STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. )

)

JEANETTE T. YASSIN, )

)

Respondent. )

Case No. 11-4934TTS

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted by video teleconference between Miami and Tallahassee, Florida, on January 13, 2012, before Administrative Law Judge Claude B. Arrington of the Division of Administrative Hearings

(DOAH).

APPEARANCES

For Petitioner: Christopher J. LaPiano, Esquire

Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 430

Miami, Florida 33132

For Respondent: Mark Herdman, Esquire

Herdman and Sakellarides, P.A. 29605 U.S. Highway 19, Suite 110

Clearwater, Florida 33761 STATEMENT OF THE ISSUE

Whether Respondent committed the acts alleged in the Notice of Specific Charges filed October 28, 2011, and, if so, the

discipline, if any, that should be imposed against Respondent's employment.

PRELIMINARY STATEMENT

At its regularly scheduled meeting on September 7, 2011, the School Board of Miami-Dade County, Florida, (Petitioner) voted to suspend the employment of Jeanette T. Yassin

(Ms. Yassin or Respondent) without pay and to terminate her employment subject to her right to request a formal administrative hearing. Respondent timely requested a formal administrative hearing to challenge Petitioner's action, the matter was referred to DOAH, and this proceeding followed.

Unless otherwise noted, each reference to a statute is to Florida Statutes (2011), and each reference to a rule is to the rule as published in Florida Administrative Code as of the date of this Recommended Order. There has been no material change to any statute or rule cited in this Recommended Order from the date the events occurred to the date of this Recommended Order.

At the times relevant to this proceeding, Petitioner employed Ms. Yassin as a classroom teacher. The Notice of Specific Charges contain factual allegations related to

Ms. Yassin's actions. Based on those alleged facts, the Notice of Specific Charges seeks the termination of her employment pursuant to sections 1012.22(1)(f), 1012.32(2), 1012.33(1)(a) and (6)(a), and 447.209, Florida Statutes.

The Notice of Specific Charges contained five Counts.

Count I alleged that Respondent was guilty of "Misconduct in Office." Count II alleged that Respondent was guilty of "Immorality." Count III alleged that Respondent was guilty of "Violation of School Board Rule (Responsibilities and Duties - 6Gx13-4A-1.21)." Count IV alleged that Respondent was guilty of "Violation of School Board Rule (Code of Ethics - 6Gx13-4A- 1.213)." Count V alleged that Respondent was guilty of "Gross Insubordination."

At the final hearing, Petitioner presented the testimony of Lucy Iturrey (a regional administrative director employed by Petitioner), Evonne Alvarez (a principal employed by Petitioner), Dr. Jimmie Lee Brown, Jr. (director of Petitioner's Office of Professional Standards), and four students (who will not be referred to by initials or gender to protect the privacy of each student). Petitioner offered 16 pre-marked exhibits of which 6-15 were admitted without objection, 16 was admitted over objection, and 1-5 were rejected based on Respondent's objections. Ms. Yassin testified on her own behalf, but she offered no other testimony and no exhibits.

A Transcript of the proceedings, consisting of one volume, was filed on April 9, 2012. Each party filed a Proposed Recommended Order, and both have been duly considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida.

2. At all times relevant to this proceeding, Respondent has been on a contract that is subject to a collective bargaining agreement between Petitioner and the United Teachers of Dade, applicable Florida Statutes, applicable rules adopted by the Florida State Board of Education as set forth in the Florida Administrative Code, and Petitioner's adopted policies and procedures.

3. Article XXI, Section 1.B(1)(a) of the UTD Contract provides that "Any 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."

4. Near the end of the 2009-2010 school year, Respondent was placed on a 25-day suspension without pay for having inappropriate communications with students. Prior to serving her suspension, Respondent was issued directives that she was not to make personal comments to students and she was not to communicate with students via text and personal letters at any time.

   
   

5. For the 2010-2011 school year, Ms. Yassin was assigned to South Miami Community Middle School (SMCMS), where she taught language arts to five classes. Ms. Alvarez was the principal of SMCMS for the 2010-2011 school year. Ms. Yassin's suspension ended in October 2010, at which time she reported for duty at SMCMS.

6. Shortly after Ms. Yassin reported for duty at SMCMS, Ms. Alvarez received a complaint from a parent that Respondent had requested that students bring school supplies into class in exchange for receiving extra academic credit.

7. Ms. Alvarez held a conference with Respondent.

   
   

   Ms. Alvarez instructed Ms. Yassin that School Board rules prohibit a teacher from giving extra academic credit in exchange for a student providing school supplies. Ms. Alvarez specifically told Ms. Yassin to cease and desist that practice.

8. Ms. Yassin admitted that she had given extra academic credit to students who had brought in school supplies and told Ms. Alvarez that it would not happen again.

9. In January 2011, Ms. Alvarez received a complaint from a student in one of Ms. Yassin's classes that Ms. Yassin had offered the students in the class assistance on a test in exchange for students bringing items of food to Ms. Yassin.

10. There was a conflict in the evidence as to whether Ms. Yassin offered her students assistance on tests if they

    
    

    brought candy and other food items such as pastries to her. The greater weight of the credible evidence established that during the 2010-2011 school year, Ms. Yassin made such an offer to students in one or more of her classes on one or more occasions.

11. Ms. Alvarez verbally informed Ms. Yassin of the allegations and told her that an investigation would be initiated. There was also a conflict as to whether Ms. Yassin quizzed her students as to the investigation and as to whether she made inappropriate comments to students about the investigation. The conflict is resolved by finding that

    Ms. Yassin made inappropriate comments to one or more students to lie about Ms. Yassin's conduct and told other students "to watch her back." Ms. Yassin also quizzed one or more students as to the discussion the student(s) had had with the investigator.

12. On January 12, 2011, Respondent was removed from MSCMS and placed on alternative assignment. Respondent was specifically informed that she "must not contact, visit or exchange in any type of communications with faculty/staff/students/family of students from the work location to which you were assigned at the time of the incident leading to this administrative placement."

13. Ms. Yassin violated that clear and unequivocal

    
    

    directive by communicating with parents and students by text and email between January 12 and February 3, 2011.1/

14. Respondent's misconduct, as described herein, has impaired her effectiveness in the school system.

15. Petitioner followed all relevant procedures in prosecuting this disciplinary proceeding.

    CONCLUSIONS OF LAW

    
    

16. DOAH has jurisdiction over the subject matter of and the parties to this case pursuant to sections 120.569 and 120 of 57(1).

17. Because Petitioner seeks to terminate Respondent's employment, which does not involve the loss of a license or certification, Petitioner has the burden of proving the allegations in its Notice of Specific Charges by a preponderance of the evidence, as opposed to the more stringent standard of clear and convincing evidence. See McNeill v. Pinellas Cnty.

    Sch. Bd., 678 So. 2d 476 (Fla. 2d DCA 1996); Allen v. Sch. Bd. of Dade Cnty., 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v. Sch. Bd. of Dade Cnty., 569 So. 2d 883 (Fla. 3d DCA 1990).

18. The preponderance of the evidence standard requires proof by "the greater weight of the evidence," Black's Law Dictionary 1201 (7th ed. 1999), or evidence that "more likely than not" tends to prove a certain proposition. See Gross v. Lyons, 763 So. 2d 276, 289 n.1 (Fla. 2000)(relying on American

    
    

    Tobacco Co. v. State, 697 So. 2d 1249, 1254 (Fla. 4th DCA 1997)

    
    

    quoting Bourjaily v. United States, 483 U.S. 171, 175 (1987)).

    
    

19. Section 1012.33(1)(a), Florida Statutes, sets forth "just cause" for terminating Respondent's employment. The following are included among the grounds justifying termination of employment: "immorality," "misconduct in office," and "gross insubordination," as those terms are defined by rule of the State Board of Education.

20. The following definitions are set forth in Florida Administrative Code Rule 6B-4.009(2), (3), and (4):

    1. 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.

    2. 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.

    3. 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.

       
       

21. Subsections (1) and (2) of the Code of Ethics of the

    
    

    Education Profession in Florida (Florida Administrative Code Rule 6B-1.001) provide as follows:

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

    2. The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity.

    3. Aware of the importance of maintaining the respect and confidence of one's colleagues, students, parents, and other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.

    
    

22. The Principles of Professional Conduct for the Education Profession in Florida are set forth in Florida Administrative Code Rule 6B-1.006. Subsection (2) of the rule provides as follows:

    (2) Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator's certificate, or the other penalties as provided by law.

    
    

23. Florida Administrative Code Rule 6B-1.006(3) sets forth the obligations a teacher has to a student, and includes the following:

    
    

    (a) Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's physical health and/or safety.

    
    

    * * *

    
    

    1. Shall not intentionally expose a student unnecessary embarrassment or disparagement.

    2. Shall not violate or deny a student's legal rights.

    3. Shall not harass or discriminate against any student on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition, sexual orientation, or social and family background and shall make reasonable effort to assure that each student is protected from harassment or discrimination.

    
    

24. Petitioner established that Respondent was guilty of misconduct in office, immorality, and gross insubordination as defined above and as charged by Counts I, II, and V of the Notice of Specific Charges. Respondent's conduct violated the Code of Ethics of the Education Profession in Florida and the Principles of Professional Conduct for the Education Profession in Florida by awarding extra academic credit to students who brought in school supplies and giving students inappropriate assistance on tests in exchange for bringing her food items. She told at least one student to lie to investigators and told others to "watch my back." Placing students in such an

    untenable position violated her duty to the students. Telling a child to lie to a school investigator constitutes an immoral act

    
    

    as defined above. Her repeated communications with students and their parents via e-mail and text after being unequivocally told not to do so by her principal constitute both misconduct in office and gross insubordination.

25. The School Board has adopted rule 6Gx13-4A-1.21, Responsibilities and Duties, which provides in pertinent that:

    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.

    
    

26. Respondent's conduct, as set forth in this Order, violated rule 6Gx13-4A-1.21 because it brought discredit on herself and on the school system as alleged in Count III of the Notice of Specific Charges.

27. Petitioner has adopted rule 6Gx13-4A-1.213, which was admitted into evidence as Petitioner's Exhibit 14, and is incorporated herein by reference. That rule requires employees of the Miami-Dade County Public School system to create an environment of honesty and integrity. Respondent's conduct described in this Order violated that rule as alleged in Count IV of the Notice of Specific Charges.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order sustain the suspension of Respondent's employment without pay and terminate that employment based on misconduct in office and gross insubordination.

DONE AND ENTERED this 17th day of May, 2012, in Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 2012.

ENDNOTE

1/ Dr. Brown conducted a conference-for-the record with

Ms. Yassin to discuss her conduct described in this order on May 31, 2011. Ms. Yassin's written statement was incorporated as part of the summary of the conference-for-the-record (Petitioner's exhibit 11) as follows:

Regarding the above referenced case number, regarding an alleged violation in which I am being accused of communicating with parents and students after having been placed on Administrative Leave. I am now aware that my actions were incorrect and improper, in that I did respond to e-mails and text messages from students and their parents. I was subsequently interviewed on 02-03-11 by Ms. Terri Chester, an investigator with CIU [Civil Investigation Unit] of Miami-Dade County Public Schools regarding Case Number S-06435. At that time I was advised to cease and desist from any further contact with students or parents and I have completely honored and complied with that recommendation. Since that time, I have continued to receive recurring communications from students and/or parents. However, as previously stated, I have not violated my commitment to abstain from any further contact.

It is respectfully submitted that any and all communications with students and/or parents occurred prior to 02-03-11, with no violation since that time. In addition, it is respectfully stated that I now recognize the errors of my ways, for which I profoundly apologize, with my sworn commitment not to repeat such behavior. I consider myself to be a dedicated teacher to my profession and my students and have clearly grown from this experience, which will hopefully continue well into the future.

COPIES FURNISHED:

Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue

Miami, Florida 33132-1308

Gerard Robinson, Commissioner Department of Education Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Charles M. Deal, General Counsel Department of Education Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Mark S. Herdman, Esquire Herdman and Sakellarides, P.A. Suite 110

29605 U.S. Highway 19 North

Clearwater, Florida 33761 nicky@herdsaklaw.com

Christopher J. La Piano, Esquire Miami-Dade County School Board Suite 430

1450 Northeast Second Avenue Miami, Florida 33132 cjlapiano@dadeschools.net

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: 11-004934TTS

Orders for Case No: 11-004934TTS