from [pre-test administration] dissemination" and that it was important for teachers administering the test to make sure their students returned all test materials "at the end of the test period" and did not leave the test site with these materials. At the training, Respondent was given a document which contained standards for "test administration and test security." These standards provided, in part, as follows:
STANDARD: PROFESSIONAL OBLIGATIONS IN THE IMPLEMENTATION OF THE TESTING PROGRAM AT THE SCHOOL LEVEL
. . . . The test administrator is responsible for directing and conducting the testing session(s) as specified in the administration manual or program guide, strictly adhering to test directions, monitoring students during testing, and
maintaining the security of test materials assigned to him/her. . . .
STANDARD: TEST SECURITY PROCEDURES FOR THE DISTRIBUTION AND RETURN OF TEST MATERIALS
Each principal or designee is responsible for the receipt, inventory, secure storage, distribution, collection, and return of all test booklets and test-related material assigned to that school, according to the directions and instructions specified in the administration manuals or program guides.
The principal or designee must notify the Division of Student Assessment and Educational Testing immediately if any discrepancies are noted in the counts, or if any materials are missing.
The principal or designee must advise all teachers of the rules relating to test security and of the importance of complete adherence to them. Adherence to these test security procedures for the distribution and return of test materials, before, during, and after testing will ensure that:
students do not have access to any of the material prior to the actual exam time or following it; professional staff have access to the test booklets, test folders, questions, and/or reading passages only at the time necessary for administration purposes; test booklets and test materials are returned to the test chairperson at the end of each testing session; and nothing has occurred in the school to allow unauthorized access to any of the test materials at any time. . . .
STANDARD: MAINTAINING STANDARDIZATION AND TEST SECURITY DURING TEST ADMINISTRATION
. . . . Students must have access to test booklets, test folders (i.e., test questions) ONLY during the actual administration of the test. Test
materials must be secured at all times.
Materials must be handed directly to and collected from each student one at a time. If a student needs to leave the test room, his/her materials must be collected and held upon the student's return[;] the test administrator must ensure that the student receives only his/her own test materials.
Test administrators and proctors must actively monitor students during the entire testing period by walking around the room, to ensure compliance with test directions and to prevent cheating. Any irregularities or problems with the test administration must be promptly reported to the test chairperson, the school-site administrator, and district staff. . . .
Test administrators, proctors, and any other school or district staff involved in test administration are required to adhere to guidelines laid out in the Florida Test Security Statute, Section 228.301[14] and the FDOE State Board of Education Administration Rule 6A-10.042, Maintenance of Test Security,[15] as well as district policy and board rule regarding test security.
Violations of test security provisions shall be subject to penalties as provided in statute and FDOE State Board of Education Administrative Rules. . . .
After Respondent handed out the test materials to the students in his third period class on May 2, 2001, and provided them with instructions regarding the test, T. S., who was seated in the back row of the classroom, asked Respondent several questions about the test. Dissatisfied with Respondent's responses, T. S. got out of his seat and, with the test booklet and answer sheet in hand, headed towards Ms. Clayton's classroom
to see if she could provide him with the information that he was seeking about the test.
On a regular basis, T. S. would leave Respondent's classroom, without permission, before the end of the period and go into the hallway.
Concerned that T. S. would go out into hallway with the test materials, Respondent followed T. S.
T. S. was near the partial partition dividing Respondent's and Ms. Clayton's classrooms, facing Ms. Clayton, when Respondent caught up to T. S.
T. S. started to ask Ms. Clayton a question, when he was interrupted by Respondent, who instructed T. S. to give him the test materials.
Respondent had positioned himself so that he was in front of T. S. and "close enough to touch" him.
T. S. did not hand over the test materials to Respondent; instead, he asked Respondent "to give him some space."
Respondent, however, held his ground and again "asked for the test materials back."
T. S. refused to return the test materials to Respondent, telling Respondent he was "just asking a question."
Respondent then started to reach for the test materials in an effort to grab them out of T. S.'s hand. T. S.
reacted by moving the hand in which he was holding the test materials away from Respondent so that Respondent would not be able to take the materials from him.
During the scuffle, Respondent grabbed ahold of T. S.'s shirt and "pulled" it.
He also bumped into T. S. as he was reaching for the test materials in T. S's hand.
Upset that Respondent was "over [him], touching [him]," T. S. ripped up the test materials and threw the pieces at Respondent. He was going to hit Respondent, but was subdued by a classmate, R. D. He then walked out the door and into the hallway.
Respondent returned to his classroom and went back to his desk. He was followed by R. D., who told Respondent that he "need[ed] to chill out."
While talking to Respondent, R. D. put his hands on Respondent's desk. Respondent told R. D., "get your hands off my desk." Using his hand, Respondent then forcibly moved
R. D.'s hands off the desk.
What occurred during Respondent's third period class on May 2, 2001, was reported to the administration and the matter was investigated.
Written statements from Respondent, Ms. Clayton, and T. S., as well as other students, were collected and reviewed as part of the investigation.
Mr. Rodriguez scheduled a Conference-for-the-Record with Respondent for June 11, 2001.
Before the conference was held, Respondent was involved in yet another incident in which he used physical force against a student in his class.
The student on this occasion was A. D., and the incident occurred on June 7, 2001, at around 9:30 a.m. or 9:45
a. m., near the end of the first (two hour) class period of the school day.
A. D. had engaged in disruptive behavior in Respondent's classroom before walking out of the classroom and into the hallway towards the end of the period. As A. D. was leaving, Respondent told him, "If you leave before the bell rings, I am not letting you back in this time." (This was not the first time that A. D. had walked out of Respondent's class before the period was over.)
Deanna Lipschutz, a clerical employee assigned to American's exceptional student education department, saw A. D. in the hallway. A. D. was "walking around in circles," but he was not "out of control."
Ms. Lipschutz approached A. D. and, after engaging in a brief conversation with him, escorted him back to Respondent's classroom.
The door to the classroom was closed.
Ms. Lipschutz knocked on the door.
When Respondent opened the door, Ms. Lipschutz told him that A. D. "would like to come back in class." Respondent indicated that he would not let R. D. return. Respondent then took his hands, placed them on A. D.'s shoulders, and gave A. D. a "little push." A. D. stumbled backwards. There was a wall behind A. D. that A. D. nearly made contact with as he was stumbling backwards. After pushing A. D. away from the doorway, Respondent went back inside the classroom and closed the door.
Respondent's use of physical force against A. D. on June 7, 2001, was reported to the administration and an investigation of the matter was commenced.
This was the last of the incidents (specified in the School Board's Notice of Specific Charges, as amended) involving Respondent's use of physical force against a student.
Respondent's use of physical force in each of these incidents (the February 28, 2001, incident with V. S.; the May 2, 2001, incidents with T. S. and R. D.; and the June 7, 2001, incident with A. D.) was contrary to School Board policy and unauthorized and, moreover, evinced poor judgment and a lack of
adequate concern for the physical well-being of the EH student involved in the incident.
In none of these incidents was the physical force Respondent used reasonably necessary to prevent physical harm to himself, the student involved in the incident, or anyone else, or to prevent the destruction or serious damage of property.
Respondent did not use School Board-approved "physical restraint techniques" (which are referenced in Section 3 of Article VIII of the UTD Contract) in any of these incidents. Rather, he used physical methods that were more likely to provoke, than deter, aggressive student behavior and, in so doing, created conditions harmful to the exceptional education students in his charge.
Furthermore, Respondent's use of these methods in the incidents involving T. S., R. D., and A. D. was in defiance of directives he had been given by Mr. Rodriguez during the
March 15, 2001, Conference-for-the-Record.
It is true that Respondent did not have an easy teaching assignment. He had students in his class who, because of their disability, made teaching quite difficult. As a certified EH teacher, however, Respondent should have been equipped to deal with these students' disruptive behavior without resorting to the use of unauthorized physical force.
Respondent's repeated use of such force was so serious as to impair his effectiveness as an EH teacher.
The Conference-for-the-Record with Respondent that Mr.
Rodriguez had scheduled for June 11, 2001, was held as scheduled on that date. Mr. Rodriguez subsequently prepared (on June 13, 2001) and furnished to Respondent (on that same date) a memorandum in which he summarized what had transpired at the conference. The memorandum read as follows:
The following is a summary of the conference-for-the-record on Monday, June 11, 2001, at 8:00 a.m. in this administrator's office. Present at the conference were: Karen Robinson, assistant principal; Mark Soffian, assistant principal; Jimmy Jones, UTD Representative; Sherri Greenberg, UTD Bargaining Agent Representative, yourself and this administrator.
The purpose of the conference was to address the following:
-Miami-Dade County School Board Police Case #F13868 (Substantiated)
-Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida
-School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited)
-School Board Rule 6Gx13-4A-1.21 (Employee Conduct)
-Review of the record
-Future employment with Miami-Dade County Public Schools
This administrator began the conference by reviewing written statements from several students, a teacher and yourself in the School Board Case #F13868. This
administrator informed you that your actions were in violation of School Board Rule 6Gx13-5D-1.07 of using corporal punishment and inappropriate physical restraint as a means of disciplining your students. This administrator asked if you had a response to these statements.
You stated that you had seven years of university training and a master's in SED and you had a perfect record of no incidents at Miami Central High School. You requested to read a letter from Clifford Golden, School Psychologist, that you wished to be included in the record's summary.
Additionally, you stated that "I had no problems until I came to American and it has been a difficult situation. When I first got here, you told me at a staff meeting about an ongoing LED conspiracy." This administrator corrected you about the contents of my statement as saying that "there was never a mention of a conspiracy; however, I was concerned with the quality of instructional delivery in the Exceptional Education department."
You continued stating that your colleagues were less than helpful, and that no one came to your class, and that Mr. Kucharsky, Behavior Management Teacher, did not show consistent discipline. This administrator informed you that when he visited you classroom during second period, he observed on several occasions that on one side of the room with another teacher there were students learning; however, on your side there was bedlam. Dr. Soffian indicated when he visited your class on three occasions, he observed your room to be in disarray, with books on the floor, desks overturned and students not engaged in any productive activity. Mr. Jones also indicated upon his visitation, he observed that your kids were "out of control." You responded that "I have frequent misbehavior
from that class but no one provided any consequences when I wrote them up."
This administrator then reviewed with you the State Board of Education Rule, Code of Ethics (6B-1.001, 6B-1.006). This
administrator read to you that your obligation to the student requires that "you shall make reasonable effort to protect the student from conditions harmful to learning, to the student's mental and/or physical health and/or safety." This administrator reminded that this is the second time he is issuing you this material and as a professional teacher you are obligated to comply with this code. You responded by saying you disagreed with the statement of using corporal punishment and that due to the classroom not having ventilation and being an old chorus room exacerbates the problem.
This administrator reviewed your record, citing a pattern of putting your hands on students. This administrator reviewed with you two other incidents of unnecessary physical contact of your students (Miami- Dade County Police Cases #F03631 & F09343). This administrator read to you Part III, page 121, from the handout of Special Programs and Procedures for Exceptional Students (6Gx13-6A-1.331): "Some exceptional students because of the nature of the disability, may on occasion experience impaired impulse control of such severity that the use of physical restrain[t] is necessary to prevent such students from inflicting harm to self and/or others, or from causing damage to property." This administrator stated that your actions were not justified because the student was not doing any of the above. You responded that you disagreed with the findings. You felt that the student leaving with the test booklet caused you to physically intervene and you interpreted this action as preventing property damage. You further
commented that you were a seasoned professional and that you have never hurt a student in your entire professional career. In the other cases, you stated that you were the victim and sometimes it is necessary to intervene to protect their health and safety.
This administrator referred you to the District's Support Agency Program. This administrator informed you that this supervisory referral is strictly voluntary and that you will be contacted by that office. You stated that you certainly would pursue this.
This administrator reviewed with you your Annual Evaluation for the 2000-2001 school year. This administrator explained that Categories I-VI were acceptable; however, Category VII, Professional Responsibilities, was unacceptable.[16] This administrator issued you and explained the prescription and the unacceptable Annual Evaluation.
This administrator also explained to you that this prescriptive status would freeze your salary, revoke your transfer request, and exclude you from summer employment. You asked if your salary would be retroactive and if you would be able to transfer after the prescription date. This administrator informed you that after you have met your prescription requirement then you would be free to transfer and your salary will be reinstated and retroactive to the beginning of the 2001-2002 school year. This administrator asked if anyone had any other questions.
Ms. Sherrie Greenberg, UTD representative, suggested that you receive training in physical restraint the next time it is offered. This administrator agreed with that suggestion as soon as a class opens. Ms. Greenberg also suggested to you that the District's Emotionally Handicapped supervisor visit your classroom at the
beginning of the school year and provide assistance as needed. This administrator agreed with this suggestion of any additional support to improve classroom management. This administrator reminded you that per your request, your six period schedule during this second period class was changed to a five-period day.
This administrator issued you the following directives:
-Refrain from using any physical means to enforce student discipline, particularly if the student(s)' or your safety [is] not endangered and/or damage of property is not imminent
-Adhere to Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida
-Adhere to School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited)
-Adhere to School Board Rule 6Gx13-4A-1.21 (Employee Conduct)
In closing, this administrator informed you that this is the second time a conference- for-the-record has been held with you concerning the same issues. Due to your failures to comply with the previous directives, this administrator deemed this behavior as insubordination. This administrator indicated that continued failure to comply with these directives and recurrences of this type would result in further disciplinary action which will adversely affect your future employment status. This administrator stated that he would be available to provide you any assistance that you may require.
In conclusion, you are apprised of your right to append, clarify, or explain any information recorded in this conference by this summary.
The "prescription" that Mr. Rodriguez issued for Respondent indicated that Respondent would be in "prescriptive status" from August 27, 2001, through November 1, 2001.
Respondent, however, did not return to the classroom during the 2001-2002 school year.
Shortly before the beginning of the 2001-2002 school year, Dr. Thomasina O'Donnell, a director in the School Board's Office of Professional Standards, conducted a Conference-for- the-Record with Respondent, at which she discussed Respondent's use of physical force against students at American, including the June 7, 2001, incident with A. D., and his future employment with the School Board. Dr. O'Donnell subsequently prepared (on August 27, 2001) and mailed to Respondent (on August 28, 2001) a memorandum in which she summarized what had transpired at the conference. In those portions of the memorandum addressing the "action taken" and the "action to be taken," Dr. O'Donnell wrote the following:
Action Taken
In consideration of this incident and conference data, you were placed in an alternate work assignment at Region I until disposition of the charges are determined . You were advised of the availability of services from the District's referral agency. You were also provided the option to resign your position with Miami-Dade County Public Schools which you declined at this time.
Pending further review of this case and formal notification of the recommended action or disciplinary measures to be taken, these directives are reiterated upon your return to the worksite to prevent adverse impact to the operation of the work unit and to the services provided to students.
Noncompliance with these directives will necessitate review by the Office of Professional Standards.
Refrain from using physical means to effect discipline.
Adhere to all School Board Rules and the Code of Ethics.
Supervise assigned students at all times.
During the conference, you were provided with a copy of School Board Rules 6Gx13-4A- 1.21, Responsibilities and Duties; 6Gx13-5D-
1.07 Corporal Punishment-Prohibited; and Chapter 6B-1.0[0]1(3), Code of Ethics of the Education Profession in Florida.
You were advised of the high esteem in which teachers are held and of the District's concern for any behavior which adversely [a]ffects this level of professionalism.
You were reminded of the prime directive to maintain a safe learning environment for all students and that your actions violated this directive. You were advised to keep the information presented in this conference confidential and not discuss this with students or staff.
Action To Be Taken
You were advised that the information presented at this conference, as well as subsequent documentation, would be reviewed with the Assistant Superintendent in the Office of Professional Standards, the
Superintendent of Region I, and the Principal of American Senior High School.
All investigative data will be transmitted to Professional Practices Services (PPS), Florida Department of Education, for review and possible licensure action by the Education Practices Commission (EPC).
Upon completion of the conference summary, a legal review by the School Board attorneys would be requested. Receipt of legal review with the endorsement by the Region Superintendent will compel formal notification of the recommended action or disciplinary measures to include suspension or dismissal.
A determination was made that Respondent "be recommended for dismissal for the following charges: Just cause, including but not limited to: misconduct in office, gross insubordination, and violation of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties, and 6Gx13-5D-1.07
Corporal Punishment-Prohibited."
On September 25, 2001, Dr. O'Donnell held a Conference-for-the-Record with Respondent to discuss this recommendation.
At its October 24, 2001, meeting, the School Board took action to "suspend [Respondent] and initiate dismissal proceedings against [him] from all employment by the Miami-Dade County Public Schools, effective the close of the workday, October 24, 2001, for just cause, including but not limited to: misconduct in office, gross insubordination, and violation of
School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties, and 6Gx13-5D-1.07, Corporal Punishment-Prohibited."17
CONCLUSIONS OF LAW
"In accordance with the provisions of s. 4(b) of Art.
IX of the State Constitution, district school boards [have the authority to] operate, control, and supervise all free public schools in their respective districts and may exercise any power except as expressly prohibited by the State Constitution or general law." Section 230.03(2), Florida Statutes.
Such authority extends to personnel matters and includes the power to suspend and dismiss employees. Section 230.23(5)(f), Florida Statutes ("The school board, acting as a board, shall exercise all powers and perform all duties listed below: PERSONNEL.--. . . [P]rovide for the . . . suspension, and dismissal of employees . . . ."); and Section 231.001, Florida Statutes ("Except as otherwise provided by law or the State Constitution, district school boards are authorized to prescribe rules governing personnel matters, including the assignment of duties and responsibilities for all district employees.").
A district school board is deemed to be the "public employer," as that term is used in Chapter 447, Part II, Florida Statutes, "with respect to all employees of the school district." Section 447.203(2), Florida Statutes.
As such, it has the right "to direct its employees, take disciplinary action for proper cause, and relieve its employees from duty because of lack of work or for other legitimate reasons," provided it exercises these powers in a manner that is consistent with the requirements of law. Section 447.209, Florida Statutes.
Professional service contract teachers employed by a district school board, like Respondent, may be dismissed during the term of their contract in accordance with the provisions of Subsection (6)(a) of Section 231.36, Florida Statutes, "for just cause as provided in paragraph (1)(a)" of the statute, which provides, in pertinent part, as follows:
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.
"Misconduct in office" is "defined by rule of the State Board of Education," specifically Subsection (3) of Rule 6B-4.009, Florida Administrative Code, as follows:
Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, 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 Code of Ethics of the Education Profession in Florida (set forth in Rule 6B-1.001, Florida Administrative Code) provides as
follows:
The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, and the nurture of democratic citizenship. Essential to the achievement of these standards are the freedom to learn and to teach and the guarantee of equal opportunity for all.
The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity.
Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.
The Principles of Professional Conduct for the Education Profession in Florida (set forth in Rule 6B-1.006, Florida Administrative Code) include the following provisions, among
others:
Obligation to the student requires that the individual:
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.
* * *
Shall not intentionally expose a student to unnecessary embarrassment or disparagement.
Shall not intentionally violate or deny a student's legal rights.
"Misconduct in office" may be established, even in the absence of "specific" or "independent" evidence of impairment where the conduct in which the employee engaged is of such nature that it "must have impaired" the employee's "service." See Purvis v.
Marion County School Board, 766 So. 2d 492 (Fla. 5th DCA 2000); Walker v. Highlands County School Board, 752 So. 2d 127 (Fla. 2d DCA 2000); Summers v. School Board of Marion County, 666 So. 2d
175 (Fla. 5th DCA 1995); and School Board of Miami-Dade County v. Paulk, Case No. 99-2309, 2000 WL 675294 (Fla. DOAH May 9, 2000)(Recommended Order).
"Incompetency" is "defined by rule of the State Board of Education," specifically Subsection (1) of Rule 6B-4.009, Florida Administrative Code, in pertinent part, as follows:
Incompetency is defined as inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity.
Since incompetency is a relative term, an authoritative decision in an individual case may be made on the basis of testimony by members of a panel of expert witnesses appropriately appointed from the teaching profession by the Commissioner of Education. Such judgment shall be based on a preponderance of evidence showing the
existence of one (1) or more of the following:
(a) Inefficiency: (1) repeated failure to perform duties prescribed by law (Section 231.09, Florida Statutes[18]); . . .
"Gross insubordination" and "willful neglect of duty" are "defined by rule of the State Board of Education," specifically Subsection (4) of Rule 6B-4.009, Florida Administrative Code, as follows:
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.
An isolated act of defiance does not fall within this definition. See Smith v. School Board of Leon County, 405 So. 2d 183, 185 (Fla. 1st DCA 1981)("As to the latter charge, her actions did not meet the definition of 'gross insubordination' since they were an isolated outburst and could not have been deemed 'constant or continuing.'"). With respect to the requirement that the refusal be "intentional," the First District Court of Appeal, in Forehand v. School Board of Gulf
County, 600 So. 2d 1187, 1193 (Fla. 1st DCA 1992), has stated the following:
The word "intent" is used throughout the Restatement of Torts, 2nd, to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it. Sec. 8A. Black's Law
Dictionary 727 (5th Ed. 1979) (emphasis added). An "intentional" act has been defined as one "done deliberately." American Heritage Dictionary of the English Language 683 (New College ed. 1979) (emphasis added).
"Under Florida law, a [district] school board's decision to terminate an employee is one affecting the employee's substantial interests; therefore, the employee is entitled to a formal hearing under section 120.57(1) if material issues of fact are in dispute."19 Sublett v. District School Board of Sumter County, 617 So. 2d 374, 377 (Fla. 5th DCA 1993).
Where the employee is a professional service contract teacher, pursuant to Subsection (6)(a)1. and 2. of Section 231.36, Florida Statutes, the hearing may be conducted either by the district school board itself or by a Division Administrative Law Judge (who, following the hearing, makes a recommendation to the district school board).
The teacher must be given written notice of the specific charges prior to the hearing. Although the notice "need not be set forth with the technical nicety or formal exactness required of pleadings in court," it should "specify the [statute,] rule, [regulation, or policy] the [district school board] alleges has been violated and the conduct which occasioned [said] violation." Jacker v. School Board of Dade
County, 426 So. 2d 1149, 1151 (Fla. 3d DCA 1983)(Jorgenson, J., concurring).
Any adverse action taken against the teacher may be based only upon the conduct specifically alleged in the written notice of specific charges. See United Insurance Company of America v. Department of Insurance, 793 So. 2d 1182 (Fla. 1st DCA 2001); Lusskin v. Agency for Health Care Administration, 731 So. 2d 67, 69 (Fla. 4th DCA 1999); and Delk v. Department of Professional Regulation, 595 So. 2d 966, 967 (Fla. 5th DCA 1992).
At the "formal hearing," the burden is on the district school board to prove the allegations contained in the notice.
Unless the collective bargaining agreement covering the bargaining unit of which the employee is a member provides otherwise20 (and there is no indication that the collective bargaining agreement covering Respondent's bargaining unit contains such a provision), the district school board's proof need only meet the preponderance of the evidence standard. See McNeill v. Pinellas County School Board, 678 So. 2d 476, 477 (Fla. 2d DCA 1996)("The School Board bears the burden of proving, by a preponderance of the evidence, each element of the charged offense which may warrant dismissal."); Sublett v. Sumter County School Board, 664 So. 2d 1178, 1179 (Fla. 5th DCA
1995)("We agree with the hearing officer that for the School Board to demonstrate just cause for termination, it must prove by a preponderance of the evidence, as required by law, that the allegations of sexual misconduct were true . . . ."); Allen v.
School Board of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA 1990)("We . . . find that the hearing officer and the School Board correctly determined that the appropriate standard of proof in dismissal proceedings was a preponderance of the evidence. . . . The instant case does not involve the loss of a license and, therefore, Allen's losses are adequately protected by the preponderance of the evidence standard."); and Dileo v.
School Board of Dade County, 569 So. 2d 883, 884 (Fla. 3d DCA 1990)("We disagree that the required quantum of proof in a teacher dismissal case is clear and convincing evidence, and hold that the record contains competent and substantial evidence to support both charges by a preponderance of the evidence standard.").
The Notice of Specific Charges served on Respondent, as amended, alleges that Respondent should be terminated because of his use of physical force against students (on February 28, 2001, May 2, 2001, and June 7, 2001). According to the Notice, as a result of engaging in such activity, Respondent is guilty of: "conduct unbecoming a School Board employee, in violation of School Board Rule 6Gx13-4A-1.21,[21] [which] comprises just
cause for termination of employment pursuant to §§ 231.36(1)(a) and (6)(a), Fla. Stat." (Count I); "violat[ion] [of] School Board Rule 6Gx13-5D-1.07, which prohibits corporal punishment and comprises just cause for termination of employment pursuant to §§ 231.36(1)(a) and (6)(a), Fla. Stat." (Count II);
"conduct . . . in violation of Rules 6B-1.001(1), (2), and/or (3), F.A.C., and 6B-1.006(3)(a), (e) and/or (f), F.A.C., which is so serious as to impair Respondent's effectiveness in the school system [and which] constitute[s] misconduct in office, as defined by Rule 6B-4.009(3), F.A.C., a ground warranting dismissal pursuant to §§ 231.36(1)(a) and (6)(a), Fla. Stat." (Count III); "gross insubordination and/or willful neglect of duty as defined by Rule 6B-4.009(4), F.A.C., a ground warranting dismissal pursuant to §§ 231.36(1)(a) and (6)(a), Fla. Stat." (Count IV); and "repeated[] fail[ure] to comply with School Board rules and contract provisions [which] constitutes incompetency, as defined in Rule 6B-4.009(1)(a)(1), F.A.C., a ground warranting dismissal pursuant to §§ 231.36(1)(a) and (6)(a), Fla. Stat. (Count V)."
The School Board proved Respondent's guilt of each of these charges and thereby established that there is "just cause," as defined to Subsection (1)(a) of Section 231.36, Florida Statutes, to dismiss Respondent pursuant to Subsection (6)(a) of the statute. Compare with School District of Beverly
v. Geller, 737 N.E.2d 873, 879 (Mass. App. 2000)("Based on the foregoing statutes and case law, we find a clear and well defined public policy against the use of physical force, however slight, by a teacher against students, save for those exceptions listed in G.L. c.71, § 37G(b) . . . . We further find that the arbitrator's award, finding no just cause for discharge and reinstating a teacher who on three separate occasions forcibly pushed, shoved, jabbed, dragged, knocked down, or slammed into a locker three different sixth-grade students, is in conflict with that public policy and thus exceeded the arbitrator's
powers. . . . Were we to affirm the award we would enforce 'an agreement that is contrary to public policy.' . . . Geller has on more than one isolated occasion engaged in conduct, as a teacher, that is contrary to statute. The conduct is inextricably related to his employment duties. Geller's conduct in this case is sufficient to show that his continuing as a teacher poses a special risk of injury, physical and psychological, to students, and, if he is allowed reinstatement, the district will be made 'an accessory to the wrongdoing.'"); and Simmons v. Vancouver School District No. 37, 704 P.2d 648, 655-57 (Wash. App. 1985)("Administering corporal punishment is not among the duties of the District's teachers; in fact, the District forbade teachers from doing so. Although the force Simmons used in disciplining the students was found not to be so
severe as to justify immediate dismissal, Simmons' repeated disobedience of the District's corporal punishment regulation made him unreliable and unpredictable in such matters, and dangerous to the students. . . . Both Simmons' failure to obey the regulation pertaining to the corporal punishment of students, and his insubordination in continuing, despite repeated warnings, to use physical force against his students, violated the District's Policy No. 4118. This violation constituted a material breach of his employment contract with the District. We hold that Simmons' insubordination and violation of the District's regulation concerning corporal punishment was 'sufficient cause' . . . for Simmons' discharge.").
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating his employment as a professional service contract teacher with the School Board for the reasons set forth in the Notice of Specific Charges, as amended.
DONE AND ENTERED this 14th day of August, 2002, in Tallahassee, Leon County, Florida.
STUART M. LERNER
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 14th day of August, 2002.
ENDNOTES
1/ At the final hearing, the School Board's attorney stated the following with respect to this paragraph of the Notice of Specific Charges:
[To] make it clear for the record, we are not charging Mr. Wojcicki with violation of any School Board rules on November 11th.
The purpose of that paragraph in the [Notice of] Specific Charges was just to show that he was cautioned about using physical force.
* * *
The only reason that paragraph is in there is to mirror what was in Mr. Rodriguez's [the American Senior High School Principal's] Conference for the
Record . . . . [W]e are not trying to prove the incident itself, but the warning not to use improper force from that point on.
2/ The School Board adopted School Board Rule 6Gx13-5D-1.07 in accordance with Subsection (6)(c) of Section 230.23, Florida Statutes, which authorizes a district school board "to prohibit
the use of corporal punishment, provided that the school board adopts or has adopted a written program of alternative control or discipline." "Corporal punishment," as that term is used in Subsection (6)(c) of Section 230.23, Florida Statutes, and elsewhere in the Florida School Code, is defined in Subsection
(27) of Section 228.041, Florida Statutes, as follows:
Corporal punishment is the moderate use of physical force or physical contact by a teacher or principal as may be necessary to maintain discipline or to enforce school rule. However, the term "corporal punishment" does not include the use of such reasonable force by a teacher or principal as may be necessary for self-protection or to protect other students from disruptive students.
The School Board construes the term "corporal punishment," as used in School Board Rule 6Gx13-5D-1.07, in a manner consistent with this statutory definition of the term. Inasmuch as this is a reasonable interpretation of the rule that is not clearly erroneous, it has been accepted by the undersigned. See Citizens of the State of Florida v. Wilson, 568 So. 2d 1267, 1271 (Fla. 1990)("An agency's interpretation of its own rules is entitled to great deference."); Purvis v. Marion County School Board, 766 So. 2d 492, 498-99 (Fla. 5th DCA 2000)("'[A]n
agency's interpretation of its own regulations has traditionally been accorded considerable respect.' . . . Although this deference is not absolute, the courts should defer to the agency unless [the agency's] construction amounts to an unreasonable interpretation, or is clearly erroneous."); and Golfcrest Nursing Home v. Agency for Health Care Administration, 662 So.
2d 1330, 1333 (Fla. 1st DCA 1995)("An agency's interpretation of its own rules and regulations is entitled to great weight, and shall not be overturned unless the interpretation is clearly erroneous.").
3/ Ms. Clayton was a colleague of Respondent's at Central. She came to American at or around the same time Respondent did.
4/ This partition extended neither from wall to wall, nor from the floor to the ceiling.
5/ The room was "an old choral room at the back of the . . . [school] auditorium."
6/ Ms. Clayton and Respondent "both made complaints and [they] were able, over the period of a year, to gradually reduce [their] teaching together in that same room, [as the administration] managed to find [alternative space] for [them] here and there for different periods."
7/ School Board Rule 6Gx13-5D-1.07 is part of the evidentiary record in the instant case. School Board Rule 6Gx13-5D-1.08 is not.
8/ Respondent wrote "several referrals" on V. S. When Mr. Kucharsky received a referral from Respondent on V. S. or any other student, he took action to address the matter. (The undersigned has rejected, as contrary to the greater weight of the evidence, Respondent's testimony that V. S. never "received consequences" as a result of Respondent's referrals; however, even if Mr. Kucharsky was derelict in his responsibilities, such dereliction on Mr. Kucharsky's part would not give Respondent a license to violate School Board policy (and supervisory directives consistent therewith) on the use of physical force against students.)
9/ Shaking a student's arm is not a form of "proximity control."
10/ In their written statements, both V. S. and C. H. had alleged that Respondent had pushed V. S. off Respondent's desk. (Neither V. S., nor C. H., testified at the final hearing in this case. The only eyewitness to the incident to testify was Respondent, who testified that he had shaken V. S.'s arm, but had not pushed V. S. off the desk, testimony the undersigned has credited, notwithstanding that the undersigned has rejected, as contrary to the greater weight of the evidence, other portions of the testimony Respondent gave at hearing. See Myron v. South Broward Hospital District, 703 So. 2d 527, 531 (Fla. 4th DCA 1997)("[A] jury is free to believe parts of a witness' testimony and disbelieve other parts."); see also Martuccio v. Department of Professional Regulation, 622 So. 2d 607, 609 (Fla. 1st DCA 1993)(Although self-serving nature of testimony given by "[p]ersons having a pecuniary or proprietary interest in the outcome of litigation" does not render testimony inadmissible, interest of person in outcome of case may be considered in evaluating credibility of testimony).)
11/ Section 232.27, Florida Statutes, provides as follows:
232.27 Authority of teacher; responsibility for control of students; school district duties.--Subject to law and to the rules of the district school board, each teacher or other member of the staff of any school shall have such authority for the control and discipline of students as may be assigned to him or her by the principal or the principal's designated representative and shall keep good order in the classroom and in other places in which he or she is assigned to be in charge of students.
Within the framework of the school district code of student conduct, teachers and other instructional personnel shall have the authority to undertake any of the following actions in managing student behavior and ensuring the safety of all students in their classes and school:
Establish classroom rules of conduct.
Establish and implement consequences, designed to change behavior, for infractions of classroom rules.
Have disobedient, disrespectful, violent, abusive, uncontrollable, or disruptive students temporarily removed from the classroom for behavior management intervention.
Have violent, abusive, uncontrollable, or disruptive students directed for information or assistance from appropriate school or district personnel.
Assist in enforcing school rules on school property, on school-sponsored transportation, and during school-sponsored activities.
Request and receive information as to the disposition of any referrals to the
administration for violation of classroom or school rules.
Request and receive immediate assistance in classroom management if a student becomes uncontrollable or in case of emergency.
Request and receive training and other assistance to improve skills in classroom management, violence prevention, conflict resolution, and related areas.
Press charges if a crime has been committed against the teacher or other instructional personnel on school property, on school-sponsored transportation, or during school-sponsored activities.
Use reasonable force, according to standards recommended by the Education Standards Commission and the Education Practices Commission and adopted by the State Board of Education, to protect himself or herself or others from injury.
Use corporal punishment according to school board policy and at least the following procedures, if a teacher feels that corporal punishment is necessary:
The use of corporal punishment shall be approved in principle by the principal before it is used, but approval is not necessary for each specific instance in which it is used. The principal shall prepare guidelines for administering such punishment which identify the types of punishable offenses, the conditions under which the punishment shall be administered, and the specific personnel on the school staff authorized to administer the punishment.
A teacher or principal may administer corporal punishment only in the presence of another adult who is informed beforehand,
and in the student's presence, of the reason for the punishment.
A teacher or principal who has administered punishment shall, upon request, provide the pupil's parent or guardian with a written explanation of the reason for the punishment and the name of the other adult who was present.
Teachers and other instructional personnel shall have responsibility to:
Set and enforce reasonable classroom rules that treat all students equitably.
Seek professional development to improve classroom management skills when data show that they are not effective in handling minor classroom disruptions.
Maintain a positive and effective learning environment that maximizes learning and minimizes disruption.
Work with parents and other school personnel to solve discipline problems in their classrooms.
When knowledgeable of the likely risk of physical violence in the schools, the school district shall take reasonable steps to ensure that teachers, other school staff, and students are not at undue risk of violence or harm.
12/ Mr. Rodriguez himself had not received any "training in appropriate disciplinary intervention for emotionally handicapped students," although he was familiar with School Board rules that addressed the issue.
13/ The evidentiary record in this case does not include the page of the manual on which this sentence is continued.
14/ Section 228.301, Florida Statutes, provides as follows:
It is unlawful for anyone knowingly and willfully to violate test security rules adopted by the State Board of Education or the Commissioner of Education for mandatory tests administered by or through the State Board of Education or the Commissioner of Education to students, educators, or applicants for certification or administered by school districts pursuant to s. 229.57, or, with respect to any such test, knowingly and willfully to:
Give examinees access to test questions prior to testing;
Copy, reproduce, or use in any manner inconsistent with test security rules all or any portion of any secure test booklet;
Coach examinees during testing or alter or interfere with examinees' responses in any way;
Make answer keys available to examinees;
Fail to follow security rules for distribution and return of secure test as directed, or fail to account for all secure test materials before, during, and after testing;
Fail to follow test administration directions specified in the test administration manuals; or
Participate in, direct, aid, counsel, assist in, or encourage any of the acts prohibited in this section.
Any person who violates this section is guilty of a misdemeanor of the first degree, punishable by a fine of not more than $1,000 or imprisonment for not more than 90 days, or both.
A district superintendent of schools, a president of a community college, a president of a university, or a president of a private postsecondary institution shall cooperate with the Commissioner of Education in any investigation concerning the administration of a test administered pursuant to state statute or rule.
15/ Rule 6A-10.042, Florida Administrative Code, provides as follows:
Tests implemented in accordance with the requirements of Sections 229.053(2)(d), 229.57, 231.087, 231.0861(3), 231.17, 233.011, 239.301(10), 240.107(8), and 240.117, Florida Statutes, shall be maintained and administered in a secure manner such that the integrity of the tests shall be preserved.
Test questions shall be preserved in a secure manner by individuals who are developing and validating the tests. Such individuals shall not reveal in any manner, verbally or in writing, the test questions under development.
Tests or individual test questions shall not be revealed, copied, or otherwise reproduced by persons who are involved in the administration, proctoring, or scoring of any test.
Examinees shall not be assisted in answering test questions by any means by persons administering or proctoring the administration of any test.
Examinees' answers to questions shall not be interfered with in any way by persons administering, proctoring, or scoring the examinations.
Examinees shall not be given answer keys by any person.
Persons who are involved in administering or proctoring the tests or persons who teach or otherwise prepare examinees for the tests shall not participate in, direct, aid, counsel, assist in, or encourage any activity which could result in the inaccurate measurement or reporting of the examinees' achievement.
Each person who has access to tests or test questions during the development, printing, administration, or scoring of the tests shall be informed of specifications for maintaining test security, the provisions in statute and rule governing test security, and a description of the penalties for breaches of test security.
During each test administration, school district and institutional test administration coordinators and contractors employing test administrators and proctors shall ensure that required testing procedures are being followed at all test administration sites. Officials from the Department are authorized to conduct unannounced observations of test administration procedures at any test administration site to ensure that testing procedures are being correctly followed.
Test materials, including all test booklets and other materials containing secure test questions, answer keys, and student responses, shall be kept secure and precisely accounted for in accordance with the procedures specified in the examination program administration manuals and other communications provided by the Department. Such procedures shall include but are not limited to the following:
All test materials shall be kept in secure, locked storage prior to and after administration of any test.
All test materials shall be precisely accounted for and written documentation kept by test administrators and proctors for each point at which test materials are distributed and returned.
Any discrepancies noted in the number or serial numbers of testing materials received from contractors shall be reported to the Department by designated institutional or school district personnel prior to the administration of the test.
In the event that test materials are determined to be missing while in the possession of an institution or school district, designated institutional or school district personnel shall investigate the cause of the discrepancy and provide the Department with a report of the investigation within thirty (30) calendar days of the initiation of the investigation. At a minimum, the report shall include the nature of the situation, the time and place of occurrence, and the names of the persons involved in or witness to the occurrence. Officials from the Department are authorized to conduct additional investigations.
In those cases where the responsibility for secure destruction of certain test materials is assigned by the Department to designated institutional or school district personnel, the responsible institutional or school district representative shall certify in writing that such destruction was accomplished in a secure manner.
In those cases where test materials are permitted by the Department to be maintained in an institution or school district, the test materials shall be maintained in a secure manner as specified in the instructions provided by the Department. Access to the materials shall be limited to the individuals and purposes specified by the Department.
In those situations where an employee of the educational institution, school district, or contractor, or an employee of the Department suspects a student of cheating on a test or suspects other violations of the provisions of this rule, a report shall be made to the department or test support contractor, as specified in the test administration procedures, within ten
(10) calendar days. The report shall include a description of the incident, the names of the persons involved in or witness to the incident, and other information as appropriate. Officials from the Department are authorized to conduct additional investigations.
(4) Violations of test security provisions shall be subject to penalties provided in statute and State Board Rules.
16/ Under the Teacher Assessment and Development System that the School Board used at the time, Categories I through VI were as follows:
PREPARATION AND PLANNING
The teacher shows evidence of preparation and planning in structuring the learning experiences of students.
KNOWLEDGE OF SUBJECT MATTER
The teacher demonstrates subject matter competence while teaching.
CLASSROOM MANAGEMENT
The teacher administers activities well so that pupils are able to understand expectations and work efficiently with little disruption.
TECHNIQUES OF INSTRUCTION
The teacher instructs at levels which are commensurate with the intellectual and developmental needs of learners, presents content in sequential and orderly fashion
and facilitates interactions pertinent to lesson objectives.
TEACHER-STUDENT RELATIONSHIPS The teacher establishes positive
constructive relationships with students to stimulate and maintain a positive learning environment.
ASSESSMENT TECHNIQUES
The teacher utilizes a variety of informal and formal assessment techniques which motivate and enable students to learn and which assist the teacher in understanding the degree of student learning and the degree to which instructional objectives are being attained.
Ratings in these first six categories could be based only on "formal classroom observations." In Category VII, Professional Responsibility, a teacher was rated on whether he or she "act[ed] in a professional and responsible manner to carry out assigned duties and comply with district and school policies in a timely manner." There was no prohibition against basing an unacceptable rating in this final category on an incident not occurring during a "formal classroom observation."
17/ The School Board was not prohibited from taking such action prior to November 1, 2001, the date Respondent's "prescriptive status" was scheduled to terminate.
18/ Section 231.09, Florida Statutes, provides as follows:
The primary duty of instructional personnel is to work diligently and faithfully to help students meet or exceed annual learning goals, to meet state and local achievement requirements, and to master the skills required to graduate from high school prepared for postsecondary education and work. This duty applies to instructional personnel whether they teach or function in a support role.
Members of the instructional staff of the public schools shall perform duties prescribed by rules of the district school board. The rules shall include, but are not
limited to, rules relating to a teacher's duty to help students master challenging standards and meet all state and local requirements for achievement; teaching efficiently and faithfully, using prescribed materials and methods, including technology- based instruction; recordkeeping; and fulfilling the terms of any contract, unless released from the contract by the district school board.
19/ "A county school board is a state agency falling within Chapter 120 for purposes of quasi-judicial administrative orders." Sublett v. District School Board of Sumter County, 617 So. 2d 374, 377 (Fla. 5th DCA 1993).
20/ Where the district school board, through the collective bargaining process, has agreed to bear a more demanding standard, it must honor, and act in accordance with, its agreement. See Chiles v. United Faculty of Florida, 615 So. 2d 671, 672-73 (Fla. 1993)("Once the executive has negotiated and the legislature has accepted and funded an agreement [with its employees' collective bargaining representative], the state and all its organs are bound by that [collective bargaining agreement] under the principles of contract law."); Hillsborough County Governmental Employees Association v. Hillsborough County Aviation Authority, 522 So. 2d 358, 363 (Fla. 1988)("[W]e hold that a public employer must implement a ratified collective bargaining agreement with respect to wages, hours, or terms or conditions of employment . . . ."); and Palm Beach County School Board v. Auerbach, Case No. 96-3683, 1997 WL 1052595 (Fla. DOAH February 20, 1997)(Recommended Order)("Long-standing case law establishes that in a teacher employment discipline case, the school district has the burden of proving its charges by a preponderance of the evidence. . . . However, in this case, the district must comply with the terms of the collective bargaining agreement, which, as found in paragraph 27, above, requires the more stringent standard of proof: clear and convincing evidence.").
21/ "The violation of [the School Board's rule] prohibiting the use of corporal punishment in public schools constitutes conduct that is unbecoming a member of the teaching profession. The infliction of corporal punishment by a teacher on a student is clearly conduct directly related to the fitness of that teacher to act in his or her professional capacity." Daily v. Board of
Education of Morrill County School District No. 62-0063, 588 N.W.2d 813, 824-25 (Neb. 1999).
COPIES FURNISHED:
Madelyn P. Schere, Esquire Miami-Dade County School Board
1450 Northeast 2nd Avenue, Suite 400
Miami, Florida 33132
Leslie Holland, Esquire
Law Offices of Leslie Holland
370 Minorca Avenue, Suite 11 Coral Gables, Florida 33134
Merrett R. Stierheim Interim Superintendent
Miami-Dade County School Board 1450 Northeast 2nd Avenue, No. 912
Miami, Florida 33132-1394
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.
1 At the final hearing, the School Board's attorney stated the following with respect to this paragraph of the Notice of Specific Charges:
[To] make it clear for the record, we are
not charging Mr. Wojcicki with violation of any School Board rules on November 11th.
The purpose of that paragraph in the [Notice of] Specific Charges was just to show that he was cautioned about using physical force.
* * *
The only reason that paragraph is in there is to mirror what was in Mr. Rodriguez's [the American Senior High School Principal's] Conference for the
Record . . . . [W]e are not trying to prove the incident itself, but the warning not to use improper force from that point on.
2 The School Board adopted School Board Rule 6Gx13-5D-1.07 in accordance with Subsection (6)(c) of Section 230.23, Florida Statutes, which authorizes a district school board "to prohibit the use of corporal punishment, provided that the school board adopts or has adopted a written program of alternative control or discipline." "Corporal punishment," as that term is used in Subsection (6)(c) of Section 230.23, Florida Statutes, and elsewhere in the Florida School Code, is defined in Subsection
(27) of Section 228.041, Florida Statutes, as follows:
Corporal punishment is the moderate use of physical force or physical contact by a teacher or principal as may be necessary to maintain discipline or to enforce school rule. However, the term "corporal punishment" does not include the use of such reasonable force by a teacher or principal as may be necessary for self-protection or to protect other students from disruptive students.
The School Board construes the term "corporal punishment," as used in School Board Rule 6Gx13-5D-1.07, in a manner consistent with this statutory definition of the term. Inasmuch as this is a reasonable interpretation of the rule that is not clearly erroneous, it has been accepted by the undersigned. See Citizens of the State of Florida v. Wilson, 568 So. 2d 1267, 1271 (Fla. 1990)("An agency's interpretation of its own rules is entitled to great deference."); Purvis v. Marion County School Board, 766 So. 2d 492, 498-99 (Fla. 5th DCA 2000)("'[A]n
agency's interpretation of its own regulations has traditionally been accorded considerable respect.' . . . Although this deference is not absolute, the courts should defer to the agency unless [the agency's] construction amounts to an unreasonable interpretation, or is clearly erroneous."); and Golfcrest Nursing Home v. Agency for Health Care Administration, 662 So.
2d 1330, 1333 (Fla. 1st DCA 1995)("An agency's interpretation of its own rules and regulations is entitled to great weight, and shall not be overturned unless the interpretation is clearly erroneous.").
3 Ms. Clayton was a colleague of Respondent's at Central. She came to American at or around the same time Respondent did.
4 This partition extended neither from wall to wall, nor from the floor to the ceiling.
5 The room was "an old choral room at the back of the . . . [school] auditorium."
6 Ms. Clayton and Respondent "both made complaints and [they] were able, over the period of a year, to gradually reduce [their] teaching together in that same room, [as the administration] managed to find [alternative space] for [them] here and there for different periods."
7 School Board Rule 6Gx13-5D-1.07 is part of the evidentiary record in the instant case. School Board Rule 6Gx13-5D-1.08 is not.
8 Respondent wrote "several referrals" on V. S. When Mr. Kucharsky received a referral from Respondent on V. S. or any other student, he took action to address the matter. (The undersigned has rejected, as contrary to the greater weight of the evidence, Respondent's testimony that V. S. never "received consequences" as a result of Respondent's referrals; however, even if Mr. Kucharsky was derelict in his responsibilities, such dereliction on Mr. Kucharsky's part would not give Respondent a license to violate School Board policy (and supervisory directives consistent therewith) on the use of physical force against students.)
9 Shaking a student's arm is not a form of "proximity control."
10 In their written statements, both V. S. and C. H. had alleged that Respondent had pushed V. S. off Respondent's desk.
(Neither V. S., nor C. H., testified at the final hearing in this case. The only eyewitness to the incident to testify was Respondent, who testified that he had shaken V. S.'s arm, but had not pushed V. S. off the desk, testimony the undersigned has credited, notwithstanding that the undersigned has rejected, as contrary to the greater weight of the evidence, other portions of the testimony Respondent gave at hearing. See Myron v. South Broward Hospital District, 703 So. 2d 527, 531 (Fla. 4th DCA 1997)("[A] jury is free to believe parts of a witness' testimony and disbelieve other parts."); see also Martuccio v. Department of Professional Regulation, 622 So. 2d 607, 609 (Fla. 1st DCA 1993)(Although self-serving nature of testimony given by "[p]ersons having a pecuniary or proprietary interest in the outcome of litigation" does not render testimony inadmissible, interest of person in outcome of case may be considered in evaluating credibility of testimony).)
11 Section 232.27, Florida Statutes, provides as follows:
232.27 Authority of teacher; responsibility for control of students; school district duties.--Subject to law and to the rules of the district school board, each teacher or other member of the staff of any school shall have such authority for the control and discipline of students as may be assigned to him or her by the principal or the principal's designated representative and shall keep good order in the classroom and in other places in which he or she is assigned to be in charge of students.
Within the framework of the school district code of student conduct, teachers and other instructional personnel shall have the authority to undertake any of the following actions in managing student behavior and ensuring the safety of all students in their classes and school:
Establish classroom rules of conduct.
Establish and implement consequences, designed to change behavior, for infractions of classroom rules.
Have disobedient, disrespectful, violent, abusive, uncontrollable, or disruptive students temporarily removed from the classroom for behavior management intervention.
Have violent, abusive, uncontrollable, or disruptive students directed for information or assistance from appropriate school or district personnel.
Assist in enforcing school rules on school property, on school-sponsored transportation, and during school-sponsored activities.
Request and receive information as to the disposition of any referrals to the administration for violation of classroom or school rules.
Request and receive immediate assistance in classroom management if a student becomes uncontrollable or in case of emergency.
Request and receive training and other assistance to improve skills in classroom management, violence prevention, conflict resolution, and related areas.
Press charges if a crime has been committed against the teacher or other instructional personnel on school property, on school-sponsored transportation, or during school-sponsored activities.
Use reasonable force, according to standards recommended by the Education Standards Commission and the Education Practices Commission and adopted by the State Board of Education, to protect himself or herself or others from injury.
Use corporal punishment according to school board policy and at least the
following procedures, if a teacher feels that corporal punishment is necessary:
The use of corporal punishment shall be approved in principle by the principal before it is used, but approval is not necessary for each specific instance in which it is used. The principal shall prepare guidelines for administering such punishment which identify the types of punishable offenses, the conditions under which the punishment shall be administered, and the specific personnel on the school staff authorized to administer the punishment.
A teacher or principal may administer corporal punishment only in the presence of another adult who is informed beforehand, and in the student's presence, of the reason for the punishment.
A teacher or principal who has administered punishment shall, upon request, provide the pupil's parent or guardian with a written explanation of the reason for the punishment and the name of the other adult who was present.
Teachers and other instructional personnel shall have responsibility to:
Set and enforce reasonable classroom rules that treat all students equitably.
Seek professional development to improve classroom management skills when data show that they are not effective in handling minor classroom disruptions.
Maintain a positive and effective learning environment that maximizes learning and minimizes disruption.
Work with parents and other school personnel to solve discipline problems in their classrooms.
When knowledgeable of the likely risk of physical violence in the schools, the school district shall take reasonable steps to ensure that teachers, other school staff, and students are not at undue risk of violence or harm.
12 Mr. Rodriguez himself had not received any "training in appropriate disciplinary intervention for emotionally handicapped students," although he was familiar with School Board rules that addressed the issue.
13 The evidentiary record in this case does not include the page of the manual on which this sentence is continued.
14 Section 228.301, Florida Statutes, provides as follows:
It is unlawful for anyone knowingly and willfully to violate test security rules adopted by the State Board of Education or the Commissioner of Education for mandatory tests administered by or through the State Board of Education or the Commissioner of Education to students, educators, or applicants for certification or administered by school districts pursuant to s. 229.57, or, with respect to any such test, knowingly and willfully to:
Give examinees access to test questions prior to testing;
Copy, reproduce, or use in any manner inconsistent with test security rules all or any portion of any secure test booklet;
Coach examinees during testing or alter or interfere with examinees' responses in any way;
Make answer keys available to examinees;
Fail to follow security rules for distribution and return of secure test as directed, or fail to account for all secure test materials before, during, and after testing;
Fail to follow test administration directions specified in the test administration manuals; or
Participate in, direct, aid, counsel, assist in, or encourage any of the acts prohibited in this section.
Any person who violates this section is guilty of a misdemeanor of the first degree, punishable by a fine of not more than $1,000 or imprisonment for not more than 90 days, or both.
A district superintendent of schools, a president of a community college, a president of a university, or a president of a private postsecondary institution shall cooperate with the Commissioner of Education in any investigation concerning the administration of a test administered pursuant to state statute or rule.
15 Rule 6A-10.042, Florida Administrative Code, provides as follows:
Tests implemented in accordance with the requirements of Sections 229.053(2)(d), 229.57, 231.087, 231.0861(3), 231.17, 233.011, 239.301(10), 240.107(8), and 240.117, Florida Statutes, shall be maintained and administered in a secure manner such that the integrity of the tests shall be preserved.
Test questions shall be preserved in a secure manner by individuals who are developing and validating the tests. Such individuals shall not reveal in any manner,
verbally or in writing, the test questions under development.
Tests or individual test questions shall not be revealed, copied, or otherwise reproduced by persons who are involved in the administration, proctoring, or scoring of any test.
Examinees shall not be assisted in answering test questions by any means by persons administering or proctoring the administration of any test.
Examinees' answers to questions shall not be interfered with in any way by persons administering, proctoring, or scoring the examinations.
Examinees shall not be given answer keys by any person.
Persons who are involved in administering or proctoring the tests or persons who teach or otherwise prepare examinees for the tests shall not participate in, direct, aid, counsel, assist in, or encourage any activity which could result in the inaccurate measurement or reporting of the examinees' achievement.
Each person who has access to tests or test questions during the development, printing, administration, or scoring of the tests shall be informed of specifications for maintaining test security, the provisions in statute and rule governing test security, and a description of the penalties for breaches of test security.
During each test administration, school district and institutional test administration coordinators and contractors employing test administrators and proctors shall ensure that required testing procedures are being followed at all test
administration sites. Officials from the Department are authorized to conduct unannounced observations of test administration procedures at any test administration site to ensure that testing procedures are being correctly followed.
Test materials, including all test booklets and other materials containing secure test questions, answer keys, and student responses, shall be kept secure and precisely accounted for in accordance with the procedures specified in the examination program administration manuals and other communications provided by the Department. Such procedures shall include but are not limited to the following:
All test materials shall be kept in secure, locked storage prior to and after administration of any test.
All test materials shall be precisely accounted for and written documentation kept by test administrators and proctors for each point at which test materials are distributed and returned.
Any discrepancies noted in the number or serial numbers of testing materials received from contractors shall be reported to the Department by designated institutional or school district personnel prior to the administration of the test.
In the event that test materials are determined to be missing while in the possession of an institution or school district, designated institutional or school district personnel shall investigate the cause of the discrepancy and provide the Department with a report of the investigation within thirty (30) calendar days of the initiation of the investigation. At a minimum, the report shall include the nature of the situation, the time and place
of occurrence, and the names of the persons involved in or witness to the occurrence.
Officials from the Department are authorized to conduct additional investigations.
In those cases where the responsibility for secure destruction of certain test materials is assigned by the Department to designated institutional or school district personnel, the responsible institutional or school district representative shall certify in writing that such destruction was accomplished in a secure manner.
In those cases where test materials are permitted by the Department to be maintained in an institution or school district, the test materials shall be maintained in a secure manner as specified in the instructions provided by the Department. Access to the materials shall be limited to the individuals and purposes specified by the Department.
In those situations where an employee of the educational institution, school district, or contractor, or an employee of the Department suspects a student of cheating on a test or suspects other violations of the provisions of this rule, a report shall be made to the department or test support contractor, as specified in the test administration procedures, within ten
(10) calendar days. The report shall include a description of the incident, the names of the persons involved in or witness to the incident, and other information as appropriate. Officials from the Department are authorized to conduct additional investigations.
(4) Violations of test security provisions shall be subject to penalties provided in statute and State Board Rules.
16 Under the Teacher Assessment and Development System (TADS) that the School Board used at the time, Categories I through VI were as follows:
PREPARATION AND PLANNING
The teacher shows evidence of preparation and planning in structuring the learning experiences of students.
KNOWLEDGE OF SUBJECT MATTER
The teacher demonstrates subject matter competence while teaching.
CLASSROOM MANAGEMENT
The teacher administers activities well so that pupils are able to understand expectations and work efficiently with little disruption.
TECHNIQUES OF INSTRUCTION
The teacher instructs at levels which are commensurate with the intellectual and developmental needs of learners, presents content in sequential and orderly fashion and facilitates interactions pertinent to lesson objectives.
TEACHER-STUDENT RELATIONSHIPS The teacher establishes positive
constructive relationships with students to stimulate and maintain a positive learning environment.
ASSESSMENT TECHNIQUES
The teacher utilizes a variety of informal and formal assessment techniques which motivate and enable students to learn and which assist the teacher in understanding the degree of student learning and the degree to which instructional objectives are being attained.
Ratings in these first six categories could be based only on "formal classroom observations." In Category VII, Professional Responsibility, a teacher was rated on whether he or she "act[ed] in a professional and responsible manner to carry out
assigned duties and comply with district and school policies in a timely manner." There was no prohibition against basing an unacceptable rating in this final category on an incident not occurring during a "formal classroom observation."
17 The School Board was not in prohibited from taking such action prior to November 1, 2001, the date Respondent's "prescriptive status" was scheduled to terminate.
18 Section 231.09, Florida Statutes, provides as follows:
The primary duty of instructional personnel is to work diligently and faithfully to help students meet or exceed annual learning goals, to meet state and local achievement requirements, and to master the skills required to graduate from high school prepared for postsecondary education and work. This duty applies to instructional personnel whether they teach or function in a support role.
Members of the instructional staff of the public schools shall perform duties prescribed by rules of the district school board. The rules shall include, but are not limited to, rules relating to a teacher's duty to help students master challenging standards and meet all state and local requirements for achievement; teaching efficiently and faithfully, using prescribed materials and methods, including technology- based instruction; recordkeeping; and fulfilling the terms of any contract, unless released from the contract by the district school board.
19 "A county school board is a state agency falling within Chapter 120 for purposes of quasi-judicial administrative orders." Sublett v. District School Board of Sumter County, 617 So. 2d 374, 377 (Fla. 5th DCA 1993).
20 Where the district school board, through the collective bargaining process, has agreed to bear a more demanding standard, it must honor, and act in accordance with, its agreement. See Chiles v. United Faculty of Florida, 615 So. 2d 671, 672-73 (Fla. 1993)("Once the executive has negotiated and
the legislature has accepted and funded an agreement [with its employees' collective bargaining representative], the state and all its organs are bound by that [collective bargaining agreement] under the principles of contract law."); Hillsborough County Governmental Employees Association v. Hillsborough County Aviation Authority, 522 So. 2d 358, 363 (Fla. 1988)("[W]e hold that a public employer must implement a ratified collective bargaining agreement with respect to wages, hours, or terms or conditions of employment . . . ."); and Palm Beach County School Board v. Auerbach, Case No. 96-3683, 1997 WL 1052595 (Fla. DOAH February 20, 1997)(Recommended Order)("Long-standing case law establishes that in a teacher employment discipline case, the school district has the burden of proving its charges by a preponderance of the evidence. . . . However, in this case, the district must comply with the terms of the collective bargaining agreement, which, as found in paragraph 27, above, requires the more stringent standard of proof: clear and convincing evidence.").
21 "The violation of [the School Board's rule] prohibiting the use of corporal punishment in public schools constitutes conduct that is unbecoming a member of the teaching profession. The infliction of corporal punishment by a teacher on a student is clearly conduct directly related to the fitness of that teacher to act in his or her professional capacity." Daily v. Board of Education of Morrill County School District No. 62-0063, 588 N.W.2d 813, 824-25 (Neb. 1999).
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 13, 2002 | Agency Final Order | |
| Aug. 14, 2002 | Recommended Order | Just cause existed to dismiss professional service contract teacher who was guilty of using unauthorized physical force against students. |
