STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD,

vs.

Petitioner,

Case No. 15-0047TTS

ZEDRICK BARBER,

Respondent.

/

RECOMMENDED ORDER

This case came before Administrative Law Judge John G. Van Laningham for final hearing by video teleconference on June 4, 2015, at sites in Tallahassee and West Palm Beach, Florida.

APPEARANCES

For Petitioner: Jean Marie Middleton, Esquire

School District 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

For Respondent: Mark S. Wilensky, Esquire

Dubiner and Wilensky, LLC

1200 Corporate Center Way, Suite 200

Wellington, Florida 33414-8594

STATEMENT OF THE ISSUES

The primary issue in this case is whether, as the district school board alleges, a teacher used inappropriate force against one or more students; if the allegations of wrongdoing are proved to be true, then it will be necessary to decide whether the school board has just cause to impose a ten-day suspension without pay on the teacher as punishment.

PRELIMINARY STATEMENT

At its regular meeting on November 4, 2014, Petitioner Palm Beach County School Board voted to approve the superintendent's recommendation that Respondent Zedrick Barber be suspended without pay for ten days from his employment as a teacher. The reasons for this action were later spelled out in a Petition issued on December 4, 2014. In that charging document,

Mr. Barber was accused of having used inappropriate force against two of his students during separate incidents occurring, respectively, in February and March of 2014.

By letter dated November 26, 2014, Mr. Barber timely requested a formal administrative hearing to contest Petitioner's intended action. Shortly thereafter, Petitioner forwarded the matter to the Division of Administrative Hearings, which opened a file on January 7, 2015.

At the final hearing, which took place on June 4, 2015, Petitioner called the following witnesses, each of whom was an

employee of Petitioner at all times relevant to this proceeding: Micaela Alford, Mr. Barber, Ezra Dilbert, Donald Hoffman, and Vincent Caracciolo. Petitioner's Exhibits 4 (Bates pp. 11-13 and 17-20), 7 (Bates pp. 131-150), 27, 42, and 98 were received in evidence. Mr. Barber did not present a case but rested at the close of Petitioner's.

The final hearing transcript was filed on June 22, 2015.

Each party timely filed a Proposed Recommended Order on August 6, 2015, the deadline established at the conclusion of the hearing.

Unless otherwise indicated, citations to the official statute law of the state of Florida refer to Florida Statutes 2015, except that all references to statutes or rules defining disciplinable offenses or prescribing penalties for committing such offenses are to the versions that were in effect at the time of the alleged wrongful acts.

FINDINGS OF FACT

1. The Palm Beach County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Palm Beach County Public School System.

2. At all times relevant to this case, Respondent Zedrick Barber ("Barber") was employed as a history teacher at Howell L.

   
   

   Watkins Middle School in Palm Beach Gardens, a position which he had held for the preceding eight years.

3. This case arises from two separate incidents, which occurred in the spring of 2014. In both situations, the School Board alleges, Barber used inappropriate force against a student. Barber acknowledges that he made physical contact with a student on each occasion but claims that he did so——reasonably under the circumstances——to prevent harm to the student, other students, and himself. As Barber is the only person having personal knowledge of the events in question who testified at hearing, the evidence supports his accounts. The findings below are based on Barber's testimony and statements concerning the incidents.

4. The earlier episode occurred on February 5, 2014. On that day, a girl in Barber's class named D.G. became angry at the boy sitting behind her because he kept placing his feet on the back of her chair. Attempting to discourage him from continuing to annoy her in this manner, D.G. began punching the boy's legs. He refused to budge, however, which merely increased D.G.'s frustration. She grew increasingly loud and disruptive, causing Barber to intervene. He instructed D.G. to stop hitting the boy, and she calmed down.

5. Before long, though, D.G. resumed punching the boy.

   
   

   Barber directed D.G. to place a chair just outside the classroom

   
   

   door and sit there, where Barber could keep an eye on her. This upset D.G., who shoved a book in Barber's direction, which fell from her desk to the floor.

6. D.G. then rose from her seat. Instead of obeying Barber's instruction to relocate, D.G. turned her back on the teacher and started pushing her desk toward the boy who had aggravated her. At this point, Barber stepped in to prevent

   D.G. from overturning the desk and hurting the boy. He reached out and grabbed D.G.'s belt loop, pulling her towards himself.

   D.G. broke free and ran out of the room. She was later returned to Barber's classroom and finished the day without further incident.

7. Under the circumstances, Barber's de minimis contact with D.G.'s person constituted a reasonable effort to protect

   D.G. and others from personal injury or conditions harmful to learning.

8. The second incident took place on March 31, 2014. J.T. entered Barber's classroom that day brandishing a blister pack of pills and bragging that he had drugs. Barber told J.T. to sit down, for the students would be taking a quiz.

9. During the quiz, J.T. became disruptive, jumping up and exclaiming that he needed to leave, to take his pills. Barber, who had not received any notice that J.T. had a legitimate reason to take medication while in school, reasonably refused to

   
   

   let J.T. out of class to ingest pills, the nature of which Barber was unaware. Barber instructed J.T. to take a seat and finish his assignment.

10. J.T., however, continued to misbehave, demanding to take the pills. Barber made a gesture which signaled that he would push the classroom "panic button" to call for assistance if J.T. persisted in making trouble. This did not deter J.T., who stood up defiantly. Barber feared he might bolt for the door and moved to block J.T.'s exit.

11. As Barber walked toward the door, J.T. charged the teacher. J.T. stumbled as he drew near to Barber, striking him in the chest with both fists as he fell forward. Barber held J.T.'s arms, pinning them against the student's sides, while asking J.T. to calm down. J.T. screamed, "Let me go!" J.T. struggled to escape and began kicking Barber repeatedly.

12. While restraining J.T. in an embrace-like hold to prevent the student from assaulting him or others, Barber pressed the panic button to summon assistance. A security guard soon arrived and Barber let go of J.T. The student made a sudden movement as if to hit Barber, but the guard quickly took hold of J.T. and removed him from the classroom.

13. Under the circumstances, Barber's physical contact with J.T., which was defensive in nature, constituted a

    
    

    reasonable effort to protect J.T. and others (including Barber himself) from personal injury or conditions harmful to learning.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to sections 1012.33(6)(a)2., 120.569, and 120.57(1), Florida Statutes.

15. A district school board employee against whom a disciplinary proceeding has been initiated must be given written notice of the specific charges prior to the hearing. Although the allegations "need not be set forth with the technical nicety or formal exactness required of pleadings in court," Jacker v.

    School Board of Dade County, 426 So. 2d 1149, 1150 (Fla. 3d DCA 1983), the charging document should "specify the rule the agency alleges has been violated and the conduct which occasioned the violation of the rule," id. at 1151 (Jorgenson, J. concurring).

16. Once the school board, in its notice of specific charges, has delineated the offenses alleged to justify suspension or termination, those are the only grounds upon which such action may be taken. See Lusskin v. Ag. for Health Care Admin., 731 So. 2d 67, 69 (Fla. 4th DCA 1999); Cottrill v. Dep't

    of Ins., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Klein v. Dep't of Bus. & Prof'l Reg., 625 So. 2d 1237, 1238-39 (Fla. 2d

    DCA 1993); Delk v. Dep't of Prof'l Reg., 595 So. 2d 966, 967

    
    

    (Fla. 5th DCA 1992); Willner v. Dep't of Prof'l Reg., Bd. of

    
    

    Med., 563 So. 2d 805, 806 (Fla. 1st DCA 1990), rev. denied, 576

    
    

    So. 2d 295 (Fla. 1991).

    
    

17. In an administrative proceeding to suspend or dismiss a member of the instructional staff, the school board ordinarily bears the burden of proving, by a preponderance of the evidence, each element of the charged offense(s). See, e.g., McNeill v.

    Pinellas Cnty. Sch. Bd., 678 So. 2d 476, 477 (Fla. 2d DCA 1996).

    
    

    If the school board has agreed, through collective bargaining, to a more demanding standard, however, 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).

18. Article II, Section M, of the applicable Collective Bargaining Agreement 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." The School Board's burden, accordingly, is to prove the facts alleged as grounds for suspending Barber by clear and convincing evidence.

19. Regarding the standard of proof, in Slomowitz v.

    
    

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

    
    

    developed a "workable definition of clear and convincing evidence" and found that of necessity such a definition would

    
    

    need to contain "both qualitative and quantitative standards." The court held that:

    clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the 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.

    
    

    Id. The Florida Supreme Court later adopted the Slomowitz court's description of clear and convincing evidence. See In re

    Davey, 645 So. 2d 398, 404 (Fla. 1994). The First District Court of Appeal also has followed the Slomowitz test, adding the

    interpretive comment that "[a]lthough this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Elec. Corp.

    v. Shuler Bros., Inc., 590 So. 2d 986, 988 (Fla. 1st DCA 1991), rev. denied, 599 So. 2d 1279 (Fla. 1992)(citation omitted).

20. The instructional staff member's guilt or innocence is a question of ultimate fact to be decided in the context of each alleged violation. McKinney v. Castor, 667 So. 2d 387, 389

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

    
    

21. In its Petition, the School Board asserted several theories for suspending Barber, each of which depends on allegations that, on separate occasions in 2014, Barber used inappropriate force against D.G. and J.T., respectively. The School Board, however, failed to prove these essential allegations, even by the lesser standard of preponderant evidence. To the contrary, although Barber had no burden to establish his innocence, the facts as set forth above demonstrate that he complied with the Principles of Professional Conduct for the Education Profession in Florida when he reasonably made contact with students who, during their respective outbursts, were being disruptive and disorderly, potentially endangering others and causing the kind of commotion that interferes with classroom instruction and is harmful to learning. See Fla. Admin. Code R. 6A-10.081(3)(a)(The teacher "[s]hall 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."); see also Packer v. Orange Cnty. Sch. Bd., 881 So. 2d 1204, 1208 (Fla. 5th DCA

    2004)(school board must adopt ALJ's finding that there was no improper touching when teacher applied reasonable force against a disruptive student for the lawful purposes of maintaining order and protecting others).

    
    

22. Thus, all of the charges against Barber necessarily fail, as a matter of fact. Due to this dispositive failure of proof, it is not necessary to make additional conclusions of

law.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order exonerating Barber of all charges brought against him in this proceeding.

DONE AND ENTERED this 31st day of August, 2015, in Tallahassee, Leon County, Florida.

S

JOHN G. VAN LANINGHAM

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 31st day of August, 2015.

COPIES FURNISHED:

Jean Marie Middleton, Esquire

School District 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)

Mark S. Wilensky, Esquire Dubiner and Wilensky, LLC

1200 Corporate Center Way, Suite 200

Wellington, Florida 33414-8594 (eServed)

Dr. Robert Avossa, Superintendent Palm Beach County School Board 3300 Forest Hill Boulevard, C-316

West Palm Beach, Florida 33406-5869 (eServed)

Pam Stewart, Commissioner of Education Department of Education

Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)

Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)

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: 15-000047TTS

Orders for Case No: 15-000047TTS