STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MIAMI-DADE COUNTY SCHOOL BOARD, )
)
Petitioner, )
)
vs. ) Case No. 10-9324
)
JUDITH GREY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was conducted in this case pursuant to sections 120.569 and 120.57(1), Florida Statutes,1 before Stuart M. Lerner, a duly-designated administrative law judge of the Division of Administrative Hearings (DOAH), on December 16, 2010, by video teleconference at sites in Miami and Tallahassee, Florida.
APPEARANCES
For Petitioner: Christopher J. La Piano, Esquire
Assistant School Board Attorney Miami-Dade County School Board
1450 Northeast Second Avenue, Suite 430
Miami, Florida 33132
For Respondent: Mark Herdman, Esquire
29605 U.S. Highway North, Suite 110
Clearwater, Florida 33761
STATEMENT OF THE ISSUE
Whether Respondent committed the violations alleged in the Amended Notice of Specific Charges and, if so, what disciplinary action should be taken against her.
PRELIMINARY STATEMENT
By letter dated September 8, 2010, from Miami-Dade County School Board (School Board) Assistant Superintendent Maria Teresa Rojas, Respondent was notified that the School Board had taken action to suspend her for 30 workdays (from September 8, 2010, through October 19, 2010) from her teaching position at Ludlam Elementary School. Respondent (through her union representative) thereafter "request[ed] a hearing [on the matter] to be held before an administrative law judge." Respondent's hearing request was referred to DOAH on
September 28, 2010.
The School Board filed a Notice of Specific Charges on September 28, 2010, and an Amended Notice of Specific Charges (Amended Notice) on November 19, 2010. The Amended Notice alleges that Respondent violated School Board Rule 6Gx13-4A-1.21 (Count I) and School Board Rule 6Gx13-4A-1.213 (Count II) by engaging in the following conduct (described in paragraphs 9 through 12 of the Amended Notice):
On or about February 25, 2010 two (2) female students were physically fighting during [Respondent's second grade] class [at
Ludlam Elementary School]. Respondent restrained one (1) of the female students. Respondent then let the other unrestrained student strike the restrained student with an open hand.
During a counseling session with the Ludlam principal, Dr. Georgette Menocal (hereinafter "Dr. Menocal"), the two (2) female students disclosed the occurrence of the altercation. Dr. Menocal notified both Miami-Dade Schools Police Department and the Department of Children and Families about the incident.
Respondent failed to submit Student Case Management forms documenting the altercation between the two (2) students.
Additionally, several parents indicated to Dr. Menocal that Respondent had been discussing the incident and subsequent investigation.
According to the Amended Notice, these School Board Rule violations gave the School Board "just cause" to "suspend Respondent for thirty (30) workdays without pay."
As noted above, the final hearing in the instant case was held on December 16, 2010. Six witnesses testified at the hearing: J. M., M. M., Donald Machacon, Dr. Georgette Menocal,
G., and Respondent. In addition to the testimony of these six witnesses, 22 exhibits (Petitioner's Exhibits 1 through 21, and Respondent's Exhibit 12), were offered and received into evidence.
At the conclusion of the hearing, the undersigned announced, on the record, that the parties would have 10 days
from the date of the filing of the hearing transcript with DOAH to file their proposed recommended orders.
The hearing Transcript (consisting of one volume) was filed with DOAH on January 27, 2011.
On February 7, 2011, the parties filed a motion jointly requesting that the deadline for the filing of proposed recommended orders be extended to February 28, 2011. By Order issued that same day, the motion was granted.
Respondent and Petitioner timely filed their Proposed Recommended Orders on February 28, 2011.
FINDINGS OF FACT
Based on 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 (including, among others, Ludlam Elementary School (Ludlam)), and for otherwise providing public instruction to school-aged children in the county.
Respondent has approximately 30 years of teaching experience, and has been a classroom teacher for the School Board since December 1999. As a School Board employee, she has not been the subject of any disciplinary action aside from the 30-workday suspension that is being contested in the instant case.
Respondent is currently co-teaching a kindergarten class at Ludlam, the only school at which she has taught during her employment with the School Board.
For the eleven years she has been at Ludlam, Respondent has been a kindergarten teacher exclusively, except for the
2009-2010 school year, when she taught second grade. Among the second graders in her class that school year were A. H., A. P., and J. M.3
Dr. Georgette Menocal is now, and was during the 2009- 2010 school year, the principal of Ludlam.
At a Ludlam faculty meeting, attended by Respondent, that was held at the beginning of the 2009-2010 school year, Dr. Menocal gave a PowerPoint presentation in which she reviewed, for those in attendance, key provisions of Ludlam's 2009-2010 Faculty/Staff Handbook (Handbook), including the following excerpt relating to "Classroom Management Procedures":
CLASSROOM MANAGEMENT PROCEDURES
Teachers should make every effort to handle routine classroom discipline problems by conferring with the student, contacting parents, and referring the student to the counselor.
If a serious violation of school rules has occurred, a "Student Case Management Referral Form" should be completed and forwarded to the administration. A response will be forthcoming.
* * *
It is the teacher's responsibility to manage his/her class and to follow the procedures outlined in the Code of Student Conduct.
All level 1 behaviors are to be addressed by the teacher. Most level 2 behaviors can be addressed by the teacher and/or counselor.
Level 3 (and above) behaviors require a referral to an administrator. Each student referral must be made on a Student Case Management (SCM) referral form.
The disciplinary policies of the school should be administered on a consistent basis throughout the school. The CODE OF STUDENT CONDUCT should be reviewed with students at the beginning of each school year.
NEVER
- Use corporal punishment of any kind (hitting, tapping or tying students, having students stand for long periods of time, etc.)[4]
The School Board's Code of Student Conduct-Elementary (Code) (which Ludlam teachers were directed by the Handbook to "follow") provided, among other things, that "Level 3 . . . behaviors" included "Fighting (serious)" and that "Fighting (serious)":
Occurs when two or more students engage in physical force or violence against each other and
they become so enraged that they do not stop when given a verbal command to do so,
OR
physical restraint is required,
AND/OR
someone is injured to an extent that requires immediate first aid or medical attention.
Any serious fighting incident that causes injury or requires medical attention would result in a suspension.
If the principal or designee determines that one student or a group of students attacked someone who did not fight back, the aggressors should receive punishment for battery, aggravated battery, and/or bullying, depending on the facts, and will likely be arrested. Otherwise, administrators will report all other incidents involving mutual participation as Fighting (Serious) without regard to who was the original aggressor.
On February 25, 2010, during a mathematics lesson Respondent was teaching, two female students in her class, A. H. and A. P., were involved in an altercation in the back of the classroom, during which A. H. hit A. P. with a book. Respondent intervened and separated the two girls by physically restraining
A. H., who struggled to escape Respondent's grasp. As she was holding A. H., Respondent instructed A. P. to hit A. H. back.
A. P. did as she was told, striking A. H.5 with a book.6 The incident (Incident), which lasted approximately a minute, was witnessed by J. M., who was in her seat and had turned around to observe the fracas.7
Notwithstanding that she had physically restrained
A. H., Respondent did not report the Incident to the school administration (via submission of a completed Student Case Management referral form, as required by the Handbook, or through any other means).8
Following the Incident, the students in Respondent's class left her classroom and went to their Spanish class.
Ludlam's assistant principal was subsequently called to the Spanish class. She removed A. H. and A. P. from the class and brought them to Dr. Menocal's office, where
Dr. Menocal spoke to them separately.
Both A. H. and A. P. told Dr. Menocal about their scuffle earlier that day in Respondent's classroom and how, during this tussle, Respondent had directed A. P. to hit A. H. while A. H. was being held by Respondent.
A. H. and A. P. gave Dr. Menocal, at Dr. Menocal's request, the names of three other students who may have witnessed the Incident. The three students9 were brought, separately, to Dr. Menocal's office and questioned by her. Each of the three students confirmed what A. H. and A. P. had told Dr. Menocal.
Dr. Menocal asked A. H., A. P., and two of the three other students to whom she had spoken to each write a statement in their own words describing what had happened in Respondent's
classroom earlier that day.10 They wrote their statements, separately, in Dr. Menocal's presence. In her written statement, A. H. stated, in pertinent part, "Ms. Grey hold me and then Ms. Grey told her [A. P.] to hit me and then she hit me on my back . . . ." A. P. and the two other children each wrote that Respondent had "let" A. P. "hit" A. H., but they did not specifically state in their written statements that Respondent had told A. P. to strike A. H.
After receiving these written statements from the students, Dr. Menocal contacted the School Board police and the Department of Children and Family Services (DCFS) to report what the students had related to her about the Incident.
That same day, February 25, 2010, a School Board police officer, Officer San Antonio, was dispatched to Ludlam. Officer San Antonio first spoke with Dr. Menocal and then with various students and Respondent.
The following morning, at around 9:00 a.m., Respondent's second grade class put on a performance in the school cafeteria as part of a black history month event attended by parents (Performance).
Following the Performance, Respondent invited the parents of her students to follow her and the class back to her classroom so that she could have a brief meeting with them (Post-Performance Meeting).
Respondent began the meeting by praising the students' Performance. This praise, however, was short-lived, as Respondent started to complain to the parents about the students' "misbehaving" and "acting up" in class. As an example, she cited the altercation the day before between A. H. and A. P. (without identifying them by name). Respondent told the parents that "two little girls" had "got[en] into a fight" and that she was being accused of and investigated by the police for having "held one of them and [having] told the other girl to hit [the girl being held]." Respondent then said, "And I wouldn't do that" (knowing full well that, in fact, she had done "that"), after which she asked her students (including A. H. and
A. P.) who were present in the room with the parents, "Did Mrs. Grey do that?" The students responded, in unison, "No, no."11
Respondent informed the parents that, because she "gets in trouble" when she "gets involved," she no longer would hesitate, when a student misbehaved, to prepare and submit to the principal's office a written referral that would follow the misbehaving student "all the way through high school."
Later that morning (on February 26, 2010), at approximately 11:15 a.m., a DCFS child protective investigator, Donald Machacon, arrived at Ludlam to investigate the Incident (which Dr. Menocal had reported to DCFS the day before). After
first speaking with Dr. Menocal, Mr. Machacon spoke with A. H.,
A. P., and three other students in Respondent's class.12 The last person Mr. Machacon interviewed at the school that day was Respondent.
During her interview with Mr. Machacon on February 26, 2010, A. P. stated that, although at the time of the Incident she had thought she had heard Respondent instruct her to hit
A. H., she must not have heard correctly because Respondent, earlier on February 26th, had spoken to her about the matter and denied ever having had given her such an instruction.13 A. P. attributed her having had misunderstood Respondent to Respondent's having had had a "hoarse voice" the day of the Incident.
None of the other children Mr. Machacon interviewed at the school on February 26, 2010, including A. H., claimed to have any recollection of Respondent's ever having had told A. P. to hit A. H. (although each of them did tell Mr. Machacon that
A. P. had hit A. H. while A. H. was being held by Respondent).
Respondent, in her interview, indicated that she had held A. H. in order to "break up a fight," but she denied having had told A. P. to hit A. H. during the altercation. She also denied having had spoken about the Incident earlier that day (February 26, 2010) with A. H. and A. P. She did acknowledge, however, that she had referenced the Incident in a talk she had
had with a group of parents shortly after the Performance that morning. She further acknowledged that, the day before (February 25, 2010), she had been questioned about the Incident by Officer San Antonio, who was at the school investigating the matter.
By letter dated February 26, 2010, and received by Respondent on March 1, 2010, Dr. Menocal formally informed Respondent, in writing, that "[a]n investigation [was] being conducted" of a complaint made by an unnamed "juvenile" complainant alleging that Respondent had "held" her "so that another student could hit her."
Among the parents who had attended the Post- Performance Meeting on February 26, 2010, was M. M., J. M.'s mother. M. M. left the meeting concerned about the safety of her daughter in Respondent's classroom given what Respondent had told the parents, particularly about the fight between the "two little girls" that the police had been called to the school to investigate.14 Moreover, M. M. thought that it was inappropriate for Respondent to have discussed the matter at the meeting. The following week, M. M. made arrangements to meet with Dr. Menocal so that she could air her grievances about Respondent. (These grievances were not only about what had occurred at the Post- Performance Meeting. They also concerned "classroom management issues.")
Sometime before this meeting between M. M. and
Dr. Menocal took place, M. M. learned more about the Incident from J. M. during a discussion the two had following a physical altercation between J. M. and J. M.'s sister. M. M. had initiated the discussion by asking whether J. M. believed that
J. M.'s sister had deserved to be hit by J. M., a question to which J. M. responded in the affirmative. When M. M. inquired as to why J. M. felt this way, J. M. answered, "Well, it's like in Mrs. Grey's class, when you get hit, you hit back." In response to her mother's request that she elaborate, J. M. told
M. M. about the Incident and how, after A. H. had hit A. P., Respondent had grabbed ahold of A. H., told A. P. to hit A. H. back,15 and then announced to the class, "This is what happens in Mrs. Grey's class, when you hit; you get hit back."
M. M. had her meeting with Dr. Menocal approximately a week after the Incident. During her audience with Dr. Menocal,
M. M. raised a number of complaints that she had about Respondent. She talked about, among other things, the comments and remarks Respondent had made to the parents and students in attendance at the Post-Performance Meeting, including those relating to the Incident and its aftermath.
On March 8, 2010, Respondent was temporarily reassigned, "until further notice," from Ludlam to the School
Board's Region III Office, where she engaged in "professional development" activities.
By letter dated May 18, 2010, which she received on May 19, 2010, Respondent was advised that the School Board police had completed its investigation of the Incident and found probable cause to believe that she had violated School Board Rule 6Gx13-4A-1.21. The letter further advised Respondent of her right "to file a written exception" with the School Board's Office of Professional Standards (OPS).16
Respondent submitted to OPS her "written exception," by letter dated May 25, 2010. She subsequently sent to OPS a "[r]evised [v]ersion" of this letter, which read, in pertinent part, as follows:
Pursuant to your letter dated May 18, 2010, informing me of the outcome of your investigation (SPAR #R-09002), I wish to exercise my right to provide a written exception to your findings. I take exception to your findings of probable cause to the violation because no such violation occurred. My intervention was simply to stop the aggressing child from hitting the other child and preventing a fight, possibly leading to injuries, between the two children. Below please find specific items with which I take issue . . . .
* * *
Det. Torrens also states that two students who were interviewed as witnesses told him exactly the same thing which, significantly, was not that I told one child to hit the other as the information from the
two combatants indicate. These children also provided him with previously written statements. I would like to see the original documents; to know who took the statements and who was present. I would also like the children to be interviewed on tape as to the veracity of the statements, being cognizant of the fact that these are eight year olds who often repeat what they hear or are told.[17]
I did not tell the one child to hit the other, nor did I hold one child so that the other could hit her. I was merely holding back the very aggressive child, who was struggling with me to get loose so that she could attack the other child. It was at this time that the other child, who was free, hit the child I was holding. There were seventeen children in the class at the time I separated the two girls. All seventeen children saw what happened and they all heard what happened. I would like all seventeen children to be separately interviewed on tape.
* * *
I also wish to clarify the issue of the administrative letter and the suggestion that I discussed the investigation with the parents. This incident occurred on Thursday, February 25th 2010. Officer San Antonio asked me what happened in my classroom on the very same Thursday that it occurred, and I told her that I saw one child crying and I asked her what was the matter. She told me that the other child had hit her, so I separated them. The aggressing child then got angry and wanted to fight, so I held on to her, when the other child came over and tapped her on the back. The Black History function was held on the following Friday (2/26/10). I had no discussions with any parents about the incident. In fact I was not aware that there was an investigation until
Mr. Machacon came to the school the afternoon of that same Friday, and told me there were these allegations against me. I certainly could not discuss an investigation that I did not know about.[18] Furthermore, Dr. Menocal did not give me the administrative letter until the following Monday afternoon (3/1/10) and I got assigned to the region the following Monday (3/8/10), eleven days after the incident.
I hope this letter helps to provide additional information which will aid in a more comprehensive fact gathering process to enable a fair and just review, with the concomitant overturn of the probable cause findings. These charges I take very seriously as I have dedicated my entire adult life (over thirty years) to the vocation of educating young children without a single incident. I have assiduously guarded the propriety of this noble profession and will resist any attempt to impugn my integrity or besmirch my character.
On June 2, 2010, OPS held a conference-for-the-record, at which Respondent had an opportunity to verbally respond to the probable cause finding made by the School Board police.
By letter dated July 21, 2010, Assistant Superintendent Rojas advised Respondent that OPS had made a "recommendation that [she] be suspended without pay 30 workdays via an agenda item [that would] be presented to [the School Board] at the meeting scheduled for September 7, 2010." In a subsequent letter, dated August 26, 2010, Assistant Superintendent Rojas informed Respondent that the Superintendent would be recommending to the School Board, at its scheduled
September 7, 2010, meeting, that Respondent receive a 30-workday suspension.
The School Board followed the Superintendent's recommendation and suspended Respondent without pay from September 8, 2010, through October 19, 2010. Furthermore, it directed Respondent to report to duty at Ludlam on October 20,
2010.
Respondent has served her suspension.
By letter dated September 8, 2010, Respondent
"request[ed] a hearing to be held before an administrative law judge" to contest her suspension. The matter was thereafter referred to DOAH.
A. P.'s and A. H.'s depositions were taken in anticipation of the hearing.
At her deposition, A. P. declined to answer any questions.
A. H. was deposed on December 6, 2010. When asked about the Incident, she stated that she had been hit by A. P. while being held by Respondent. It was her testimony that Respondent was simply "trying [to] keep [her and A. P.] apart," and that Respondent did not tell A. P. to hit her, an assertion that was in direct conflict with what A. H. had related to
Dr. Menocal the day of the Incident, when the matter was fresh
in A. H.'s mind and she had not yet been exposed to the remarks that Respondent would make at the Post-Performance Meeting.19
A. H. further testified during her deposition that, after the altercation, Respondent "called the office and the office came."20
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter of this proceeding and of the parties hereto pursuant to chapter 120, Florida Statutes.
"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." § 1001.32(2), Fla. Stat.
Such authority extends to personnel matters and includes the power to suspend and dismiss employees and to "adopt rules governing personnel matters." See §§ 1001.42(5), 1012.22(1)(f), and 1012.23(1), Fla. Stat.
The "rules governing personnel matters" that have been adopted by the School Board include School Board Rules 6Gx13-4A-
1.21 (dealing with "[r]esponsibilities and [d]uties") and 6Gx13-
1.213 (which prescribes a "Code of Ethics" for School Board personnel).
At all times material to the instant case, School Board Rule 6Gx13-4A-1.21I-II has provided 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.
Records and Reports
All personnel shall maintain, prepare, and submit properly all reports that may be required by State Law, State Department of Education Rules, School Board Rules, and administrative directives.[21]
At all times material to the instant case, School Board Rule 6Gx13-4A-1.213 has provided, in pertinent part, as follows:
Permanent Personnel CODE OF ETHICS
All . . . teachers . . . , because of their dual roles as public servants and educators are to be bound by the following Code of Ethics. Adherence to the Code of Ethics
will create an environment of honesty and integrity and will aid in achieving the common mission of providing a safe and high quality education to all Miami-Dade County Public School students.
As stated in the Code of Ethics of the Education Profession in Florida (State Board of Education Rule 6B-1.001):
* * *
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, students, parents, and other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.
* * *
III. FUNDAMENTAL PRINCIPLES
The fundamental principles upon which this Code of Ethics is predicated are as follows:
* * *
Cooperation – Working together toward goals as basic as human survival in an increasingly interdependent world.
Fairness – Treating people impartially, not playing favorites, being open minded, and maintaining an objective attitude toward those whose actions and ideas are different from our own.
Honesty – Dealing truthfully with people, being sincere, not deceiving them nor stealing from them, not cheating nor lying.
Integrity – Standing up for your beliefs about what is right and what is wrong and resisting social pressure to do wrong.
Kindness – Being sympathetic, helpful, compassionate, benevolent, agreeable, and gentle toward people and other living things.
* * *
Respect – Showing regard for the worth and dignity of someone or something, being courteous and polite, and judging all people on their merits. It takes three major forms: respect for oneself, respect of other people, and respect for all forms of life and the environment.
Responsibility – Thinking before you act and being accountable for your
actions . . . .
Each employee agrees and pledges:
To abide by this Code of Ethics, making the well-being of the students and the honest performance of professional duties core guiding principles.
To obey local, state and national laws, codes and regulations.
To support the principles of due process to protect the civil and human rights of all individuals.
To treat all persons with respect and to strive to be fair in all matters.
To take responsibility and be accountable for his or her actions.
To avoid conflict of interest or any appearance of impropriety.
To cooperate with others to protect and advance the District and its students.
To be efficient and effective in the delivery of job duties.
* * *
CONDUCT REGARDING STUDENTS As set forth in the Principles of
Professional Conduct for the Education Profession in Florida,[22] each employee:
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.
* * *
5.. Shall not intentionally expose a student to unnecessary embarrassment or disparagement.[23]
As an instructional employee of the School Board, Respondent is 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 (UTD Contract).
Article XXI of the UTD Contract addresses the subject of "[e]mployee [r]ights and [d]ue [p]rocess."
Section 1.A.1. of Article XXI provides that "the [School] Board and [UTD] recognize the principle of progressive discipline," that they "agree that disciplinary action may be
consistent with the concept of progressive discipline when the [School] Board deems it appropriate," and that "the degree of discipline shall be reasonably related to the seriousness of the offense."
Section 1.B.1.a. of Article XXI provides that "[a]ny member of the instructional staff may be suspended or dismissed at any time during the school year, provided that the charges against him/her are based upon Florida Statutes."
Section 1.B.2. of Article XXI provides, in part, that "[d]ismissals and suspensions shall be effected in accordance with applicable Florida Statutes, including the Administrative Procedures Act (APA) "
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." § 447.203(2), Fla. Stat. 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. § 447.209, Fla. Stat.
At all times material to the instant case, district school boards have had the right, under section 1012.33(6)(a),
Florida Statutes, to dismiss, for "just cause," teachers having professional service contracts.
At all times material to the instant case, "just cause," as used in section 1012.33, has been legislatively defined (in subsection (1)(a) of the statute) to include, "but . . . not [be] 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." The "but . . . not limited to" language in the statute makes abundantly clear that the list of things constituting "just cause" was intended by the Legislature to be non-exclusive and that other wrongdoing may also constitute "just cause" for dismissal. See Dietz v. Lee Cnty. Sch. Bd., 647 So. 2d 217, 218-19 (Fla. 2d DCA 1994)(Blue,
J., specially concurring)("We assume that drunkenness and immorality, which are not included in the non-exclusive list of sins [set forth in section 231.36(1)(a), Florida Statutes (2001), the predecessor of section 1012.33(1)(a)] constituting just cause,[24] would also be grounds for dismissal. In
amending section 231.36 and creating a new contract status for teachers (professional service) and by failing to further define just cause, the legislature gave school boards broad discretion
to determine when a teacher may be dismissed during the contract term. . . . I agree with the majority--that the legislature left that determination to the respective wisdom of each school board by providing no definite parameters to the term 'just cause.'"); see also Miami-Dade Cnty. Sch. Bd. v. Lee, Case No.
06-1074, 2006 Fla. Div. Adm. Hear. LEXIS 524 *8 (Fla. DOAH
Nov. 6, 2006)(Recommended Order)("As the statutory language suggests, the acts and omissions listed in the statute [section 1012.33], such as 'misconduct in office,' are illustrative, not exhaustive, and other acts or omissions may also constitute 'just cause.'").25
"[U]nder Florida law, a [district] school board's decision to [suspend or] 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."26 McIntyre v. Seminole Cnty.
Sch. Bd., 779 So. 2d 639, 641 (Fla. 5th DCA 2001).
Pursuant to section 1012.33(6)(a), the hearing may be conducted, "at the district school board's election," either by the district school board itself or by a DOAH 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. § 1012.33(6)(a).
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. Sch. Bd. of Dade Cnty., 426 So. 2d 1149, 1151 (Fla. 3d DCA 1983)(Jorgenson, J., concurring). The teacher may be suspended without pay pending the outcome of the disciplinary proceeding; "but, if the charges are not sustained, the employee shall be immediately reinstated, and his or her back salary shall be paid." § 1012.33(6)(a).
At the hearing, the burden is on the district school board to prove the allegations contained in the notice. Unless there is a collective bargaining agreement covering the bargaining unit of which the teacher is a member that provides otherwise (and there is no record evidence that there exists such a controlling collective bargaining agreement provision in the instant case), the district school board's proof need only meet the preponderance of the evidence standard.27 See Cisneros v. Sch. Bd. of Miami-Dade Cnty., 990 So. 2d 1179, 1183 (Fla. 3d DCA 2008)("As the ALJ properly found, the School Board had the burden of proving the allegations of moral turpitude by a preponderance of the evidence."); McNeill v. Pinellas Cnty. Sch. Bd., 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 Cnty. Sch. Bd., 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. Sch. Bd. of Dade Cnty., 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.
Sch. Bd. of Dade Cnty., 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."). This burden is not satisfied by proof creating a mere equipoise, but it does not require proof that that is clear and convincing, much less beyond a reasonable doubt. See Fitzpatrick v. Miami Beach, 328 So. 2d 578, 579 (Fla. 3d DCA
1976); and Fla. Dep't of Health and Rehab. Servs. v. Career Serv. Comm'n, 289 So. 2d 412, 415 (Fla. 4th DCA 1974).
In determining whether the district school board has met its burden of proof, it is necessary to evaluate the district school board's evidentiary presentation in light of the specific allegation(s) made in the written notice of charges. Due process prohibits a district school board from disciplining a teacher based on matters not specifically alleged in the notice of charges, unless those matters have been tried by consent. See Dep't of Revenue v. Vanjaria Enters., 675 So. 2d 252, 254 (Fla.. 5th DCA 1996)("[T]he issue must be treated as though it had been raised in the pleadings because the parties tried the issue by consent."); Pilla v. Sch. Bd. of Dade Cnty., 655 So. 2d 1312, 1314 (Fla. 3d DCA 1995); and Texton v. Hancock, 359 So. 2d 895, 897 n.2 (Fla. 1st DCA 1978).
The written notice of charges in the instant case (the Amended Notice) alleges that there existed "just cause" to suspend (for 30 workdays) Respondent's employment as a professional service contract teacher with the School Board based on Respondent's having "restrained" a female student
(A. H.) who was "physically fighting" with another female student (A. P.) and then having "let the other unrestrained student [A. P.] strike the restrained student [A. H.]"; Respondent's having "failed to submit Student Case Management
forms documenting the altercation between the two (2) students"; and Respondent's "discussing the incident and subsequent investigation," as reported by "several parents."
The School Board met its burden of proving, by a preponderance of the evidence, that Respondent engaged in this alleged conduct.
As a result of having done these things, Respondent was guilty of having violated School Board Rules 6Gx13-4A-1.21 and 6Gx13-4A-1.213, as alleged in the Amended Notice.
These rule violations gave the School Board "just cause," as defined in section 1012.33(1)(a), to suspend Respondent for 30 workdays pursuant to subsection (6)(a) of the statute.28
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that the Miami-Dade County School Board issue a final order upholding Respondent's 30-workday suspension for the reasons set forth above.
DONE AND ENTERED this 8th day of March, 2011, in Tallahassee, Leon County, Florida.
S
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 8th day of March, 2011.
ENDNOTES
1 Unless otherwise noted, all references in this Recommended Order to Florida Statutes are to Florida Statutes (2010).
2 Respondent's Exhibit 1 was a transcript of a deposition taken of A. H. on December 6, 2010. It was offered and received into evidence in lieu of A. H.'s live testimony.
3 J. M. no longer attends Ludlam. She is currently a third grade student at Devon Aire K-8 Center.
4 Pursuant to section 1003.32(1)(k)(1), Florida Statutes, "[t]he use of corporal punishment [in a Florida public school] shall be approved in principle by the principal before it is used." "In accordance with the provisions of s. 1003.32, corporal punishment of a public school student may only be administered by a teacher or school principal within guidelines of the school principal and according to district school board policy."
§ 1002.20(4)(c)1, Fla. Stat. The School Board's policy with respect to corporal punishment is stated in its rule 6Gx13-5D- 1.07, which provides, in pertinent part, that "[t]he administration of corporal punishment in Miami-Dade County Public Schools is strictly prohibited."
5 Respondent effectively used A. P. as an instrument to carry out corporal punishment (prohibited at Ludlam and all other School Board-operated public schools) against A. H.
6 That the School Board established that the A. P. hit A. H. with a book, rather than with an "open hand" as alleged in the Notice of Specific Charges, is not a fatal defect in the School Board's proof. Cf. Ingleton v. State, 700 So. 2d 735, 739 (Fla. 5th DCA 1997)("There are many Florida cases where deviations from facts alleged in a charging document were permitted on the basis that the cha[r]ged facts were not essential elements of the charged offense."). The essence or gist of the wrongdoing with which Respondent has been charged is that she "let" A. P. strike A. H. Whether A. P. did so using a book as opposed to an "open hand" is of no materiality or consequence.
7 J. M. was one of three witnesses who gave eyewitness testimony concerning the Incident at the final hearing (A. H., who testified by deposition, and Respondent being the other two). The undersigned finds J. M.'s testimony concerning Respondent's role as a facilitator in A. P.'s hitting A. H. (which testimony was corroborated by hearsay evidence of statements students, including A. P. and A. H., made to Dr. Menocal the day of the Incident) to be more credible than Respondent's and A. H.'s testimony to the contrary, and he therefore has relied on
M.'s testimony on this matter in making his factual findings. See Dieguez v. Dep't of Law Enforcement, Crim. Justice Standards & Training Comm'n, 947 So. 2d 591, 594 (Fla. 3d DCA 2007)("[T]he APA allows hearsay evidence to be used for the purpose of supplementing or explaining other evidence. In her initial statement to the police, the victim had described these contracts and explained that they were agreements in exchange for sexual favors. She explained that Mr. Dieguez wrote the contracts. The victim's mother also told the detective that the handwriting on the documents was that of Mr. Dieguez. That hearsay evidence is admissible to explain these documents.")(citation omitted); and § 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."). In evaluating the credibility of Respondent's testimony, the undersigned has taken into consideration its self-serving nature. See Martuccio v. Dep't of Prof'l Regulation, Bd. of Optometry, 622 So. 2d 607, 609 (Fla. 1st DCA 1993)("Persons having a pecuniary or proprietary
interest in the outcome of litigation are not disqualified from testifying under the Florida Evidence Code. Interest merely goes to the credibility of the evidence.")(citation omitted).
8 Because "physical restraint" had been used by Respondent on one of the combatants, the skirmish between A. H. and A. P. was a "Level 3 . . . behavior," which, pursuant to the Handbook, "require[d] a referral to an administrator" made "on a Student Case Management (SCM) referral form." Respondent's failure to have made such a "referral" was not only a breach of the administrative directive in the Handbook, it is also evidence that something had happened during the Incident that Respondent did not want the school administration to find out about.
Cf. U. S. v. Sweiss, Case No. 85 CR 518, 1986 U.S. Dist. LEXIS
30406 *4 (N.D. Ill. Jan. 15, 1986)("The obstruction charges are inextricably linked to the arson charges because of the ordinarily permissible inference that acts done to cover up a crime are relevant to the proof of guilt of that crime.").
9 J. M. was not one of these students.
10 The third student was not capable of expressing herself in writing.
11 Contrary to the suggestion made by the School Board in its Proposed Recommended Order, the record evidence is insufficient to support a finding that "Respondent had communications [about the Incident] with A. P. [or any other student, for that matter] separate[] and apart from the meeting she had with all the students and parents" on February 26, 2010, after the Performance.
12 J. M. was not among the students Mr. Machacon interviewed.
13 Respondent had made such a denial at the Post-Performance Meeting, at which A. P. was present.
14 M. G. was another parent who had attended the Post- Performance Meeting. Like M. M., M. G. testified at the final hearing about what had happened at the meeting. Her testimony, however, was at odds with M. M.'s. She claimed that, at the meeting, Respondent had not "addressed any specific incident [of student misbehavior] that had occurred" in Respondent's classroom, testimony the undersigned has rejected because it is less credible than M. M.'s testimony to the contrary (which was corroborated by the hearsay testimony of Mr. Machacon concerning
what he had been told by Respondent during his interview with her on February 26, 2010).
15 This prior statement by J. M., which was made within a week of the Incident, is consistent with the testimony she gave approximately nine months later at the final hearing, and thus demonstrates to the undersigned that the passage of time between the Incident and the hearing did not affect the accuracy of her hearing testimony.
16 The day after receiving this letter, Respondent sent M. M. an e-mail asking M. M. to call her. The School Board asserts in its Proposed Recommended Order that, in sending this e-mail, Respondent was "attempting to reach out to Ms. M. to influence her testimony and J. M.'s understanding of the events." The undersigned rejects this assertion made by the School Board as pure speculation unsupported by the record evidence.
17 Respondent herself tried to take advantage of this phenomenon when, at the Post-Performance Meeting, she related her fabricated version of the Incident and then asked the students who were present to confirm the accuracy of her story. In evaluating the credibility of the various student statements that are part of the evidentiary record in this case, the undersigned has taken into consideration this attempt on Respondent's part to improperly influence her students.
18 This assertion that she did not know there was an investigation at the time of the Post-Performance Meeting is inconsistent with the admission she made earlier, in the very same paragraph of this letter, that she had been questioned by Officer San Antonio about the Incident the day before meeting.
19 The undersigned finds that this prior inconsistent statement, not A. H.'s deposition testimony, represents the truth.
20 No such call to the office was actually made, as even Respondent has conceded.
21 The failure to "submit properly" a Student Case Management referral form in accordance with the "administrative directives" contained in the Handbook constitutes a violation of School Board Rule 6Gx13-4A-1.21II.
22 The Principles of Professional Conduct for the Education Profession in Florida are set forth in Florida Administrative
Code Rule 6B-1.006. They require a teacher, as part of his or her "[o]bligation to the student," to "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" and to "not intentionally expose a student to unnecessary embarrassment or disparagement," among other things.
23 The provisions of School Board Rules 6Gx13-1.213 and 6Gx13- 4A-1.21 set out above are those that were recited in the Amended Notice.
24 "Immorality" was added to the "non-exclusive list of sins" in section 1012.33(1)(a) by section 28 of chapter 2008-108, Laws of Florida, effective July 1, 2008.
25 Definitions of the "sins" specifically mentioned in section 1012.33(1)(a), plus "drunkenness," are found in Florida Administrative Code Rule 6B-4.009, which provides as follows:
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:
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:
Inefficiency: (1) repeated failure to perform duties prescribed by law (Section 231.09, Florida Statutes); (2) repeated failure on the part of a teacher to communicate with and relate to children in the classroom, to such an extent that pupils are deprived of minimum educational
experience; or (3) repeated failure on the part of an administrator or supervisor to communicate with and relate to teachers under his or her supervision to such an extent that the educational program for which he or she is responsible is seriously impaired.
Incapacity: (1) lack of emotional stability; (2) lack of adequate physical ability; (3) lack of general educational background; or (4) lack of adequate command of his or her area of specialization.
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.
Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, F.A.C., which is so serious as to impair the individual's effectiveness in the school system.
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.
Drunkenness is defined as:
That condition which exists when an individual publicly is under the influence of alcoholic beverages or drugs to such an extent that his or her normal faculties are impaired; or
Conviction on the charge of drunkenness by a court of law.
Moral turpitude is a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.
"Immorality" and "misconduct in office" may be established, even in the absence of "specific" or "independent" evidence of impairment, where the conduct engaged in by the teacher is of such a nature that it "speaks for itself" in terms of its seriousness and its adverse impact on the teacher's service and effectiveness. In such cases, proof that the teacher engaged in the conduct is also proof of impaired effectiveness. See Purvis v. Marion Cnty. Sch. Bd., 766 So. 2d 492, 498 (Fla. 5th DCA 2000); Walker v. Highlands Cnty. Sch. Bd., 752 So. 2d 127, 128-
29 (Fla. 2d DCA 2000); Summers v. Sch. Bd. of Marion Cnty., 666 So. 2d 175, 175-76 (Fla. 5th DCA 1995); Brevard Cnty. Sch. Bd. v. Jones, Case No. 06-1033, 2006 Fla. Div. Adm. Hear. LEXIS 287
*17 (Fla. DOAH June 30, 2006)(Recommended Order)("[T]he need to demonstrate 'impaired effectiveness' is not necessary in instances where the misconduct by a teacher speaks for itself, or it can be inferred from the conduct in question."); and Miami-Dade Cnty. Sch. Bd. v. Lefkowitz, Case No. 03-0186, 2003 Fla. Div. Adm. Hear. LEXIS 675 **23-24 (Fla. DOAH July 31, 2003)(Recommended Order)("The School Board failed to prove by a preponderance of the direct evidence that Mr. Lefkowitz's actions were so serious that they impaired his effectiveness as a teacher. Nonetheless, based on the findings of fact herein, it may be inferred that Mr. Lefkowitz's conduct impaired his effectiveness as a teacher in the Miami-Dade County public school system.")(citation omitted).
26 "A county school board is a state agency falling within [c]hapter 120 for purposes of quasi-judicial administrative orders." Sublett v. Dist. Sch. Bd. of Sumter Cnty., 617 So. 2d 374, 377 (Fla. 5th DCA 1993); see also Sch. Bd. of Palm Beach Cnty. v. Survivors Charter Schs., Inc., 3 So. 3d 1220, 1231 (Fla. 2009)("No one disputes that a school board is an 'agency' as that term is defined in the APA."); Volusia Cnty. Sch. Bd. v.
Volusia Homes Builders Ass'n, 946 So. 2d 1084, 1089 (Fla. 5th DCA 2006)("[T]he School Board is an agency subject to the Administrative Procedure Act."); and Witgenstein v. Sch. Bd. of Leon Cnty., 347 So. 2d 1069, 1071 (Fla. 1st DCA 1977)("It was obviously the legislative intent to include local school districts within the operation of [c]hapter 120.").
27 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 Fla., 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 Cnty. Gov'tl Emps. Ass'n v. Hillsborough Cnty. Aviation Auth.,
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 Cnty. Sch. Bd. v. Auerbach, Case No. 96-3683, 1997 Fla. Div. Adm. Hear. LEXIS 5185
**13-14 (Fla. DOAH Feb. 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.").
28 Not only did Respondent intentionally enable one of her students to exact physical retribution against another student, which itself, standing alone, warrants a 30-workday suspension, she also failed to report the Incident, as required, and then later, at the Post-Performance Meeting, after the School Board's investigation into the matter had commenced, tried to influence her students not to tell the truth about her role, during the Incident, as an enabler of the use of physical force.
COPIES FURNISHED:
Christopher J. La Piano, Esquire Assistant School Board Attorney Miami-Dade County School Board
1450 Northeast Second Avenue, Suite 430
Miami, Florida 33132
Mark Herdman, Esquire
29605 U.S. Highway North, Suite 110
Clearwater, Florida 33761
Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue
Miami, Florida 33132-1308
Honorable Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514
325 West Gaines Street Tallahassee, Florida 32399-0400
Lois Tepper, Acting General Counsel Department of Education
Turlington Building, Suite 1244
325 West Gaines Street 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.
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 15, 2011 | Agency Final Order | |
| Mar. 08, 2011 | Recommended Order | School Board had just cause to suspend for 30 workdays a teacher who let one student in her class hit another student and then took steps designed to prevent the administration from learning the truth about what had happened. |
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