STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. )

)

CLAUDIA HYE, )

)

Respondent. )

Case No. 12-1568TTS

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case pursuant to sections 120.569 and 120.57(1), Florida Statutes (2012) before Cathy M. Sellers, an Administrative Law Judge of the Division of Administrative Hearings, on September 27, 2012, by video teleconference at sites in Miami and Tallahassee,

Florida.

APPEARANCES

For Petitioner: Christopher J. LaPiano, Esquire

Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Mark Herdman, Esquire

Herdman and Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

STATEMENT OF THE ISSUES

The issue in this case is whether Respondent committed misconduct in office and violated Petitioner's policies such that just cause exists to suspend her without pay and dismiss her from employment as a teacher with Miami-Dade County Public

Schools.

PRELIMINARY STATEMENT

On February 15, 2012, Petitioner, Miami-Dade County School Board, took action against Respondent, Claudia Hye, to suspend her without pay and dismiss her from employment with Miami-Dade County Public Schools. Petitioner timely requested an administrative hearing pursuant to sections 120.569 and 120.57(1), and the matter was referred to the Division of Administrative Hearings for assignment of an Administrative Law Judge and conduct of a hearing.

The final hearing initially was scheduled for July 6, 2012.

Pursuant to request, the hearing was rescheduled to

September 25, 2012; however, due to a conflict, the hearing was rescheduled for September 27, 2012.

The final hearing was held on September 27, 2012.

Petitioner presented the testimony of D.M., A.M., S.K., J.F., P.H., Tangela Goa, and Respondent, and offered Petitioner's Exhibits 1 through 5, 7, and 9 through 13, which were admitted into evidence pursuant to the parties' stipulation. Respondent

testified on her own behalf and did not offer any exhibits for admission into evidence.

The one-volume Transcript was filed with the Division of Administrative Hearings on October 29, 2012. The parties timely filed their Proposed Recommended Orders on November 8, 2012; both were considered in preparing this Recommended Order.

FINDINGS OF FACT

1. The Parties

   
   

   1. Petitioner 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, pursuant to Florida Constitution Article IX, section 4(b), and section 1012.23, Florida Statutes.

   2. At all times material, Respondent was a first grade teacher at Van E. Blanton Elementary School ("Blanton"), an elementary school within the Miami-Dade County Public Schools.

   3. Respondent's employment with Petitioner was governed by the collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade, Petitioner's policies and rules, and Florida law.

2. Background of this Proceeding

   
   

   1. This matter had its genesis in November 2011, when Tangela Goa, the principal at Blanton, was contacted by D.M., the mother of S.K., who was a student in Respondent's first

      
      

      grade class. D.M. told Ms. Goa that S.K. did not want to go school because Respondent hit her and other students in the class.

   2. The school police investigated the complaint. The investigation resulted in allegations that Respondent hit students in her class with a stick, disciplined students by putting them in the bathroom with the door closed and lights off, and called students "stupid" and "dumb."

   3. As a result of the investigation, on February 15, 2012, Petitioner suspended Respondent without pay and took action to dismiss her from her employment with Miami-Dade County Public Schools.

   4. The Notice of Specific Charges alleges four grounds for Respondent's suspension and dismissal: misconduct in office; violation of School Board Policy 3210 – Standards of Ethical Conduct; violation of School Board Policy 3210.01 – Code of Ethics; and violation of School Board Policy 5630 – Corporal Punishment and Use of Reasonable Force.

3. Alleged Incidents Giving Rise to Charges

   
   

   1. S.K., J.F., and P.H. are students who were assigned to Respondent's first grade class for the 2011-2012 school year.1/ At the time, they were six and seven years old.

   2. S.K., J.F., and P.H. each testified that Respondent hit students in her class with a green stick.2/ There were some

      
      

      differences in the students' testimony regarding details, such as whether Respondent tapped students or struck them hard with the stick, whether Respondent struck them on the head or other parts of their body, and how many and which students were struck.3/

   3. S.K., J.F., and P.H. also testified that Respondent put students in the bathroom with the door closed and lights off for misbehaving or not doing their work, and for wetting their pants. Again, there was some difference in testimony regarding certain details, such as whether the restroom door locked from the inside or the outside.

   4. J.F. testified that Respondent called students in her class "stupid" when they got answers incorrect, while S.K. testified that Respondent told the students to "stop acting" stupid or dumb. P.H. testified that Respondent once used a curse word but did not call students "stupid" or "dumb."

   5. Principal Goa testified that the behavior in which Respondent is alleged to have engaged is not conducive to learning and that there are alternative strategies that may be employed, as appropriate, to manage student behavior. Ms. Goa testified that, assuming the allegations were shown to be true, her confidence in Respondent's judgment in managing her classroom has been significantly undermined.

      
      

   6. D.M. testified that she did not want S.K. attending school in an environment where she was afraid of being called names and hit.

4. Respondent's Defenses

   
   

   1. Respondent denies that she struck students in her class with the green stick. She testified that she used the stick to point to words on the whiteboard. She testified that early in the school year, she used the stick to tap students as she called on them because she did not yet know all of their names.

   2. Respondent also denies that she disciplined students by locking them in the bathroom with the lights off and door closed. She testified that she would put them in the bathroom when they soiled themselves or wet their pants, to await receiving clean clothing. She further testified that the bathroom door locked from the inside, rather than the outside, so that she could not lock anyone in the bathroom.

   3. Respondent denies that she called students in her classroom "stupid" or "dumb." She acknowledges that when they would misbehave in class, she would tell them to "stop acting" stupid or "stop acting" dumb.

5. Findings of Ultimate Fact

1. Having fully considered all of the evidence in the record, it is determined that Petitioner proved, by a

   
   

   preponderance of the evidence, that Respondent struck students in her class with a stick and placed them in the bathroom with the lights off and door closed to discipline them. Petitioner did not prove, by a preponderance of the evidence, that Respondent called students "stupid" or "dumb."

2. Although there were some differences in the students' testimony, they consistently testified that Respondent struck students in her class with a stick. The differences in testimony regarding certain details likely reflect the students' individual experiences and perceptions of the incidents, rather than being inconsistencies that call their credibility into question. Moreover, given the students' young ages and that the matters about which they testified took place over a year ago, it is reasonable to expect some differences regarding minor details. On balance, it is determined that the evidence Petitioner presented on this issue was more credible and persuasive than that presented by Respondent.

3. The students also consistently testified that Respondent put students in the restroom with the door closed and lights out as a disciplinary measure. Respondent testified that she would put students in the bathroom when they soiled themselves or wet their pants, and S.K.'s testimony corroborated that explanation; however, this is not inconsistent with the testimony that Respondent also placed students in the bathroom

   
   

   with the lights out and door closed for other things such as misbehaving, crying, or not doing their work. Petitioner presented more credible and persuasive evidence on this issue than did Respondent.

4. The students' testimony on the issue of whether Respondent called students "stupid" and "dumb" was not consistent; as noted above, the three students who testified each gave substantially different and contradictory accounts. Petitioner did not establish, by the greater weight of the evidence, that Respondent verbally abused students by calling them "stupid" or "dumb" as charged in the Notice of Specific Charges.

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to, and subject matter of, this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes.

6. This is a disciplinary proceeding brought pursuant to subsections 1012.33(1)(a) and (6)(a), Florida Statutes,4/ and Florida Administrative Code Rules 6B-1.001 and 6B-1.004, and 6A- 5.056,5/ to suspend Respondent without pay and to terminate her employment as a teacher. These statutes and rules are penal and therefore must be strictly construed, with ambiguities resolved in favor of the person charged with violating them. Lester v.

   
   

   Dep't of Prof'l & Occ. Reg., 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

7. Respondent is an instructional employee as defined by section 1012.01(2). Petitioner has the authority to suspend or terminate instructional employees pursuant to subsections 1012.22(1)(f) and 1012.33(1)(a) and (6)(a), but to do so, Petitioner must prove, by a preponderance of the evidence, that Respondent committed the alleged violations, and that such violations constitute cause for dismissal. McNeill v. Pinellas Cnty. Sch. Bd., 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Dileo v.

   Sch. Bd. of Dade Cnty., 569 So. 2d 883 (Fla. 3d DCA 1990).

   
   

8. Whether Respondent committed the charged offenses is a question of ultimate fact to be determined by the trier of fact in the context of each alleged violation. McKinney v. Castor,

   66 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995).

9. Subsections 1012.33(1)(a) and (6)(a) provide that a member of the instructional staff may be dismissed during the term of his or her employment contract only for just cause. "Just cause" is defined to include "misconduct in office." § 1012.33(1)(a), Fla. Stat.

10. Rule 6A-5.056(3) defines "misconduct in office" as:

    
    

    1. 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.

       
       

11. The Code of Ethics of the Education Profession in Florida, rule 6B-1.001, provides in pertinent part:

    (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 a 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.

    
    

    * * *

    
    

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

    
    

12. The Principles of Professional Conduct for the Education Profession in Florida, rule 6B-1.006, provides in pertinent part:

    1. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.

    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.

    3. Obligation to the student requires that the individual:

       1. 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.

    
    

    * * *

    
    

    (e) Shall not intentionally expose a student unnecessary embarrassment or disparagement.

    * * *

    
    

    (5) Obligation to the profession of education requires that the individual:

    
    

    * * *

    
    

    (d) Shall not engage in harassment or discriminatory conduct which unreasonably interferes with an individual's performance of professional or work responsibilities or with the orderly process of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment; and, further, shall make reasonable effort to assure that each individual is protected from such harassment or discrimination.

    
    

13. Respondent's conduct constitutes a violation of the Code of Ethics and the Principles of Professional Conduct for the Education Profession which is so serious as to impair her effectiveness in the school system.6/ In striking students with a stick and confining them to the bathroom with the lights out and door closed, she disregarded their dignity. Through her behavior, she failed to sustain the highest degree of ethical conduct and lost the confidence of her professional colleague, Ms. Goa, and of the parents of students she taught. Through her behavior, she also failed to make reasonable effort to protect

    
    

    her students from conditions harmful to learning and/or the student's mental and/or physical health and/or safety, and exposed her students to unnecessary embarrassment and disparagement. The evidence established that her actions had a negative emotional impact on her students, resulting in some not wanting to attend school. For these reasons, Respondent's conduct constitutes misconduct in office and is just cause for dismissal from her employment with Petitioner.

14. School Board Policy 3210, Standards of Ethical Conduct, provides in relevant part:

    All employees are representatives of the District and shall conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system.

    
    

    A. An instructional staff member shall:

    1. teach efficiently and faithfully, using the books and materials required, following the prescribed courses of study, and employing approved methods of instruction as provided by law and by the rules of the State Department of Education;

    
    

    * * *

    
    

    3. make a 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;

    
    

    * * *

    
    

    7. not intentionally expose a student to unnecessary embarrassment or disparagement[.]

    
    

15. Respondent failed to conduct herself in a manner that reflects credit on her and the school system. She did not use prescribed methods of classroom management and failed to make reasonable effort to protect her students from conditions harmful to learning and to protect their mental safety. As such, Respondent's conduct violates School Board Policy 3210 and constitutes just cause for dismissal from her employment with Petitioner.

16. School Board Policy 3210.01, Code of Ethics, provides in pertinent part:

    All members of the School Board, administrators, teachers and all other employees of the District, regardless of their position, 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 District students.

    
    

    As stated in the Code of Ethics of the Education Profession in Florida (State Board of Education F.A.C. 6B-1.001):

    
    

    A. 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.

    
    

    C. 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.

    
    

    * * * Fundamental Principles

    The fundamental principles upon which this Code of Ethics is predicated are as follows:

    
    

    * * *

    
    

    F. Kindness – Being sympathetic, helpful, compassionate, benevolent, agreeable, and gentle toward people and other living things.

    
    

    * * *

    
    

    H. 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 (3) major forms: respect for oneself, respect for other people, and respect for all forms of life and the environment.

    
    

    * * *

    
    

    Each employee agrees and pledges:

    
    

    A. To abide by this Code of Ethics, making the well-being of the students and the honest performance of professional duties core guiding principles.

    
    

    * * *

    
    

    D. To treat all persons with respect and to strive to be fair in all matters.

    
    

    * * *

    
    

    Conduct Regarding Students

    
    

    Each employee:

    A. 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;

    
    

    * * *

    
    

    E. shall not intentionally expose a student to unnecessary embarrassment or disparagement[.]

    
    

    * * *

    
    

17. As previously discussed, Respondent's actions showed lack of regard for her students' dignity, and she failed to maintain the confidence of her professional colleagues and the parents of her students, failed to make reasonable effort to protect students from conditions harmful to learning and to their mental health, and intentionally exposed students to unnecessary embarrassment and disparagement. Respondent's conduct violated School Board Policy 3210.01 and constitutes just cause for dismissal from employment.

18. School Board Policy 5630, Corporal Punishment and Use of Reasonable Force, provides in pertinent part:

    Teachers or other designated members of the staff are authorized to control students assigned to them and shall keep order in the classroom.

    
    

    Corporal punishment is strictly prohibited. Comprehensive programs for alternative discipline include, but are not limited to, counseling, timeout rooms, in-school

    
    

    suspension centers, student mediation and conflict resolution, parental involvement, alternative education programs, and other forms of positive reinforcement.

    Suspensions and/or expulsions are also available as administrative disciplinary actions depending upon the severity of the misconduct (Policy 5610).

    
    

    Instructional and support staff, within the scope of their employment, may use and apply reasonable force to quell a disturbance threatening physical injury to others, to obtain possession of weapons or other dangerous objects upon or within the control of the student, in self-defense, or for the protection of persons or property.

    
    

19. Respondent's striking of students with a stick constitutes corporal punishment in violation of School Board Policy 5630, and is just cause for dismissal from her employment

with Petitioner.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a Final Order upholding the suspension without pay of Respondent, Claudia Hye, and dismissing her from her employment as a teacher with Miami-Dade County Public Schools.

DONE AND ENTERED this 13th day of December, 2012, in Tallahassee, Leon County, Florida.

S

CATHY M. SELLERS

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 13th day of December, 2012.

ENDNOTES

1/ The alleged incidents took place in or prior to November 2011. Respondent was removed from the class sometime thereafter and suspended in February 2012.

2/ The stick was a short, slender, green bamboo stick.

3/ P.H. testified that Respondent struck him in the head with the metal part of a pair of scissors. J.F. testified that Respondent struck another student, D., in the head with scissors. However, neither P.H. nor J.F. reported these alleged incidents and Respondent was not charged with having struck students with scissors. Accordingly, this testimony is not considering in determining whether Respondent committed the violations alleged in the Notice of Specific Charges.

4/ All references are to 2011 Florida Statutes, which were in effect at the time the violations are alleged to have occurred.

5/ Rule 6B-4.009, entitled "Criteria for Suspension and Dismissal," has a somewhat convoluted history. The rule previously was promulgated as rule 6B-4.09, and was transferred

to rule 6B-4.009 in 1983. On the same date the rule was transferred to rule 6B-4.009, it also was transferred to rule 6A-5.056. The rule is currently (and correctly) cited as rule 6A-5.056. See Florida Administrative Code Chapter 6B-4. The version of rule 6A-5.056 applicable to this proceeding is that predating the most recent amendment, which was adopted on July 8, 2012.

6/ See Sch. Bd. of Miami-Dade Cnty. v. Valdes, Case No. 11- 1010TTS (Fla. DOAH January 24, 2012); MDSCB (May 9, 2012)(use of

a stick to swat at and strike students is cause for dismissal); see Palm Beach Cnty. Sch. Bd. v. Scott, Case No. 08-2831, 2009 Fla. Div. Adm. Hear. (Fla. DOAH January 16, 2009) (ALJ recommended dismissal of a teacher that placed a student in a dark storage room as a form of discipline).

COPIES FURNISHED:

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

29605 U.S. Highway 19, North

Clearwater, Florida 33761

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

1450 Northeast Second Avenue Miami, Florida 33132

Dr. Tony Bennett, Commissioner of Education Department of Education

Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Lois Tepper, Interim General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Alberto M. Caravalho, Superintendent Miami-Dade County School District

1450 Northeast Second Avenue Miami, Florida 33132-1308

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: 12-001568TTS

Orders for Case No: 12-001568TTS