STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD,

vs.

Petitioner,

Case No. 17-0663TTS

CHEVAS CLEMENTS,

Respondent.

/

RECOMMENDED ORDER

On May 9, 2017, Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings (DOAH), conducted the final hearing by videoconference in Miami and Tallahassee,

Florida.

APPEARANCES

For Petitioner: Kim M. Lucas, Esquire

Miami Dade County Public Schools School Board Attorney's Office

1450 Northeast Second Avenue, Suite 430

Miami, Florida 33132

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

STATEMENT OF THE ISSUE

The issue is whether Petitioner has just cause to suspend Respondent without pay for thirty days for misconduct in office, as provided in Florida Administrative Code Rule 6A-5.056(2) and School Board Policies 3210, 3210.01, and 3213, for using profanity toward a student and engaging with the student's parent in a violent confrontation with profanity and threats.

PRELIMINARY STATEMENT

The Notice of Specific Charges dated April 7, 2017, alleges that Petitioner employed Respondent in 1999. The Notice of Specific Charges alleges that, in June 2016, Respondent used profanity toward a student, whom he also called names. Later, on the same day, Respondent allegedly engaged with the student's parent using profanity and issuing threats and then refused to leave the area when instructed to do so by the principal

and assistant principal. The Notice of Specific Charges alleges that Respondent committed misconduct in office by violating Florida Administrative Code Rules 6A-5.056(2) and 6A-10.081(1)(a)-(c), (2)(a)1. and 5.-7., and (c)4., as well as various provisions of the above-cited School Board policies.

On January 25, 2017, Petitioner suspended Respondent without pay for thirty days. On January 31, 2017, Respondent requested a formal administrative hearing.

At the hearing, Petitioner called four witnesses and offered into evidence 21 exhibits: Petitioner Exhibits 1 through 11, 18, and 30 through 38. Respondent called two witnesses and offered into evidence three exhibits: Respondent Exhibits 2 through 4. All exhibits were admitted except Petitioner Exhibits 18 and 30 through 34 and Respondent

Exhibit 4, which were proffered.

The court reporter filed the transcript on June 26, 2017, and the parties filed proposed recommended orders by July 6, 2017.

FINDINGS OF FACT

1. For the 2015-16 school year, Petitioner employed Respondent as a physical education teacher at Homestead Middle School. On May 27, 2016, Respondent and another physical education teacher, George Malvestutl, had instructed the students to leave the girls' locker room after physical education class. About 20 minutes later, the teachers saw a student hiding in the locker room. The teachers entered the locker room and found three students still in the locker room without permission.

2. When Respondent directed the students to leave the locker room, one or more of the students became belligerent and yelled at him in defiance. Mr. Malvestutl called security to escort the girls out of the locker room. About one minute after

   
   

   Respondent had first engaged with the students and before security could arrive, the students left the locker room, but the situation escalated when the teachers directed the students to report to the office. At this point, the students used profanity toward Respondent, and one of them threatened to call her father to come to school and "kick [Respondent's] ass." After several minutes, they left the area and walked toward their class in direct defiance of the teachers' directive to report to the office.

3. Respondent did not have time to report the incident to the office because he had a class to teach. But, about

   30 minutes after the confrontation had ended, Respondent received a call from the principal's secretary directing Respondent to come to the office. When he entered the office, the secretary pointed him to a man who was waiting to see Respondent.

4. Without introducing himself or informing himself about what had happened, the man immediately threatened to "kick [Respondent's] ass" and said something about his daughter. Respondent answered that the man needed to learn about what had taken place and walked away from the man, leaving the office. The man followed Respondent into the hallway and, standing about ten feet from Respondent, continued to threaten Respondent, who suggested that the daughter was misbehaving due to the

   
   

   misbehavior of the father, who was behaving "like an idiot," Respondent added.

5. The exchange was briefly heated, although probably more while in the office than in the hallway. The exchange in the hallway lasted no more than one minute, and the exchange in the office was even briefer. At no time did either man place a hand on the other. Eventually, the angry father calmed, as he realized that his daughter had not told him the entire story.

6. During the exchange in the hallway, the assistant principal entered the hallway, but did not say anything and quickly retreated to his office to call the police, although the entire incident had ended before the police arrived on the scene. The principal entered the hallway and, at one point, blocked the father's path toward Respondent, but the principal did not say anything either. After the incident, Respondent asked the principal if he could go home for the day, but the principal asked him to remain if he could, and Respondent agreed to remain at school. Later that day, the principal visited Respondent and asked him if he was okay. Respondent replied that he was fine, and the principal smiled.

7. On direct, the principal testified that Respondent uttered profanity during his confrontation with the parent-- specifically using the "f" word several times and the "n" word once. Respondent, who is black, denied the use of any

   
   

   profanity, including these words. The principal's credibility was undermined by the fact that he omitted these important details when he gave his statement to the school police a few days after the incident.

8. Based on the testimony that has been credited, Petitioner has failed to prove that Respondent mishandled in any way the two exchanges with the angry parent, who clearly either misunderstood what his daughter had told him or was misled by

   his daughter.

   
   

   CONCLUSIONS OF LAW

   
   

9. DOAH has jurisdiction of the subject matter.

   
   

   §§ 120.569, 120.57(1), and 1012.33(6)(a)2., Fla. Stat. (2015).

   
   

10. Petitioner bears the burden of proving the material allegations by a preponderance of the evidence. § 120.57(1)(j); Allen v. Sch. Bd. of Dade Cnty., 571 So. 2d 568 (Fla. 3d DCA 1990) (teacher-dismissal case).

11. Petitioner may dismiss an employee for just cause.

    
    

    § 1012.33(1)(a) and (6)(a). Just cause includes misconduct in office. § 1012.33(1)(a). Rule 6A-5.056(2) defines "misconduct in office" as behavior that disrupts the students' learning environment or that reduces the ability of the teacher or his colleagues to perform their duties effectively, as well as any violation of the Code of Ethics, as set forth in rule 6A-10.080;

    
    

    the Principles of Professional Conduct, as set forth in rule 6A- 10.081; or the School Board policies.

12. Petitioner failed to prove that Respondent mishandled his exchanges with the irate father. After the father angrily confronted Respondent in the office, Respondent sensibly retreated, but the parent followed Respondent into the hallway. In the hallway, Respondent briefly tried to give the father some needed perspective and appears to have been able to de-escalate the situation somewhat. The limited involvement of the principal was directed toward preventing the father, not Respondent, from initiating physical contact.

13. Section 1012.33(6)(a) provides that, when a school board fails to sustain the charges underlying a dismissal of suspension of an instructional employee, the school board must reinstate the employee with back salary.

RECOMMENDATION

It is

RECOMMENDED that Petitioner enter a final order finding that the 30-day suspension of Respondent without pay lacked just cause and, pursuant to section 1012.33(6)(a), reinstate Respondent, if necessary, and pay Respondent his back salary.

DONE AND ENTERED this 7th day of July, 2017, in Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

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 7th day of July, 2017.

COPIES FURNISHED:

Mark Herdman, Esquire Herdman & Sakellarides, P.A. Suite 110

29605 U.S. Highway 19 North

Clearwater, Florida 33761 (eServed)

Kim M. Lucas, Esquire

Miami Dade County Public Schools School Board Attorney's Office

1450 Northeast Second Avenue, Suite 430

Miami, Florida 33132 (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)

Alberto M. Carvalho, Superintendent Miami Dade County School Board

1450 Northeast Second Avenue, Suite 912

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: 17-000663TTS

Orders for Case No: 17-000663TTS