STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PALM BEACH COUNTY SCHOOL BOARD,
vs.
Petitioner,
Case No. 14-5823TTS
ANITRA GRANT-STRAGHN,
Respondent.
/
RECOMMENDED ORDER
A hearing was conducted in this case pursuant to
sections 120.569 and 120.57(1), Florida Statutes (2015), before Cathy M. Sellers, an Administrative Law Judge of the Division of Administrative Hearings ("DOAH"), on July 20 and 21, 2015, in West Palm Beach, Florida.
APPEARANCES
For Petitioner: Jean Marie Middleton, Esquire
School Board of Palm Beach County Office of General Counsel
3300 Forest Hill Boulevard, Suite C-323 Post Office Box 19239
West Palm Beach, Florida 33406-9239
For Respondent: Dedrick D. Straghn, Esquire
Dedrick D. Straghn, Attorney and Counselor at Law
26 Southwest 5th Avenue Delray Beach, Florida 33444
STATEMENT OF THE ISSUE
Whether just cause exists for Petitioner to suspend Respondent from her teaching position, without pay, for seven
days.
PRELIMINARY STATEMENT
On October 20, 2014, the superintendent for the School District of Palm Beach County, Florida, notified Respondent, Anitra Grant-Straghn, that he was recommending to Petitioner, Palm Beach County School Board, that Respondent be suspended from her teaching duties, without pay, for seven days.
Respondent timely challenged Petitioner's proposed action and the matter was referred to DOAH to conduct a hearing pursuant to sections 120.569 and 120.57(1).
The final hearing initially was scheduled for February 4, 2015, but pursuant to the parties' motions, ultimately was continued to July 20 through 22, 2015.
The hearing was held on July 20 and 21, 2015. In its case-in-chief, Petitioner presented the in-person testimony of Respondent, ToniLyn Bilota, and Shirley Starling Teague. The
deposition testimony of Hayxa Anderson, Patricia Brinkley, Tricia Maxwell, Kenneth Clark, and F.L.S. was presented in lieu of in- person testimony at the hearing. Petitioner's Exhibits 1, 9,
and 11 through 18 were admitted without objection and Petitioner's Exhibits 2, 4 through 8, 10, 19, 21 through 23, 25, and 30 were
admitted over objection.1/ Respondent testified on her own behalf and presented the testimony of Minnie Williams-Smith and Sandra Gero. Respondent's Exhibits 1 and 7 were admitted into evidence without objection and Respondent's Exhibits 2, 3, 5, and 6 were admitted into evidence over objection. Respondent's Exhibit 4 was not admitted into evidence. On rebuttal, Petitioner presented the testimony of Kia Allen and Mary Powers.
The three-volume Transcript was filed on August 12, 2015.
Pursuant to the parties' joint agreement made at the close of the final hearing, the deadline for filing proposed recommended orders was set for October 2, 2015. The proposed recommended orders were timely filed and were duly considered in preparing this
Recommended Order.
FINDINGS OF FACT
The Parties
Petitioner, Palm Beach County School Board, is charged with the duty to operate, control, and supervise free public schools within the School District of Palm Beach County ("District"), pursuant to article IX, section 4(b) of the Florida Constitution and section 1012.33, Florida Statutes (2013).2/
At all times relevant to this proceeding, Respondent was employed by Petitioner as a teacher at Atlantic High School ("Atlantic") in Delray Beach, Florida. During the 2013-2014
school year, Respondent was assigned to supervise the credit lab at Atlantic.
Respondent has been employed by Petitioner since 2006 and has not previously been disciplined.
Administrative Charges
On December 9, 2014, Petitioner filed its Petition, which constitutes the administrative charging document in this proceeding.
The Petition alleges that Respondent slapped a male student in the face, and that this conduct violates the following: School Board Policies 0.01(2)(c) and (d) 1.013(1), 3.02(4)(a) and (d), 3.02(5)(a)(i), (ii), and (vii), and 3.27; Florida Administrative Code Rules 6A-5.056, 6A-10.080(2) and (3), and 6A- 10.081(3)(a) and (e); and the Collective Bargain Agreement Between the School District of Palm Beach County, Florida, and the Palm Beach County Classroom Teachers Association ("CBA"), Article II, Section M.
The Petition further alleges that these violations constitute just cause, pursuant to section 1012.33, to suspend Respondent from her teaching position, without pay, for seven days.
Notably, the Petition does not allege that Respondent grabbed the student's face and does not seek to impose discipline on that basis. The Petition also does not allege that Respondent
was charged with a crime or seek to impose discipline on that basis.
Evidence Adduced at the Hearing
The incident giving rise to this proceeding occurred on or about Thursday, March 6, 2014, the date on which the District celebrated "Take Our Daughters and Sons to Work Day."
Respondent took her minor son to work with her at Atlantic that day.
Respondent's son left her classroom briefly to use the restroom. When he returned to the classroom, he told Respondent that a male student had called him a "[racial slur]". He was able to identify the student, by the clothing he was wearing, as Rodney Michel.
Respondent did not write a disciplinary referral on Michel for the alleged incident.
At or around 3:00 p.m. on the afternoon of Monday, March 10, 2014, as Respondent was leaving school, she went to the credit lab classroom to confront Michel regarding the racial slur that her son claimed Michel had called him.
According to Respondent, when she entered the classroom, Michel was standing on a chair and behaving aggressively, and when she confronted him, "he jumped down in my face." Respondent testified that she grabbed Michel's face to make him listen to
what she had to say, and that she told him he was wrong to have called her son the racial slur. She then left the classroom.
Shirley Starling Teague was the credit lab teacher that afternoon, and she was in the classroom when Respondent entered. She saw Respondent walk to a particular area of the classroom. Thereafter, she heard a sound. When asked on direct examination "what did you think that sound was that you heard?", she answered, "[i]t sounded like a slap."
Teague did not see Respondent slap Michel or grab his face because her view of them was blocked by a partition around a computer table.
Teague testified that she had not seen Michel standing in a chair. She believed she would have seen him if he had done so because the partitions were not high enough to have blocked her view of a student standing in a chair.
Teague testified that as Respondent exited the classroom, she told Teague, "he called my son a [racial slur]."
The students in the credit lab had become unruly, so Teague investigated.
At some point, students told Teague that Respondent had slapped Michel's face. On direct examination, the following testimony was elicited from Teague:
Q: And did any child say what happened? A: Yes.
Q: What did they say happened?
A: They said that Ms. Grant slapped Mr. Michel.
The following testimony also was elicited on the direct examination of Teague regarding a statement by student D.L.:
Q: Okay. And do you know if she observed what happened that day?
A: To my knowledge, yes.
Q: And did she say anything to you about what she had observed?
A: Yes.
Q: And what did the student D.L. state?
A: She said that Rodney had gotten slapped and it wasn't right, that we were going to let it go. She felt that we were going to let it go.
Teague testified that Michel never told her that Respondent had slapped him.3/ She examined Michel's face but was unable to determine whether there was any swelling.
On cross-examination, Teague acknowledged that the only information she had regarding whether Respondent had slapped Michel had been relayed to her by students.
As part of the School Police Department investigation, students provided statements that they had seen Respondent slap Michel. Some statements were made on "Witness Statement" forms and were dated March 10, 2014. These statements were not sworn or
affirmed and the time at which each statement was made was not recorded on the form. Other statements were made on "Sworn/Affirmed" forms. Of these statements, some were made on March 10, 2014, at "1930" (7:30 p.m.), and others were made on
March 11, 2014, at "0900" (9:00 a.m.). None of the statements contained a witness signature or otherwise indicated they had been sworn.
Mary Powers, the assistant principal in charge of night school and adult education at Atlantic, testified that after the incident, Michel was brought to her office by others who had been outside the credit lab classroom at the time of the incident. Michel told Powers that Respondent had slapped him in the face.
Powers examined Michel's left cheek, and testified that it appeared swollen.
Kia Allen, assistant principal at Atlantic, also saw Michel's face after the incident, and testified that his jaw appeared swollen.
Petitioner presented the testimony and written statements of school personnel that they saw Michel shortly after the incident, that he appeared upset, and that they were told that Respondent had slapped him.
Petitioner did not present any witness who testified that he or she saw Respondent slap Michel.4/
Respondent herself was the only witness who testified at the hearing who actually saw the entire interaction between Michel and herself on March 10, 2014. As previously stated, Respondent denied having slapped Michel, but testified that she had grabbed his face.
As a result of the incident, Respondent was charged with battery, pursuant to section 784.03(1)(a), Florida Statutes.5/
This statute states that "[t]he offense of battery occurs when a person: 1. [a]ctually and intentionally touches or strikes another person against the will of the other; or 2. [i]ntentionally causes bodily harm to another person."
There is conflicting evidence as to whether Respondent pled "no contest" or "guilty" to the battery charge.6/
Findings of Ultimate Fact
Based on the foregoing, the undersigned finds that Petitioner did not prove, by clear and convincing evidence, that Respondent slapped Michel as alleged in the Petition.
Reduced to its essence, the competent evidence in the record regarding the incident between Respondent and Michel consists of the following:
Respondent's testimony that she entered the credit lab classroom, confronted Michel and grabbed his face, and that she did not slap Michel's face. As noted above, Respondent was the
only witness testifying at the final hearing who was actually present and saw the entire incident between herself and Michel.7/
Testimony by Mary Powers, Kia Allen, and other school personnel who observed Michel's face after the incident, and who testified that Michel's cheek or jaw appeared swollen and that he was upset.
Testimony by Teague, who said she heard a sound that she characterized as sounding like a slap.
This evidence does not clearly and convincingly establish that Respondent slapped Michel.
The testimony by Powers, Allen, Teague, and others to the effect that Michel and other students told them that Respondent slapped Michel is hearsay. Additionally, all of the students' statements, verbal and written, that they saw Respondent slap Michel are hearsay.
This hearsay does not merely "supplement" or explain"8/ the competent evidence in the record; it constitutes the only evidence in the record9/ that definitively would establish the material fact at issue in this proceeding——that is, whether Respondent slapped Michel.
Stated another way, the competent substantial evidence in the record does not clearly and convincingly establish that Respondent slapped Michel.
In its Proposed Recommended Order, Petitioner posits that the students' written statements and their verbal statements to Teague, Powers, Allen, and others fall within various exceptions to the hearsay rule. For the reasons
discussed below, it is determined that these statements, verbal and written, do not fall within an exception to the hearsay rule. Accordingly, they do not constitute competent evidence on which a finding that Respondent slapped Michel may solely be based.
Although there is other competent substantial evidence in the record that suggests that Respondent slapped Michel, that evidence does not clearly and convincingly establish that material fact.
Thus, it is determined that Petitioner did not meet its burden to prove, by clear and convincing evidence, that Respondent slapped a student in the face, as alleged in the Petition.
As such, Petitioner failed to establish that Respondent violated the rules and policies cited in the Petition as the basis for its proposed discipline.
Therefore, Petitioner has not demonstrated just cause to suspend Respondent from her teaching position, without pay, for seven days.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and subject matter of, this proceeding.
This is a disciplinary proceeding in which Petitioner seeks to suspend Respondent from her teaching position, without pay, for seven days, pursuant to section 1012.33, Florida Statutes; Florida Administrative Code Rules 6A-5.056, 6A-10.080, and 6A-10.081; School Board Policies 0.01(2)(c) and (d) 1.013(1), 3.02(4)(a) and (d), 3.02(5)(a)(i), (ii), and (vii), and 3.27; and Article II, Section M of the CBA.
Respondent is an "instructional employee" as defined in section 1012.01(2). Pursuant to sections 1012.22(1)(f) and 1012.33(1)(a) and (6)(a), Petitioner has the authority to suspend her.
To do so, Petitioner must prove that Respondent committed the act alleged, that the act violates the rules and policies cited in the Petition, and that the violation of these rules and policies constitutes just cause for dismissal.
§ 1012.33(1)(a), (6), Fla. Stat.
Ordinarily, the evidentiary burden in disciplinary proceedings in which a school board proposes to suspend or terminate instructional personnel is a "preponderance of the evidence." See, e.g., 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). However, if the school board has agreed, through collective bargaining, to a more demanding evidentiary standard, then it must act in accordance with the applicable contract. See Chiles v. United
Faculty of Fla., 615 So. 2d 671, 672-73 (Fla. 1993); Palm Beach Cnty. Sch. Bd. v. Zedrick Barber, Case No. 15-0047 (Fla. DOAH
Aug. 31, 2015; PBCSB Oct. 13, 2015).
Here, Article II, Section M of the CBA provides that "disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action." Accordingly, Petitioner has the burden of proof in this proceeding by clear and convincing evidence.
This burden, described in Slomowitz v. Walker, 429 So.
2d 797, 800 (Fla. 4th DCA 1983), and later adopted by the Florida Supreme Court in In re Davey, 645 So. 2d 398, 404 (Fla.
1994), requires the following:
[T]he evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
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. Holmes v. Turlington,
480 So. 2d 150, 153 (Fla. 1985); McKinney v. Castor, 66 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d
489, 491 (Fla. 1st DCA 1995).
Here, Petitioner has charged Respondent with slapping a student's face, in violation of rules 6A-5.056, 6A-10.080, and 6A-10.081; School Board Policies 0.01(2)(c) and (d) 1.013(1), 3.02(4)(a) and (d), 3.02(5)(a)(i), (ii), and (vii), and 3.27; and Article II, Section M of the CBA.
For the reasons discussed above, it is determined that Petitioner did not present competent substantial evidence that clearly and convincingly establishes that Respondent committed the conduct——i.e., slapping a student in face——that it alleges violates these rules and policies.
In its Proposed Recommended Order, Petitioner asserts that various verbal and written statements by Michel and other students stating that Respondent slapped Michel are not hearsay. This is incorrect. Hearsay is defined in section 90.801(1)(c), Florida Statutes, as "a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted." Here, it is undisputed that these statements were made out of court and that
they are being offered to prove the truth of the matter asserted. Petitioner did not show that these statements fall within one of the limited exclusions from the definition of hearsay in
section 90.801(2). Accordingly, these statements are hearsay.
The question then becomes whether these statements fall within an exception to the hearsay rule. Petitioner asserts that the statements fall within the exceptions codified at sections 90.803(2), (3), and (6).10/ Each of these exceptions is addressed below.
Excited Utterance
Section 90.803(2) defines an "excited utterance" as "[a] statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition."
The essential elements of the excited utterance exception are: (1) there must be an event startling enough to cause nervous excitement; (2) the statement must have been made before there was time for reflection; and (3) the statement must be made while the person is under the stress of excitement caused by the event. Stoll v. State, 762 So. 2d 870, 873 (Fla. 2000); State v. Jano, 524 So. 2d 660, 661 (Fla. 1988).
As the Florida Supreme Court noted in Jano, for the excited utterance exception to apply, it is not necessary that there be contemporaneity between the event and the statement.
However, as the time between the event and statement increases, courts become more reluctant to find that the exception applies. Where the time interval between the event and the statement is long enough to permit reflective thought, the statement should not be considered an excited utterance, absent proof that the declarant did not engage in the reflective thought process.
See id. at 662. This is because the reliability, and, thus, the
admissibility of an excited utterance is premised on the notion that because the statement or utterance is made while the declarant was under the stress of excitement caused by the event, he or she does not have the reflective capacity necessary for conscious misrepresentation. Brandenburg v. State, 890 So. 2d
267, 269 (Fla. 1st DCA 2004), citing Rogers v. State, 600 So. 2d
237, 240 (Fla. 1995).
Where the statement takes the form of a narrative description of an event, it generally is not considered part of that event, because the narrative nature of the statement shows that the declarant had time to reflect before making the statement. For this reason, narrative statements generally do not fall within the excited utterance exception to the hearsay rule. See Mariano v. State, 933 So. 2d 111, 117 (Fla. 4th DCA 2006);
Charlot v. State, 679 So. 2d 844, 845 (Fla. 4th DCA 1996)(citing Green v. State, 113 So. 121, 123 (Fla. 1927)).
Here, the students' verbal statements to Teague and others do not constitute excited utterances, but, instead, are narrative descriptions of the incidents. By their narrative nature, the statements show that the students had sufficient time to reflect on the event before describing it. Furthermore, D.L.'s statement to Teague manifests not only reflection, but also judgment on her part. The reflective nature of these statements disqualifies them from the excited utterance exception.
Additionally, the proponent of the exception has the burden to show that the time elapsed was sufficiently short to preclude reflective thought. Jano, 524 So. 2d at 662. Although the evidence in this case establishes that Respondent may have been in the credit lab classroom for one to two minutes, the record is devoid of evidence showing that the students' verbal statements were made within a sufficiently short period of time from the incident to show the absence of reflective thought. See
Stoll, 762 So. 2d at 873 (absent evidence that the declarant did
not engage in reflective thought, the statement does not fall within the excited utterance exception). Thus, Petitioner did not show the necessary contemporaneity for the statements to fall within the excited utterance exception.
The students' written statements given on the evening of March 10, 2014, and the morning of March 11, 2014, also are narrative descriptions of the incident which show reflection about
the incident. Further, the statements were made after a sufficient time period had elapsed to enable the students to have engaged in reflective thought. As stated above, absent evidence showing that the students did not engage in reflective thought, the statements cannot be determined to constitute excited utterances. See Stoll, 762 So. 2d at 873.
For these reasons, the student statements do not fall within the excited utterance exception in section 90.803(2). Then-Existing Mental, Emotional, or Physical Condition
Section 90.803(3) codifies the "then-existing mental, emotional, or physical condition" (the so-called "state-of-mind") exception to the hearsay rule. This exception applies to:
statement of the declarant's then- existing state of mind, emotion, or physical sensation, including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health, when such evidence is offered to:
Prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when such state is an issue in the action.
Prove or explain acts of subsequent conduct of the declarant.
However, this subsection does not make admissible:
An after-the-fact statement of memory or belief to prove the fact remembered or believed, unless such statement relates to the execution, revocation, identification, or terms of the declarant's will.
A statement made under circumstances that indicate its lack of trustworthiness.
§ 90.803(3), Fla. Stat. (2015)(emphasis added).
By the statute's plain terms, the only statements that fall within this exception are those regarding the declarant's state of mind, emotion, or physical sensation——and then only when specifically offered for the purpose of proving the declarant's state of mind, emotion, or physical sensation at that time or any other time when such state is an issue in the action. Stoll v.
State, 762 So. 2d 870, 874 (Fla. 2000); Correll v. State, 523 So.
2d 562, 565 (Fla. 1988); Fleming v. State, 457 So. 2d 499, 501
(Fla. 2d DCA 1984); Bailey v. State, 419 So. 2d 721, 722 (Fla. 1st DCA 1982); Kennedy v. State, 385 So. 2d 1020, 1021-22 (Fla. 5th
DCA 1980); Dep't of Fin. Servs. v. Ripa, Case No. 06-3421 (Fla.
DOAH May 16, 2007), modified on other grounds, Case No. 85763-06- AG (Fla. DFS Jun. 15, 2007).11/
Here, the student statements were not about their state of mind, emotion, or physical sensation; rather, they were statements describing an event. Further, they were not offered to prove the students' state of mind, emotion, or physical condition, but instead were offered to prove the actions of Respondent, a third party.
Section 90.803(3)(b)1. makes clear that these types of statements do not fall within this exception. The statute
provides in pertinent part: "(b) [h]owever, this subsection does not make admissible: 1. An after-the-fact statement of memory or belief to prove the fact remembered or believed "
Here, the student statements regarding Respondent's alleged conduct are after-the-fact statements of memory or belief offered to prove the fact remembered or believed. Thus, they are excluded from the "state-of-mind" exception to the hearsay rule.
For these reasons, it is determined that the student statements do not fall within the state-of-mind exception to the hearsay rule in section 90.803(3).
Business Records Exception
Section 90.803(6) codifies the so-called "business records" exception to the hearsay rule. The statute provides:
A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and
s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness. The term "business" as used in this paragraph includes a business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
For a business record to be admissible, the proponent must show that the document was: (1) made at or near the time of the event recorded; (2) made by or from information transmitted by a person with knowledge; (3) kept in the ordinary course of a regularly conducted business activity; and (4) that it was the regular practice of that business to make such a record. Quinn v. State, 662 So. 2d 947, 953 (Fla. 5th DCA 1995).
In Quinn, the court observed that:
[i]t is well-established that although the person who made the report need not have the personal knowledge of the matter recorded, the information recorded in the report must be supplied by persons with knowledge who are acting within the course of regularly conducted business activity. If the initial supplier of information is not acting within the course of the business, the information cannot qualify for admission.
Id. at 953-54 (emphasis added).
In Harris v. Florida Game and Fresh Water Fish
Commission, 495 So. 2d 806 (Fla. 1st DCA 1986), a case factually analogous to this proceeding, the court noted that if the relevant information contained in a business record is itself hearsay, the report does not fall within the business records exception.
The court explained:
[f]or example, if a business record includes a statement of a bystander to an accident, the bystander's statement is hearsay and not included within the business records exception because the statement was not made by a person with knowledge who was acting
within the regular course of the business activity.
Id. at 808-09 (emphasis added).
Petitioner contends that the student statements fall within the business records exception in section 90.803(6) because they were obtained in the course of an investigation by the School Police Department, they were part of Respondent's disciplinary file, and Petitioner's Office of Professional Standards regularly maintains instructional personnel disciplinary records. This contention lacks merit.
Here, Petitioner offers the student statements for the truth of the matter asserted in them. Although the students may have had knowledge of the incident about which the statements were made, they had no business duty to make the statements and were not acting within the ordinary course of business in making the statements. Thus, even though student statements are routinely kept in instructional personnel disciplinary files that are part of Petitioner's business records, the statements do not fall within the business records exception. See id. See also Brooks v. State, 918 So. 2d 181 (Fla. 2005)(if the initial supplier of
information in a record is not acting within the course of the business, the information does not fall within the business records exception); Visconti v. Hollywood Rental Serv., 580 So. 2d
197, 198 (Fla. 4th DCA 1991)(patient statement regarding slip and
fall not within business records exception because she did not have a business duty to provide such statement); Van Zant v.
State, 372 So. 2d 502, 503-04 (Fla. 1st DCA 1979)(information in a
document did not fall within the business records exception because even though the declarant had personal knowledge about the information, he did not have a business duty to transmit the information).
The written statements made by Powers, Allen, and other school personnel regarding the verbal statements that students made about the incident also do not fall within the business records exception; this is because the school personnel themselves lack personal knowledge about the incident.12/
To that point, in Reichenburg v. Davis, 846 So. 2d 1233, 1234 (Fla. 5th DCA 2003), the court held that investigative reports containing the results of witness interviews did not fall within the business records exception. The court observed:
[t]he problem here is that, in both reports, the authors simply related the substance of what the witnesses had told the authors.
These witness's statements, even though contained within the business's records, did not fall within the exception, because they were not based upon the personal knowledge of an agent of the business.
Similarly, here, the statements provided by school personnel relate what the students said to them about the incident. Even though the school personnel statements containing
the student statements are maintained in the District's records, these personnel do not have personal knowledge of the incident. As such, their statements and the student statements relayed therein do not fall within the business records exception to the hearsay rule.
For these reasons, the written student statements and statements of school personnel do not fall within the business records exception to the hearsay rule under section 90.803(6). Conclusion
Based on the foregoing, it is determined that the competent substantial evidence in the record does not clearly and convincingly establish that Respondent slapped a student in the face, as alleged in the Petition.
Because Petitioner did not prove the conduct alleged as the basis for its proposed disciplinary action against Respondent, it has not demonstrated that she violated the rules, School Board Policies, and other provisions cited in the Petition.
Accordingly, it is concluded that there is no just cause under section 1012.33 to suspend Respondent from her teaching duties, without pay, for seven days.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Palm Beach County School
Board, enter a final order dismissing the charges against Respondent.
DONE AND ENTERED this 3rd day of February, 2016, 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 3rd day of February, 2016.
ENDNOTES
1/ See note 9, infra. At the hearing, the undersigned reserved ruling on the admissibility of the deposition testimony of D.L., a student, contingent on Petitioner showing that she was unavailable to testify at the hearing. After the hearing, Petitioner filed Petitioner's Notice of Withdrawing Exhibit #24, Deposition of Minor Student D.L.
2/ Unless otherwise stated, all references to chapter 1012, Florida Statutes, are to the 2013 version, which was in effect at the time of the alleged conduct giving rise to this proceeding.
3/ The testimony on this point was as follows:
Q. And during that one to two minutes that Ms. Grant-Straghn was in there, was there any——was that time for the students to have embellished anything?
A. I don’t know. You know, I can't say that they didn't or they didn't embellish. I don't know. He never, by the way, said that she slapped him.
Q. Did not say that to you?
A. Other students said it. He never said it.
4/ See note 1, supra.
5/ Section 784.03(1)(b), Florida Statutes, states in relevant part: "[e]xcept as provided in subsection (2), a person who commits battery commits a misdemeanor of the first degree "
Subsection (2) makes the commission of a second or subsequent battery a felony. There is no evidence in the record indicating that Respondent was charged with felony battery.
6/ Under section 784.03(1)(a), intentionally grabbing the face of another person against that person's will would constitute battery. Neither the Judgment nor the Plea in County Court ("Plea"), both dated December 11, 2014, indicate whether Respondent was charged with having slapped Michel's face or having grabbed his face. Thus, it cannot be inferred that either the Judgment or the Plea constitute an admission by Respondent that she slapped Michel's face.
7/ Even if Respondent's testimony that she did not slap Michel was not deemed credible, Petitioner still has the burden to prove, by clear and convincing evidence, that she slapped him. See Balino v. Dep't of Rehab. Servs., 348 So. 2d 349, 351 (Fla. 1st DCA 1977). As discussed herein, Petitioner has not met this burden.
8/ Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but is not sufficient in itself to support a finding of fact unless it would be admissible over objection in a civil action. § 120.57(1)(c), Fla. Stat. (2015). The hearsay evidence in this proceeding was not shown to fall within any exceptions to the hearsay rule. Accordingly, it cannot constitute the sole basis of a finding of fact in this proceeding.
9/ See note 1, supra. Petitioner offered the deposition of student D.L. for admission into evidence in lieu of in-person testimony at the hearing. The undersigned reserved ruling on the request to admit the deposition pending demonstration by Petitioner that D.L. was unavailable to testify at the hearing, as required by Florida Rule of Civil Procedure 1.330. To her credit, counsel for Petitioner subsequently notified the undersigned,
through Petitioner's Notice of Withdrawing Exhibit #24 Deposition of Minor Student D.L., that D.L. had not been subpoenaed to testify at the final hearing and that the district employee who had facilitated D.L.'s appearance for deposition had not contacted her parents regarding her availability to testify at the hearing. Because Petitioner was thus unable to demonstrate that D.L. was unavailable, as required by rule 1.330, Petitioner withdrew the request to admit D.L.'s deposition into evidence.
10/ In its Proposed Recommended Order, Petitioner cites "Rule 803" of the "Fl. R. Civ. P."——the Florida Rules of Civil Procedure——as the source of the hearsay exceptions it contends apply. The undersigned notes that the hearsay rule and exceptions to the rule are codified in chapter 90, Florida Statutes, the Florida Evidence Code, and that the hearsay exceptions Petitioner cites are codified at sections 90.803(2), (3), and (6).
11/ As explained in 46 Fla. Jur. Evidence and Witnesses § 317 (2nd 2015), because these statements concern an existing bodily or mental condition, they possess a spontaneous quality. Id. at n.5.
12/ No evidence was presented specifically showing that these school employees were under a business duty to make such statements; however, even if this predicate were met, Powers, Allen, and the other school personnel who provided the written statements did not have personal knowledge of the incident.
COPIES FURNISHED:
Jean Marie Middleton, Esquire School Board of Palm Beach County Office of General Counsel
3300 Forest Hill Boulevard, Suite C-323 Post Office Box 19239
West Palm Beach, Florida 33416-9239 (eServed)
Dedrick D. Straghn, Esquire Dedrick D. Straghn, Attorney and
Counselor at Law
26 Southwest 5th Avenue Delray Beach, Florida 33444 (eServed)
Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244
325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Pam Stewart
Commissioner of Education Department of Education Turlington Building, Suite 1514
325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Dr. Robert Avossa, Superintendent Palm Beach County School Board
3300 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406-5869
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 |
|---|---|---|
| Jun. 01, 2016 | Agency Final Order | |
| Feb. 03, 2016 | Recommended Order | Petitioner failed to prove, by clear and convincing evidence, that Respondent committed the conduct alleged in the administrative charging document, so failed to show that just cause exists to suspend her without pay from her teaching position. |
PAM STEWART, AS COMMISSIONER OF EDUCATION vs ROBIN LOCKERY, 14-005823TTS (2014)
PINELLAS COUNTY SCHOOL BOARD vs DALE DAVIS, 14-005823TTS (2014)
PAM STEWART, AS COMMISSIONER OF EDUCATION vs ROBIN LOCKERY, 14-005823TTS (2014)
DR. ERIC J. SMITH, AS COMMISSIONER OF EDUCATION vs KENNETH GRIFFIN, 14-005823TTS (2014)
MANATEE COUNTY SCHOOL BOARD vs CHARLES E. WILLIS, 14-005823TTS (2014)
