STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-4238

)

RICKY WOODS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on January 6, 2010, by video teleconference, with the parties appearing in West Palm Beach, Florida, before Patricia M. Hart, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, who presided in Tallahassee, Florida.

APPEARANCES

For Petitioner: Vicki L. Evans-Paré, Esquire

Palm Beach County School Board Post Office Box 19239

West Palm Beach, Florida 33416-9239

For Respondent: Matthew E. Haynes, Esquire

Johnson, Haynes & Miller, P.A.

241 Almyra Drive

Lake Mary, Florida 32746

Jeffrey Scott Sirmons, Esquire Johnson, Haynes & Miller, P.A.

510 Vonderburg Drive, Suite 305 Brandon, Florida 33511

STATEMENT OF THE ISSUE

Whether the Respondent committed the violations alleged in the Petition dated August 6, 2009, and, if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

In a Petition dated August 6, 2009, the Palm Beach County School Board ("School Board") requested that Ricky Woods be suspended without pay and terminated from employment with the School Board. In the introductory paragraph of the Petition, the School Board stated:

Pursuant to the due process provisions of Florida Statutes Sections 120.569, 120.57, 1012.22(1)(f), 1012.27(5) and

Administrative Code 6B-1.001, Code of Ethics of the Education Profession in Florida,

6B-1.006, Principles of Professional Conduct for the Education Profession in Florida, and 6B-4.009, Criteria for Suspension and Dismissal, Palm Beach County School District Policies 0.01(2)(c), 1.013 and 3.27, as well as Administrative Directive 3.27, the School District files this Petition for Suspension Without Pay and Dismissal from Employment of Respondent, Ricky Woods, from his employment from the School District for violating the code of ethics and professional conduct, as well as School Board Administrative Directive 3.27. Specifically, Respondent failed to exercise best professional judgment, engaged in inappropriate physical force on a student, and engaged in inappropriate interaction with student(s), thereby precluding Respondent from meeting the School District's minimum standards for continuing employment in the School District, constituting just cause for suspension and dismissal under Florida

Statutes Section 1012.33; Florida Administrative Code 6B-4.009; and Article 2, Section M of the Collective Bargaining Agreement between the Palm Beach County Classroom Teachers Association and the School Board of Palm Beach County.

In paragraphs 29 and 30 of the Petition, the School Board charged Mr. Woods specifically with having violated Florida Administrative Code Rules 6B-6.001(2) and 6B-1.006(3)(a). The School Board based these alleged violations on factual allegations that Mr. Woods had, on two occasions in late January and early February 2009, used inappropriate physical

force on two students in his kindergarten class, on one occasion in the classroom and on the other occasion on the playground.

Mr. Woods timely requested an administrative hearing, and the School Board transmitted the matter to the Division of Administrative Hearings for assignment of an administrative law judge. The final hearing was held on January 9, 2010.

At the hearing, the School Board presented the testimony of Mr. Woods, Vivian Mullins, and Angelette Green; Petitioner's Exhibits 1, 2, 4, 7, 9, 10, 15, 17, 20, 22, 23, and

28 through 35, were offered and received into evidence.

Petitioner's Exhibits 2, 4, 10, 11, 15, 17, 23, and 24 were received over objections on the basis of hearsay, and the parties were advised that the use of the hearsay evidence would be governed by the limitations set forth in

Section 120.57(1)(c), Florida Statutes ("Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.").

Mr. Woods testified in his own behalf and presented the testimony of Mark Wilensky; Respondent's Exhibits 1 through 12 were offered and received into evidence. Respondent's Exhibit 8 is the transcript of the deposition of student B.M.; Respondent's Exhibit 9 is the transcript of the deposition of student G.M.; Petitioner's Exhibit 10 is the transcript of the deposition of student K.K.; and Respondent's Exhibit 11 is the transcript of the deposition of student J.C. The deposition testimony of these students was received into evidence in lieu of live testimony upon the agreement of the parties.

The transcript of the proceedings was filed with the Division of Administrative Hearings on January 25, 2010. An extension of time for filing proposed recommended orders until March 16, 2010, was granted upon the Petitioner's motion, to which the Respondent did not object. The parties timely filed proposed findings of fact and conclusions of law, which have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

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

1. The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Article IX, Florida Constitution; § 1001.32, Fla. Stat. (2009).1 Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat.

2. Mr. Woods has been a teacher with the School Board since 2004 and has met the NCLB Highly Qualified Standards for Elementary Education, K-6. At the times pertinent to this proceeding, he was employed under a professional service contract as a kindergarten teacher at Rosenwald Elementary School in South Bay, Florida.2

3. As a classroom teacher in Palm Beach County, Mr. Woods' employment is subject to the Collective Bargaining Agreement Between The School District of Palm Beach County, Florida and the Palm Beach County Classroom Teacher's Association ("Collective Bargaining Agreement").

4. Disciplinary action was taken against Mr. Woods by the School Board prior to the events giving rise to this proceeding. On March 07, 2007, the School Board issued a Written Reprimand

   to Mr. Woods for using unnecessary physical force on a student. In the reprimand, Mr. Woods was "directed to cease such conduct immediately" and "to desist from engaging in the same or similar conduct in the future." Mr. Woods was advised that, if he failed to do so, he would be subject to "further disciplinary action up to and including termination."

5. On January 28, 2009, an incident occurred in Mr. Woods' kindergarten classroom during the portion of the school day when Mr. Woods read the class a book and the students participated with questions and discussion. Mr. Woods observed student B.M. fighting with and punching another student. Mr. Woods made physical contact with B.M. when he separated the two boys and when he led B.M. to an area of the carpet where Mr. Woods told

   B.M. to sit in time-out. B.M. did not request any medical attention as a result of this incident, and there was no indication that B.M. suffered bruising or any type of injury as a result of Mr. Woods' actions.

6. A second incident involving Mr. Woods and student J.C. occurred on February 3, 2009. The incident occurred during recess, close to the end of the school day, when Mr. Woods' students were on the playground. J.C. ran past other students filing onto the playground to the slide. Mr. Woods had previously placed J.C. in time-out, and J.C. had been told to sit on the playground with several other students who were also

   in time-out. As J.C. slid down the slide, Mr. Woods moved to the end of the slide to intercept J.C. so he could lead J.C. to the area where the other students were sitting in time-out.

   When J.C. reached the end of the slide and stood up, Mr. Woods reached for him, but J.C. went limp and began falling to the ground. Mr. Woods grabbed J.C.'s jacket to keep him from falling to the ground and possibly injuring himself on the end of the slide.3

7. The School Board conducted investigations of the allegations against Mr. Woods, and, after going through all of the pre-disciplinary steps required by the collective bargaining agreement, the Superintendent of the Palm Beach County school system issued a Notice of Suspension and Recommendation for Termination from Employment dated June 25, 2009, advising

   Mr. Woods that he intended to recommend to the School Board that he be suspended without pay and his employment with the School Board terminated at the July 22, 2009, School Board meeting.

8. Article II, Section M of the collective bargaining agreement governs the discipline of employees. Article II, Section M1. of the Collective Bargaining Agreement provides: "Without the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and

   convincing evidence which supports the recommended disciplinary action."

   Summary and findings of ultimate fact

   
   

9. The School Board failed to present sufficient credible and persuasive evidence to establish with the requisite degree of certainty that Mr. Woods is guilty of the conduct with which he has been charged in the Petition. For the reasons stated in Endnote 3, the evidence presented by the School Board is not sufficient to produce a firm conviction in the mind of this trier of fact that the School Board's allegations that Mr. Woods used excessive physical force during the playground incident involving Mr. Woods and J.C. are true.

10. The evidence presented by the School Board is, likewise, not sufficient to cause this trier of fact to believe without hesitancy and with a firm conviction that the School Board's allegations that Mr. Woods used excessive physical force during the January 28, 2009, incident involving B.M. are true. The only evidence presented by the School Board relating to the charges that Mr. Woods used excessive physical force to break up a fight between B.M. and one of his classmates was Mr. Woods' live testimony and the transcript of B.M.'s deposition testimony, which was placed into evidence in lieu of his live testimony.4 Mr. Woods' testimony that he did not use excessive physical force on B.M. but made only as much physical contact

    with B.M. as was required to separate him and his classmate and to lead B.M. to the area in which B.M. would spend his time-out period is credited over that of B.M.

11. B.M.'s deposition testimony that, when breaking up the fight, Mr. Woods grabbed his shirt and pulled and pushed him back and forth, striking his chest several times, is not sufficiently persuasive to convince this trier of fact to credit B.M.'s version of events rather than Mr. Woods' version. The credibility and weight of B.M.'s deposition testimony was diminished by the failure of either attorney to establish on the record that B.M. knew the difference between the truth and a lie and felt an obligation to tell the truth, see J.B.J. v. State,

    17 So. 3d 312 (Fla. 1st DCA 2009); by B.M.'s persistent fear that he was going to be sent to jail; by the prompting of B.M. by Ms. B., who attended the deposition and is presumably

    B.M.'s mother or a close relative, to tell "everything you came home . . . and told me"; and by the explanations given to B.M. during the deposition that the purpose of the deposition was to find out if Mr. Woods had done something wrong and if he was in trouble and should be punished. In addition, B.M.'s deposition testimony is not corroborated by the testimony of the three classmates whose deposition testimony was received into evidence in lieu of their live testimony or by the testimony of any third party. Finally, B.M. gave a confused account of the events

    leading up to Mr. Woods' alleged use of excessive force but, at the same time, recited verbal exchanges he had purportedly had with the boy with whom he was fighting, the effect of which was to give the impression that B.M. did not recall the incident with Mr. Woods and was telling a story. For these reasons, B.M.'s testimony is not sufficiently credible or persuasive to support a finding that Mr. Woods used excessive physical force when separating B.M. and his classmate on January 28, 2009.

    CONCLUSIONS OF LAW

    
    

12. 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.

13. Pursuant to the terms of the Collective Bargaining Agreement, the School Board must have just cause to terminate Mr. Woods' employment, and it must prove the allegations in the Petition by clear and convincing evidence.

14. In Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA 1989), the court explained:

    [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The

    evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of conviction, without hesitancy, as to the truth of the allegations sought to be established.

    Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

    
    

    Judge Sharp, in her dissenting opinion in Walker v. Florida Department of Business and Professional Regulation, 705 So. 2d 652, 655 (Fla. 5th DCA 1998)(Sharp, J., dissenting), reviewed several pronouncements on clear and convincing evidence:

    Clear and convincing evidence requires more proof than preponderance of evidence, but less than beyond a reasonable doubt. In re Inquiry Concerning a Judge re Graziano,

    696 So. 2d 744 (Fla. 1997). It is an intermediate level of proof that entails both qualitative and quantative [sic] elements. In re Adoption of Baby E.A.W., 658 So. 2d 961, 967 (Fla. 1995), cert.

    denied, 516 U.S. 1051, 116 S. Ct. 719, 133

    L. Ed. 2d 672 (1996). The sum total of evidence must be sufficient to convince the trier of fact without any hesitancy. Id. It must produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. Inquiry Concerning Davie, 645 So. 2d 398, 404 (Fla. 1994).

    
    

15. Based on the findings of fact herein, the School Board has failed to carry its burden of proving by clear and convincing evidence that Mr. Woods committed the acts alleged in the School Board's Petition. The School Board has, therefore, failed to prove that it has just cause to suspend Mr. Woods without pay and to terminate his employment.5

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order dismissing the Petition filed against

Ricky Woods, immediately reinstating him, and awarding him back salary for the period of his suspension, as provided in

Section 1012.33(6)(a), Florida Statutes.

DONE AND ENTERED this 23rd day of April, 2010, in Tallahassee, Leon County, Florida.

PATRICIA M. HART

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 23rd day of April, 2010.

ENDNOTES

1/ References herein to the Florida Statutes shall be to the 2009 edition unless otherwise indicated.

2/ Neither Mr. Woods nor the School Board presented evidence regarding the nature of his employment contract with the School Board, but he was employed subsequent to 1984 and, therefore, would not be under a continuing contract. See

§ 1012.33(4)(A), Fla. Stat.

3/ Mr. Woods' description of the incident involving J.C. is accepted as more credible and persuasive than the account given by Vivian Mullins in her testimony. Ms. Mullins, a child protective investigator with the Department of Children and Family Services, testified that she saw Mr. Woods grab J.C. by the jacket when he reached the bottom of the slide and forcefully slam him to the ground. At the time, Ms. Mullins was already predisposed to believe Mr. Woods used violence on his students because she was on the grounds of Rosenwald Elementary School to investigate a complaint about the January 28, 2009, incident involving B.M. She also observed the incident from a distance of approximately 90 feet. In addition, Ms. Mullins' version of the incident was not corroborated by J.C. or any of the students whose testimony was offered by deposition transcript at the final hearing.

4/ The remaining evidence presented by the School Board related to this incident consisted of the investigation reports of two officers of the Palm Beach County School Police Department and summaries prepared from those reports. The investigation reports are hearsay, and the information contained in these reports consists of summaries of interviews the police officers had with various persons, which information is hearsay within hearsay. The School Board failed to establish that these documents would be admissible over objection in a civil proceeding, and, consequently, the information contained in these documents cannot support findings of fact in this Recommended Order. See § 120.57(1)(c), Fla. Stat. ("Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.").

5/ As quoted above in the Preliminary Statement, the Petition filed by the School Board contains an introductory paragraph that includes a recitation of numerous statutes, rules, and School Board policies pursuant to which the School Board sought to suspend Mr. Woods and terminate his employment. The only specific violations charged, however, are found in paragraphs 29 and 30 of the Petition, in which the School Board charged that Mr. Woods violated Florida Administrative Code Rules 6B-1.001(2) and 6B-1.006(3)(a).

Section 1012.33, Florida Statutes, provides in pertinent part:

(1)(a) Each person employed as a member of the instructional staff in any district school system shall be properly certified pursuant to s. 1012.56 or s. 1012.57 or employed pursuant to s. 1012.39 and shall be entitled to and shall receive a written contract as specified in this section. 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: immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any 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 definitions of the categories of "just cause" identified in Section 1012.33(1)(a), Florida Statutes, are set forth in Florida Administrative Code Rule 6B-4.009, which provides that "[t]he basis for charges upon which dismissal action against instructional personnel may be pursued are set forth in Section 231.36, Florida Statutes [now codified in Section 1012.33, Florida Statutes]." There is nothing in the Florida Statutes providing that School Board employees are subject to suspension or dismissal for failing to adhere to any specific provision of the Code of Ethics of the Education Profession as adopted in Florida Administrative Code Rule 6B-1.001, or to the Principles of Professional Conduct for the Education Profession in Florida as adopted in Florida Administrative Code Rule 6B-1.006.

At the final hearing and in his Proposed Recommended Order, Mr. Woods argued that, on its face, the School Board had failed to charge Mr. Woods with a violation which would constitute just cause for his suspension and termination. Because of the finding that the School Board failed to prove the factual allegations of wrongdoing, it is not necessary to address this argument, but the School Board should be cognizant of the requirement that charging documents must allege with specificity the statutory violations with which a person is being charged.

See Marcellin v. Department of Business and Professional Regulation, 753 So. 2d 745 (Fla. 3d DCA 2000)(court struck statutory violations in final order that were not charged in administrative complaint).

COPIES FURNISHED:

Dr. Arthur C. Johnson, Superintendent Palm Beach County School Board

3340 Forest Hill Boulevard, C316 West Palm Beach, Florida 33406-5869

Deborah K. Kearney, General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Dr. Eric Smith, Commissioner of Education Department of Education

Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Vicki L. Evans-Paré, Esquire Palm Beach County School Board Post Office Box 19239

West Palm Beach, Florida 33416-9239

Matthew E. Haynes, Esquire Johnson, Haynes & Miller, P.A.

241 Almyra Drive

Lake Mary, Florida 32746

Jeffrey Scott Sirmons, Esquire Johnson, Haynes & Miller, P.A.

510 Vonderburg Drive, Suite 305 Brandon, Florida 33511

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 09-004238TTS

Orders for Case No: 09-004238TTS