vs. ) Case No. 01-4264
Respondent. )
Pursuant to notice, the final hearing was held in this case on January 28, 2002, in Miami, Florida, before Larry J. Sartin, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Madelyn P. Schere, Esquire
For Respondent: Frank E. Freeman, Esquire
The issue in this case is whether the Respondent, Angel Guzman, committed the violations alleged in a Notice of Specific Charges filed by the Petitioner, the School Board of Miami-Dade
County, Florida, on November 14, 2001, and, if so, the penalty that should be imposed.
Petitioner, the School Board of Miami-Dade County, notified Angel Guzman that Petitioner had taken action on October 24, 2001, to suspend him from his teaching position and to initiate dismissal proceedings against him. Mr. Guzman, through counsel, timely requested a hearing, and Petitioner filed the request on October 31, 2001, with the Division of Administrative Hearings for assignment of an administrative law judge. The matter was initially assigned to Administrative Law Judge Errol H. Powell and was subsequently assigned to the undersigned.
On November 14, 2001, Petitioner filed its Notice of Specific Charges, which became the charging document in this case. In the Notice of Specific Charges, Petitioner alleges that Mr. Guzman, on or about February 16, 2001, pushed and/or hit a student with a chair and that, on or about April 25, 2001, Mr. Guzman grabbed a student's wrist or arm and/or dragged the student on the floor and/or hit his hand on a door, and/or kneeled on the student. Based upon these essential factual allegations, Petitioner charges in Count I that Mr. Guzman's conduct constituted conduct unbecoming a School Board employee, in violation of School Board Rule 6Gx13-4A-1.21; in Count II that his conduct constituted corporal punishment, in violation
At the hearing, Petitioner presented the testimony of the following witnesses: Maurice Barnhill, Sherwin JeanPierre, Cristorey Bentancourt, Shannon Starling, Jamie Frazier, and Ian Lightbourne, all of whom were students at Edison Middle School at the times pertinent to this matter; Peggy Henderson Jones, Assistant Principal for Edison Middle School; Theron A. Clark, Assistant Principal for Edison Middle School; Ronald D. Major, Principal for Edison Middle School; and Sharon Jackson, a District Director of Petitioner's Office of Professional Standards. Petitioner's Exhibits 1A through 1C, 2A, 2B, 2E, and
2I, and 3 through 17 were offered and received into evidence. Petitioner's Exhibits 2C, 2D, and 2F through 2H were not admitted. Petitioner presented additional testimony from Ms. Jackson on rebuttal.
Mr. Guzman testified in his own behalf and presented the testimony of Lashanna K. Chalk, the mother of Maurice Barnhill, and Ms. Starling. Respondent's Exhibits 1 through 5 were offered and received into evidence. Respondent's Exhibit 4 was offered, without objection, by Petitioner.
The one-volume Transcript of the proceedings was filed with the Division of Administrative Hearings on March 7, 2002. By Order entered March 8, 2002, the parties were informed that their proposed recommended orders were to be filed on or before March 18, 2002. Petitioner filed proposed findings of facts and conclusions of law, which have been considered in preparing this Recommended Order. Respondent did not file any post-hearing pleading.
Petitioner, the Miami-Dade County School Board (hereinafter referred to as the "School Board"), is a duly- constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Article IX, Florida Constitution; and Section 230.03, Florida Statutes.
At all times material to this proceeding, Angel Guzman was employed as a teacher by the School Board and assigned to Miami Edison Middle School (hereinafter referred to as "Edison"). Mr. Guzman is and has been employed by the School Board pursuant to an annual service contract.
Prior to his employment by the School Board, Mr. Guzman was employed by New York City as a teacher assistant for three years and as a teacher for four years. He has been employed as a graphic communications teacher by the School Board since 1998, approximately two and a half years.
Prior to the incidents that are the subject of this proceeding, Mr. Guzman had never been the subject of a School Board personnel investigation.
The February 16, 2001, Incident
On February 16, 2001, Mr. Guzman was handing out reading logs in a FCAT preparation class at Edison. The students in the class were seventh graders. Sherwin JeanPierre, a student in the class, and another student asked their fellow student, Maurice Barnhill to get their reading logs from
Mr. Guzman.
Maurice picked up the logs, but was confronted by
Mr. Guzman who, when he learned that Maurice was picking up logs for others, snatched the logs out of his hands and told him to return to his seat.
An argument between Mr. Guzman and Maurice ensued. The teacher and student yelled at each other, Mr. Guzman forcefully pushed Maurice on the shoulder, and Mr. Guzman said "coño" to Maurice, which means "damn" in Spanish.
Mr. Guzman eventually became so angry that he grabbed a wooden stool located between him and Maurice, swung it toward Maurice, and hit Maurice on the leg with the stool. While the stool hurt Maurice, he suffered no significant injury.
The Second February 2001 Incident
Following the February 16, 2001, incident, Mr. Guzman and another student were involved in a verbal confrontation. The situation was defused by Theron Clark, an Assistant Principal at Edison, and a security monitor.
Following the confrontation, Mr. Clark and Dr. Peggy Henderson Jones, another Assistant Principal, met with
Mr. Guzman. At this meeting, Mr. Guzman indicated that he was very stressed and did not want to return to his class.
Mr. Guzman was allowed to go home the day of the incident and was subsequently referred to the Employee Assistance Program.
Disciplinary Action Against Mr. Guzman for the February 16, 2001, Incident
A conference-for-the-record (hereinafter referred to as the "conference") was held with Mr. Guzman on March 6, 2001,
by Ronald D. Major, the Principal at Edison. The conference was attended by Mr. Major, Mr. Theron, Eduardo Sacarello, a United Teachers of Dade representative, and Mr. Guzman.
The purpose of the conference was to discuss
Mr. Guzman's non-compliance, during the February 16, 2001, incident with Maurice Barnhill, with school rules, School Board Rules 6Gx13-5D-1.07, dealing with corporal punishment, and 6Gx13-4A-1.21, dealing with employee conduct, and the Collective Bargaining Agreement between the School Board and the United Teachers of Dade.
During the conference, Mr. Guzman was advised that a letter of reprimand would be issued, and he was directed to immediately implement procedures for the removal of disruptive students consistent with the faculty handbook. Mr. Guzman was also warned that any recurrence of the type of violation committed by him during the February 16, 2001, incident would result in further disciplinary action.
A written reprimand to Mr. Guzman was issued on
March 7, 2001, by Mr. Major. In the reprimand, Mr. Major again warned Mr. Guzman that any recurrence of the infraction would result in additional disciplinary action.
The April 25, 2001, Incident
On April 25, 2001, during a class under Mr. Guzman's supervision, Mr. Guzman caused a document to be printed from a
class computer. A student took the paper and gave it to another student in the class, Ian Lightbourne, who asked for the paper.
Ian placed the paper, even though it did not belong to him, in his book bag.
When Mr. Guzman came to retrieve the paper he had printed, found it was gone, and asked if anyone knew what had happened to it. Although no one answered, Mr. Guzman suspected Ian and asked him to open his book bag. Ian complied and
Mr. Guzman found the paper.
Mr. Guzman became irate and began yelling at Ian to "not touch my things." Mr. Guzman then grabbed Ian by the arm and started to pull him toward the front of the classroom. Ian, who was sitting on a stool, lost his balance and fell to his knees. Mr. Guzman continued to pull Ian, who began to cry and yell, "Let me go," the length of the classroom on his knees.
Mr. Guzman pulled Ian to a corner of the classroom where he banged Ian's arm against a metal darkroom door.
Ian had previously broken the arm that Mr. Guzman grabbed and had only recently had the cast removed.
Although the incident did not result in any serious injury to Ian, it was painful and caused his mother to seek medical attention for her son.
On April 27, 2001, as a result of the April 25, 2001, incident, Mr. Guzman was assigned to alternative work at his
residence, with pay. Mr. Guzman was not allowed to have any contact in his assignment with students.
On August 14, 2001, the County Court in and for Dade County, Florida, entered a "Stay Away Order" in Case
No. M0130143 requiring that Mr. Guzman stay away from, and have no contact with, Ian.
Disciplinary Action Against Mr. Guzman for the April 25, 2001, Incident
On August 29, 2001, another conference-for-the-record (hereinafter referred to as the "second conference") was held. The second conference was attended by Julia F. Menendez, Regional Director, Region IV Operations of the School Board; Sharon D. Jackson, District Director; and Mr. Guzman. The second conference was held at the School Board's Office of Professional Standards.
The second conference was conducted to discuss
Mr. Guzman's performance assessments, non-compliance with School Board policies and rules regarding violence in the workplace and corporal punishment, insubordination, noncompliance with site directives regarding appropriate use of discipline techniques, violation of the Code of Ethics and Professional Responsibilities, and Mr. Guzman's future employment with the School Board.
At the conclusion of the second conference, Mr. Guzman was informed that his alternative work assignment would be continued, that his actions would be reviewed with the Superintendent of Region IV Operations, the Assistant Superintendent in the Office of Professional Standards, and Edison's principal, and he was directed to refrain from touching, grabbing, hitting, or dragging any student for any reason.
Subsequent to the second conference, the School Board's Office of Professional Standards concluded that Mr. Guzman had violated School Board and state rules.
Therefore, an agenda item recommending dismissal of Mr. Guzman was prepared for the School Board to consider. That agenda item was discussed with Mr. Guzman on October 16, 2001, and was considered at the School Board's meeting of October 24, 2001.
At its October 24, 2001, meeting, the School Board suspended Mr. Guzman without pay and approved the initiation of dismissal proceedings against him.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2000).
Because this case is a proceeding to terminate Mr. Guzman's employment with the School Board and does not
involve the loss of a license or certification, the School Board has the burden of proving the allegations in the Notice of Specific Charges by a preponderance of the evidence. McNeill v. Pinellas County School Board, 678 So. 2d 476 (Fla. 2d DCA 1996); Allen v. School Board of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA 1990); and Dileo v. School Board of Lake County, 569
So. 2d 883 (Fla. 3d DCA 1990).
Section 230.23(5)(f), Florida Statutes (1999), provides that a school board has the power to suspend and dismiss employees as follows:
(f) Suspension and dismissal and return to annual contract status.--Suspend, dismiss, or return to annual contract members of the instructional staff and other school employees; however, no administrative assistant, supervisor, principal, teacher, or other member of the instructional staff may be discharged, removed or returned to annual contract except as provided in chapter 231.
Prior to his suspension, Mr. Guzman was employed with the School Board under an annual service contract. Termination of his employment is, therefore, governed by Section 231.36, Florida Statutes (1999), which provides in pertinent part:
(1)(a) Each person employed as a member of the instructional staff in any district school system shall be properly certificated pursuant to s. 231.17 or employed pursuant
to s. 231.1725 and shall be entitled to and shall receive a written contract as specified in chapter 230. All such contracts, except continuing contracts as specified in subsection (4), shall contain provisions for dismissal during the term of the contract only for just cause. Just cause includes, but is not limited to, the following instances, as defined by rule of the State Board of Education: misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.
. . . .
(6)(a) Any member of the instructional staff, excluding an employee specified in subsection (4), may be suspended or dismissed at any time during the term of the contract for just cause as provided in paragraph (1)(a). . . .
The Notice of Specific Charges alleges that, based upon the factual allegations contained therein, just cause exists to terminate Mr. Guzman's employment with the School Board. In particular, it is alleged that Mr. Guzman's conduct constituted misconduct in office (Count IV), gross insubordination and willful neglect of duties (Count V), immorality (Count VI), and was in violation of School Board rules pertaining to employee conduct (Count I), corporal punishment (Count II), and violence in the workplace
(Count III).
"Whether a particular action constitutes a violation of a rule . . . 'is a factual question to be decided in the
context of the alleged violation.'" McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995)(quoting Langston v.
Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995)). See also Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985)(Whether there was a deviation from the required standard of conduct is not a conclusion of law, it is an ultimate finding of fact within the fact-finding discretion of the hearing officer.)
The charges against Mr. Guzman are premised on the factual allegation that he pushed and/or hit a student on February 16, 2001, with a chair and that, despite instructions to refrain from inappropriate discipline and physical contact with students, he grabbed a student by the wrist, dragged him along the floor of his classroom, and hit his arm on a metal door.
In Count IV, the School Board alleges that Mr. Guzman is guilty of misconduct in office. "Misconduct in office" is defined in Rule 6B-4.009, Florida Administrative Code, as
follows:
(3) Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, FAC., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, FAC., which is so serious as to impair the individual's effectiveness in the school system.
The School Board's charge that Mr. Guzman committed misconduct in office is predicated on allegations that he violated Rule 6B-1.001(1),(2) and/or (3), Florida Administrative Code, and Rule 6B-1.006(3)(a), (e), and/or (f), Florida Administrative Code.
Rule 6B-1.001, Florida Administrative Code, the Code of Ethics of the Education Profession, provides in pertinent part:
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 evidence in this case established that
Mr. Guzman's treatment of Maurice and Ian was inconsistent with the requirement of Rule 6B-1.001(1), Florida Administrative
Code, that he value the worth and dignity of every person; was inconsistent with the requirement of Rule 6B-1.001(2), Florida Administrative Code, that his primary professional concern was to always be for his students; and was inconsistent with the requirement of Rule 6B-1.001(3), Florida Administrative Code, that he be aware of the importance of maintaining the respect and confidence of his colleagues, students, parents, and other members of the community.
Rule 6B-1.006, Florida Administrative Code, the Principles of Professional Conduct for the Education Profession in Florida, provides in pertinent part:
The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.
Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator's certificate, or the other penalties as provided by law.
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.
The evidence in this case proved that Mr. Guzman's treatment of Maurice and Ian was inconsistent with the requirement of Rule 6B-1.006(3), Florida Administrative Code, that he make reasonable efforts to protect students from conditions harmful to learning and the student's mental and/or physical health and/or safety; and that he not intentionally expose a student to unnecessary embarrassment. The evidence failed to prove that Mr. Guzman's conduct intentionally violated or denied a student's legal rights.
The School Board's charge that Mr. Guzman committed an act of immorality and that he is guilty of gross insubordination and willful neglect of duty is predicated on allegations that he violated Rule 6B-4.009(2), and (4), Florida Administrative Code, respectively:
The basis for charges upon which dismissal action against instructional personnel may be pursued are set forth in Section 231.36, Florida Statutes. The basis for each of such charges is hereby defined:
. . . .
(2) Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.
. . . .
(4) Gross insubordination or willful neglect of duties is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.
The evidence in this case proved that Mr. Guzman's treatment of Maurice and Ian was inconsistent with the standards of public conscience and good morals. No student deserves to be shoved, hit with a stool, and cursed at for simply failing to follow instructions. Nor does any student deserve to be dragged by the arm on his knees across the length of a classroom because of a paper which could just have easily been printed again. His conduct has been sufficiently notorious, as evidenced by the entry of a "Stay Away Order," to bring Mr. Guzman into public disgrace and disrespect, and to impair his service in the community.
The evidence in this case failed to prove that Mr. Guzman is guilty of gross insubordination or willful neglect. In order to constitute "gross insubordination" or "willful neglect" a teacher's conduct must be more than an
isolated incident of refusing to comply with an order; indeed, it must be on a constant or continuing basis. Smith v. School
Board of Leon County, 405 So. 2d 183, 185 (Fla. 1st DCA 1981). "Constant" has been defined as continually recurring and persistent. Rutan v. Pasco County School Board, 435 So. 2d 399, 400 (Fla. 2d DCA 1983).
Mr. Guzman was warned about his conduct, reprimanded, and directed not to use physical force to discipline his students after the February 16, 2001, incident with Maurice and another incident, which did not involve physical contact with a student, that same month. Thus, Mr. Guzman only failed to comply with a single order to desist from physical contact with students when the incident with Ian took place. Mr. Guzman's actions were not sufficiently recurring and persistent to be considered "gross" insubordination or willful neglect.
Counts I, II, and III of the Notice of Specific Charges, allege that Mr. Guzman has violated School Board Rules. In particular, it has been alleged that Mr. Guzman's conduct violated School Board Rules 6Gx13-4A-1.21, 6Gx13-5D-1.07, and 6Gx13-4-1.08.
School Board Rule 6Gx13-4A-1.21, provides in pertinent part:
1. Employee conduct.
All persons employed by The School Board of Miami-Dade County, Florida, are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system.
Unseemly conduct or the use of abusive and/or profane language in the workplace is expressly prohibited.
The evidence in this case proved that Mr. Guzman's treatment of Maurice and Ian did not "reflect credit" upon himself or the school system. His conduct was unseemly and he used profane language in the workplace contrary to School Board Rule 6Gx13-4A-1.21.
School Board Rule 6Gx13-5D-1.07, provides: 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.
While the evidence in this case clearly proved that Mr. Guzman committed violent acts against Maurice and Ian, it is unreasonable to characterize his actions as "corporal
punishment." Instead, Mr. Guzman's actions were simply inappropriate acts of violence prohibited, not by School Board Rule 6Gx13-5D-1.07, but by School Board Rule 6Gx13-4-1.08, which is discussed, supra. Mr. Guzman did not, therefore, violate Rule 6Gx13-5D-1.07.
School Board Rule 6Gx13-4-1.08, provides: VIOLENCE IN THE WORKPLACE
Nothing is more important to Dade County Public Schools (DCPS) than protecting the safety and security of its students and employees and promoting a violence-free work environment. Threats, threatening behavior, or acts of violence against students, employees, visitors, guests, or any other individuals by anyone on DCPS property will not be tolerated. Violations of this policy may lead to disciplinary action which includes dismissal, arrest, and/or prosecution.
Any person who makes substantial threats, exhibits threatening behavior, or engages in violent acts on DCPS property shall be removed from the premises as quickly as safety permits, and shall remain off DCPS premises pending the outcome of an investigation. DCPS will initiate an appropriate response. This response may include, but it is not limited to, suspension and/or termination of any business relationship, reassignment of job duties, suspension or termination of employment, and/or criminal prosecution of the person or persons involved.
Dade County Public Schools employees have a right to work in a safe environment.
Violence or the threat of violence by or against students and employees will not be tolerated.
Mr. Guzman's treatment of Maurice and Ian clearly violated School Board Rule 6Gx13-4-1.08. Mr. Guzman, in a rage, shoved Maurice and then struck him with a wooden stool.
Mr. Guzman, with his temper out of control, grabbed Ian, pulling him to his knees, and then dragging him crying the length of the classroom where he struck his arm against the darkroom door.
Such actions, pursuant to good sense and School Board Rule 6Gx13-4-1.08 "will not be tolerated."
Based on the findings of fact herein, the School Board has satisfied its burden of proving that Mr. Guzman committed misconduct in office in violation of Rule 6B-4.009(2), Florida Administrative Code, by violating Rules 6B-1.001(1), (2), and (3), and 6B-1.006(3)(a) and (e), Florida Administrative Code; committed acts of immorality in violation of Rule 6B-4.009(2), Florida Administrative Code; and violated School Board Rules 6Gx13-4A-1.21 and 6Gx13-4.1.08. The School Board failed to prove that Mr. Guzman violated Rules 6B-1.006(3)(f) or 6B- 4.009(4), Florida Administrative Code, or School Board Rule
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the decision of the School Board of Miami-Dade County, Florida, suspending Angel Guzman without pay
be sustained and that his employment with the School Board of Miami-Dade County, Florida, be terminated.
DONE AND ENTERED this 27th day of March, 2002, in Tallahassee, Leon County, Florida.
LARRY J. SARTIN
Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 2002.
Madelyn P. Schere, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400
Frank E. Freeman, Esquire 666 Northeast 125th Street Suite 238
Merrett R. Stierheim, Superintendent Miami-Dade County School Board
Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08
James A. Robinson, General Counsel Department of Education
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.
