STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD,

vs.

Petitioner,

Case No. 17-6849TTS

ZEDRICK BARBER,

Respondent.

/

RECOMMENDED ORDER

A hearing was conducted in this case pursuant to

sections 120.569 and 120.57(1), Florida Statutes (2018),1/ before Cathy M. Sellers, an Administrative Law Judge of the Division of Administrative Hearings ("DOAH"), on April 18 and 19, 2018, in West Palm Beach, Florida, and by video teleconference on June 18, 2018, at sites in Tallahassee and West Palm Beach, Florida.

APPEARANCES

For Petitioner: Jean Marie Middleton, Esquire

School District of Palm Beach County Office of the General Counsel

3300 Forest Hill Boulevard, Suite C-331 West Palm Beach, Florida 33406

For Respondent: Nicholas Anthony Caggia, Esquire

Law Office of Thomas L. Johnson, P.A.

510 Vonderburg Drive, Suite 309 Branson, Florida 33551

Zedrick D. Barber, II, Esquire The Barber Firm LLC

4440 PGA Boulevard, Suite 600 Palm Beach Gardens, FL 33410

STATEMENT OF THE ISSUE

Whether just cause exists for Petitioner to suspend Respondent from his teaching position, without pay, for 15 days, and to terminate his employment as a teacher.

PRELIMINARY STATEMENT

On November 17, 2017, the superintendent for the School District of Palm Beach County, Florida, notified Respondent, Zedrick Barber, that he was recommending to Petitioner, Palm Beach County School Board, that Respondent be suspended from his teaching duties, without pay, for 15 days, and that his employment as a teacher with the Palm Beach County School District ("District") be terminated. On December 13, 2017, Petitioner took action to suspend Respondent for 15 days and to terminate his employment. 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 20 and 21, 2018, but was continued to April 18 and 19, 2018. The hearing was commenced on April 18, 2018, but did not conclude as scheduled on April 19, 2018, and was continued. Pursuant to the parties' request, the final day of the hearing was conducted and concluded on June 18, 2018.

In its case-in-chief, Petitioner presented the in-person testimony of Respondent; student K.B.; Jon Erik Bell; Richard Brown; Donald Hoffman; Chantres Allen-Smith; Anna Sloan; student J.V.; Sergeant Matthew Baxter; Daphne DeBarnes; and Brenda Johnson. Petitioner's Exhibits 1, 1-A through 1-E, 3, 4,

7 through 10, 12 through 20, 27, and 28 were admitted into evidence. Respondent testified on his own behalf and presented the testimony of Brenda Johnson. Respondent's Exhibits 1 and 7 were admitted into evidence without objection and Respondent's Exhibits 4 through 6 were admitted into evidence over objection. On rebuttal, Petitioner presented the testimony of Donald Hoffman, Angela Hammond, and Sergeant David Nissensohn.

The four-volume Transcript was filed at DOAH on August 1, 2018. Pursuant to the parties' joint agreement made at the close of the final hearing, the deadline for filing proposed recommended orders was extended to 30 days after the date the Transcript was filed. Pursuant to motion, the deadline was extended to September 10, 2018. Both parties' proposed recommended orders were timely filed, and Petitioner subsequently filed an Amended Proposed Recommended Order on September 11, 2018. The parties' proposed recommended orders have been duly considered in preparing this Recommended Order.

FINDINGS OF FACT

1. The Parties

   
   

   1. 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.

   2. Respondent has been employed by the District as a teacher since 2005. His last teaching assignment was as an eighth grade history teacher at Howell L. Watkins Middle School ("Watkins"), where he taught for approximately 12 years.

2. Administrative Complaint Charges

   
   

   1. The Administrative Complaint alleges that on or about January 19, 2017, Respondent engaged in the following conduct with respect to a student, K.B.: "10. . . . a. [p]ush[ing] her into the dry board; b. [g]rabbing the student victim’s backpack causing her to fall; c. [p]ulling the victim’s arms and dragging her by one arm and one leg; and d. [d]ragging the student victim by the ankle and wrist."

   2. As a result of this alleged conduct, Petitioner has charged Respondent, in the Administrative Complaint, with violating the following statutes, rules, and School Board policies: sections 1008.24(1)(c), (1)(f), and (1)(g), 1012.22(1)(f), and 1012.27(5), Florida Statutes; Florida

      
      

      Administrative Code Rules 6A-5.056(2) and 6A-10.081(2)(a)(1), (2)(a)(5), and (2)(c)(1); and School Board Policies 0.01(2)(3) and (2)(4); 3.02(4)(a), (4)(d), and (4)(f); 3.02(5)(a)(ii),

      (5)(a)(viii), (5)(c)(vii) and (5)(i); 1.013(1); 1.1013; and 3.27;

      
      

      and article II, section M of the County Teachers' Association Collective Bargaining Agreement ("CBA").

   3. The Administrative Complaint does not charge Respondent with having committed gross insubordination in violation of

      rule 6A-5.056(4).

      
      

3. Evidence Adduced at Hearing

   
   

   1. The incident giving rise to this proceeding occurred on January 19, 2017, at Watkins, in Respondent's classroom and in the hallway immediately outside of Respondent's classroom.

   2. On that day, K.B., a student in Respondent's class, put her head down on her desk and refused to participate in the class's activities, despite being told repeatedly by Respondent to lift her head off of her desk and to participate in class activities.

   3. Frustrated with K.B.'s refusal to obey his repeated directives to lift her head off of her desk and participate in the class, Respondent ordered K.B. to get out of his classroom.

   4. The evidence does not clearly and convincingly establish whether, or what type, of physical interaction between Respondent

      
      

      and K.B. may have occurred as she was leaving, but was still inside the classroom.2/

   5. The undisputed evidence establishes that as K.B. was walking toward the door to leave the classroom, she intentionally knocked a book off of a desk, causing it to fall to the floor.

   6. Respondent ordered K.B. to pick up the book, but she did not do so and exited the classroom.

   7. The evidence clearly and convincingly establishes that as K.B. opened the door and attempted to exit the classroom, Respondent detained her by grabbing her backpack. K.B. pushed forward in an attempt to resist being detained by Respondent, and as a result, fell to the floor in the hallway immediately adjacent to the open classroom door.3/

   8. The evidence clearly and convincingly establishes that Respondent placed his hands on K.B.'s wrist and ankle as she was lying on the floor and dragged her back into the classroom.4/

   9. Once K.B. and Respondent were back inside the classroom, Respondent ordered K.B. to pick up the book that she had pushed to the floor and to place it back on the desk. She complied, but then again intentionally pushed the book off of the desk onto the floor and again exited the classroom.

   10. The evidence clearly and convincingly establishes that as K.B. ran out of the open classroom door, Respondent again grabbed K.B. by her backpack. K.B. pushed forward to resist being

       
       

       physically detained by Respondent, and, as a result, again fell to the floor of the hallway. Respondent placed his hands on K.B.'s wrist and ankle as she was lying on the floor and again dragged her back into the classroom.5/

   11. As K.B. and Respondent exited the classroom the second time, teacher Angela Hammond, whose classroom was immediately next door to Respondent's and who said she heard a "commotion," came out of her classroom into the hall. Hammond observed Respondent dragging K.B., who was lying on the floor, back into his classroom.

   12. Hammond entered Respondent's classroom and observed K.B. pick up a book that was on the floor, place it on a desk, and then slide it off of the desk onto the floor.

   13. At that point, Hammond took K.B. into her (Hammond's) classroom, and talked to K.B. in an effort to calm her down. At some point, Respondent also entered Hammond's classroom to talk to

       K.B. in an effort to determine if she was alright and to calm her

       
       

       down.

       
       

   14. The clear and convincing evidence, consisting of K.B.'s

       
       

       own testimony, establishes that she was not physically injured as a result of any aspect of the incident, including having been pulled by her ankle and wrist by Respondent. K.B. testified that she was extremely angry with Respondent as a result of the incident.

       
       

   15. The evidence establishes that before the incident, Respondent and K.B. enjoyed a mentor-mentee relationship.

       K.B. would talk to Respondent about her personal and school- related problems. Respondent would advise K.B. regarding engaging in more appropriate behavior at school, and would encourage her academic performance. K.B. testified that Respondent was one of her favorite teachers and that Respondent's class was the only one she had enjoyed in the 2016-2017 school year. To that point, K.B. wrote a letter to Respondent, telling him that she enjoyed his class, that he was a good teacher, and that she appreciated his help and encouragement. When asked whether the January 19, 2017, incident had changed her opinion of Respondent, she testified: "[n]ot really, because we both were in the wrong."

   16. Donald Hoffman, the principal at Watkins during the 2016-2017 school year, testified that the proper means for dealing with students who present behavioral problems during class is to use the in-classroom buzzer, which is mounted on the classroom wall, to call for assistance from school administration staff. Hoffman testified that all teachers at Watkins are apprised of this protocol.

   17. Respondent acknowledged that he was aware of this protocol, but that he did not use the buzzer to call for assistance in dealing with K.B.'s defiant behavior in the classroom or as she left the classroom. He acknowledged that he

       
       

       could have handled the situation in a more appropriate manner than he did in physically detaining K.B.

   18. Respondent testified, credibly, that he physically detained K.B. to prevent her from getting into trouble with the school's administration, and possibly being returned to the alternative school from which she had transferred, for having left his classroom during the class period.

   19. The Watkins Faculty & Staff Handbook ("Faculty Handbook") for fiscal year 2017 ("FY '17"), pages 33 and 34, contains a policy, regarding student detention. This policy states, in pertinent part: "The Principal, Assistant Principal, teacher, media specialist, or others engaged in administrative or instructional capacity in public schools, shall be authorized to temporarily detain and question a student under circumstances which reasonably indicate that such a student has committed, is committing, or is about to commit a violation of law."

   20. There is no persuasive evidence establishing that K.B. had committed, was committing, or was about to commit a crime. Therefore, the policy on pages 33 and 34 of the Faculty Handbook does not authorize Respondent's physical detention of K.B.

   21. Hoffman testified that the administration at Watkins does "not promote physical contact with students in any negative manner," and that, generally, only the administration is permitted to detain students at Watkins.

       
       

   22. Respondent previously has been disciplined by Petitioner.6/

   23. One prior disciplinary action——consisting of a written reprimand issued on May 23, 2013, in which Respondent was reprimanded for engaging in "horseplay" with a student——is germane to this proceeding because it is an action that falls within the Progressive Discipline process established in the CBA, section 7.7/

4. Findings of Ultimate Fact

1. The Administrative Complaint charges Respondent with having violated various statutes, State Board of Education rules, and School Board policies.

2. 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

rule 6A-5.056(2), which states:

6A-5.056 Criteria for Suspension and Dismissal.

"Just cause" means cause that is legally sufficient. Each of the charges upon which just cause for a dismissal action against specified school personnel may be pursued are set forth in Sections 1012.33 and 1012.335,

F.S. In fulfillment of these laws, the basis for each such charge is hereby defined:

* * *

1. "Misconduct in Office" means one or more of the following:

   
   

   1. A violation of the Code of Ethics of the Education Profession in Florida as adopted in Rule 6A-10.080, F.A.C.;

      
      

   2. A violation of the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6A- 10.081, F.A.C.;

      
      

   3. A violation of the adopted school board rules;

      
      

   4. Behavior that disrupts the student’s learning environment; or

      
      

   5. Behavior that reduces the teacher’s ability or his or her colleagues’ ability to effectively perform duties.

1. Petitioner also has charged Respondent with violating rule 6A-10.081(2), which states, in pertinent part:

   1. Florida educators shall comply with the following disciplinary principles. 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.

      
      

      1. 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.

   
   

   * * *

   
   

   5. Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

   
   

   * * *

   
   

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

   
   

   1. Shall maintain honesty in all professional dealings.

   
   

2. Petitioner also has charged Respondent with violating various School Board policies.

3. Specifically, Petitioner has charged Respondent with violating Policy 0.01, Commitment to the Student, Principle I, which states in pertinent part: 2. In fulfilling his obligations to the student, the educator-. . . 3. [s]hall make reasonable effort to protect the student from conditions harmful to learning or to health and safety; 4. [s]hall conduct professional business in such a way that he does not expose the student to unnecessary embarrassment or disparagement.

4. Petitioner also has charged Respondent with violating Policy 1.013, Responsibilities of School District Personnel and Staff, which states:

   The district administrative staff shall be responsible for the efficient planning and administration of all supporting educational services such as maintenance, transportation, school lunch, personnel, purchasing, federal programs, payroll and other responsibilities as directed by the superintendent. The district administrative staff is also responsible for insuring that the appropriate

   
   

   district policies, state board of education rules, state laws, and federal laws and rules are adhered to.

   
   

   1. It shall be the responsibility of the personnel employed by the district school board to carry out their assigned duties in accordance with federal laws, rules, state statutes, state board of education rules, school board policy, superintendent's administrative directives and local school and area rules.

      
      

   2. District administrative staff.

      
      

   3. District instructional staff.

      
      

      1. The district level instructional staff shall be responsible for the cooperative development, supervision, and improvement of the district instructional program. The areas include in-service education, program evaluation, development of curriculum materials, educational specifications for school facilities, development of federal programs, accreditations, state program requirements and other responsibilities as directed by the superintendent.

         
         

      2. Pursuant to § 231.09, Fla. Stat., the primary duty of instructional personnel is to work diligently and faithfully to help students meet or exceed annual learning goals, to meet state and local achievement requirements, and to master the skills required to graduate from high school prepared for postsecondary education and work. This duty applies to instructional personnel whether they teach or function in a support role.

      
      

   4. Teachers.

      
      

      It shall be the duty of the teacher to provide instruction, leadership, classroom management and guidance to pupils through democratic experiences that promote growth

      
      

      and development both as individuals and as members of society. Pursuant to § 231.09, F.S., teachers shall perform duties prescribed by school board policies relating, but not limited, to helping students master challenging standards and meet all state and local requirements for achievement; teaching efficiently and faithfully; using prescribed materials and methods, including technology- based instruction; recordkeeping; and fulfilling the terms of any contract, unless released from the contract by the school board.

      
      

5. Petitioner also has charged Respondent with violating the following provisions of Policy 3.02, Code of Ethics:

   1. Accountability and Compliance Each employee agrees and pledges:

      1. To provide the best example possible; striving to demonstrate excellence, integrity and responsibility in the workplace.

         
         

         * * *

         
         

         d. To treat all students and individuals with respect and to strive to be fair in all matters.

         
         

         * * *

         
         

         f. To take responsibility and be accountable for his or her acts or omissions.

         
         

   2. Ethical Standards

   
   

   a. Abuse of Students – We are committed to ensuring that employee-student relationships are positive, professional, and non- exploitive. We will not tolerate improper employee-student relationships. Each employee should always maintain a professional relationship with students, both

   
   

   in and outside of the classroom. Unethical conduct includes but is not limited to:

   
   

   * * *

   
   

   ii. Exposing a student to unnecessary embarrassment or disparagement.

   
   

   * * *

   
   

   viii. Engaging in misconduct which affects the health, safety, and welfare of a student(s).

   
   

   * * *

   
   

   c. Misrepresentation or Falsification – We are committed to candor in our work relationships, providing other Board employees including supervisors, senior staff and Board members with accurate, reliable and timely information. Employees should exemplify honesty and integrity in the performance of their official duties for the School District. Unethical conduct includes but is not limited to:

   
   

   i. Falsifying, misrepresenting, or omitting information submitted in the course of an official inquiry/investigation[.]

   
   

   Professional Conduct – We are committed to ensuring that our power and authority are used in an appropriate, positive manner that enhances the public interest and trust.

   Employees should demonstrate conduct that follows generally recognized professional standards. Unethical conduct is any conduct that impairs the ability to function professionally in his or her employment position or conduct that is detrimental to the health, welfare or discipline of students or the workplace. Unethical conduct includes, but is not limited to, the following:

   
   

   1. Failing to maintain any necessary certification or licensure required in the performance of job duties for the School District.

      
      

   2. Shall not knowingly and willfully make false statements about a colleague.

      
      

   3. Failing to report the alleged misconduct of a fellow employee, to cooperate fully during any investigation or to complete an investigation relative to allegations of misconduct of a fellow employee, which affects the health, safety or welfare of a student.

      
      

   4. Entering into a confidentiality agreement regarding terminated or dismissed instructional employees and school administrators, or personnel or administrators who are dismissed or resign in lieu of termination, based in whole or in part on misconduct that affects the health, safety or welfare of a student.

      
      

   5. Providing employment references or discussing the instructional personnel’s or school administrator’s performance with prospective employers in another educational setting, without disclosing the personnel’s or administrator’s misconduct.

   
   

6. Petitioner also has charged Respondent with violating Policy 3.27, Suspension and Dismissal of Employees,8/ which

provides:

1. The purpose of this section is to promulgate rules regarding the suspension and dismissal of employees. These rules shall be read in conjunction with the procedures established for administrative hearings as set forth in Chapter 4, except, however, in the event it is determined that a conflict exists between these rules and those of Chapter 4, these rules will be controlling.

   
   

2. Upon a finding of probable cause by the Superintendent sufficient to warrant a recommendation to the School Board for suspension without pay and dismissal, the Superintendent shall communicate in writing to the employee:

   
   

   1. A concise statement of the Superintendent's recommendation(s) to the School Board affecting the employee's employment status.

      
      

   2. A statement of the date, time, and place where the School Board shall meet to consider the Superintendent's actions and recommendation(s).

      
      

   3. A statement of the legal authority for the Superintendent's actions and recommendation(s).

      
      

   4. A short and plain statement of the charges made by the Superintendent against the employee.

      
      

   5. A statement of the time limit for requesting a hearing before the School Board.

      
      

3. All employees recommended for suspension without pay and dismissal shall have the right to request a hearing provided such a request is made in writing to the School Board within 15 days of the receipt of the Superintendent's written notice.

   
   

4. Any person who receives written notice from the Superintendent of a recommendation(s) for suspension without pay and dismissal and who fails to request a hearing within 15 days, shall have waived the right to request a hearing on such matters, and the allegations and charges as contained in the notice shall be deemed by the School Board to be true for the purpose of entering a final order on the Superintendent's recommendation(s).

   
   

5. In the event a request for a hearing is timely made and received by the Office of General Counsel, by either an instructional employee with a continuing contract or by a noninstructional employee during the term of an annual contract, the procedure for conducting a hearing, unless otherwise determined by the School Board, is as follows:

   
   

   1. The Superintendent will file a petition for dismissal with the Division of Administrative Hearings (DOAH). This petition shall contain:

      
      

      1. The name and address of the School Board and the file or identification number, if known;

         
         

      2. The name and address of the employee, and an explanation of how the employee's substantial interest will be affected by the agency determination;

         
         

      3. A statement of when and how the employee received notice of agency decision or intent to render a decision;

         
         

      4. A statement of all disputed issues of material fact. If there are none, the petition must so indicate;

         
         

      5. A concise statement of the ultimate facts alleged, as well as the rules and statutes which entitle the Superintendent to relief;

         
         

      6. A demand for relief to which the Superintendent deems himself entitled; and

         
         

      7. Other information which the Superintendent contends is material.

         
         

   2. The DOAH will assign a Hearing Officer to conduct the hearing. The employee and the employee's representative will be informed of the time and place for the hearing by the DOAH. Whenever possible, the hearing shall

      
      

      be held in the place most convenient to all parties as determined by the Hearing Officer.

      
      

   3. The hearing shall be conducted in accordance with Chapter 120, Florida Statutes.

      
      

   4. Within thirty (30) days after the hearing or receipt of the hearing transcript, whichever is later, the Hearing Officer shall file a recommended order to the School Board including a caption, time and place of hearing, statement of the issues, findings of fact and conclusions of law, and recommendations for final agency action.

      
      

   5. The School Board, within ninety (90) days of receipt of the Hearing Officer's recommended order, shall issue the final order. This shall be considered at a regularly scheduled School Board meeting. The School Board may adopt the Hearing Officer's recommended order as its Final Order. The School Board in its final order may reject or modify the conclusions of law in the recommended order but may not reject or modify the findings of fact unless the School Board first determines from a review of the complete record that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The School Board may reduce or increase the recommended penalty in a recommended order, but may do so only with a review of the complete record.

      
      

      1. The hearing must be conducted by the School Board within forty-five (45) days of the request for hearing.

         
         

      2. The hearing shall be conducted in accordance with Section 120.57, Florida Statutes.

         
         

      3. Following the close of a hearing before the School Board, the parties may submit proposed findings of fact, conclusions of law and recommended order, or legal briefs on the issues within a time designated by the School Board.

         
         

      4. If an employee does not specifically designate a hearing preference, the School Board shall follow procedures as listed in Section (5).

      
      

6. If a request for a hearing is timely made and received by the Office of General Counsel by an instructional employee during the term of an annual contract or by an instructional employee with a professional service contract, either employee may elect to have a hearing before the DOAH or request that a hearing be held before the School Board. If the employee elects a hearing before the School Board, the following procedures shall apply:

   
   

7. A majority vote of the membership of the School Board shall be required to sustain the Superintendent's recommendation. A final order shall be entered within ninety (90) days after the last date of the hearing or receipt of the hearing transcript, whichever is later.

   
   

8. The determination of the School Board shall be final as to the sufficiency or insufficiency of the grounds for termination of employment.

1. Petitioner also cites, as a basis for its proposed discipline of Respondent, article II, section M, of the CBA, Progressive Discipline, which states:

   1. Without the consent of the employee and the Association, 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.

      
      

   2. All disciplinary action shall be governed by applicable statutes and provisions of this Agreement. Further, an employee shall be provided with a written notice of wrongdoing, setting forth the specific charges against that employee prior to taking any action.

      
      

   3. Any information, which may be relied upon to take action against an employee, will be shared promptly with said employee and his/her Association representative as soon as possible. Copies of any written information/correspondence that is related to the action of the employee or the investigating administrator(s) will be provided promptly to the employee and his/her Association representative.

      
      

   4. An employee against whom action is to be taken under this Section and his/her Association representative shall have the right to review and refute any and all of the information relied upon to support any proposed disciplinary action prior to taking such action. To this end, the employee and his/her Association representative shall be afforded a reasonable amount of time to prepare and present responses/refutations concerning the pending disciplinary action and concerning the appropriateness of the proposed disciplinary action. This amount of time is to be mutually agreed upon by the Parties.

      
      

   5. Only previous disciplinary actions which are a part of the employee's personnel file or which are a matter of record as provided in paragraph #7 below may be cited.

      
      

   6. Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Section, an employee may be reprimanded verbally with written notation, reprimanded in writing, suspended

      
      

      without pay or dismissed upon the recommendation of the immediate supervisor to the Superintendent. Other disciplinary action(s) may be taken with the mutual agreement of the Parties.

      
      

   7. Except in cases which clearly constitute a real and immediate danger to the District, a District employee, and/or a child/children or the actions/inactions of the employee clearly constitute flagrant or purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered as follows:

      
      

      1. Verbal Reprimand with a Written

         Notation - Such written notation shall not be placed in the employee's personnel file maintained at the District headquarters, but will be placed in a file at the school/department and shall not be used to the further detriment of the employee after twelve (12) months of the action/inaction of the employee which led to the notation. The written notification shall be maintained at the school site/department pursuant to the District’s Records Retention Schedule.

         
         

      2. Written Reprimand - A written reprimand may be issued to an employee when appropriate in keeping with provisions of this Section. Such written reprimand shall be dated and signed by the giver and the receiver of the reprimand and shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement.

         
         

      3. Suspension Without Pay - A suspension without pay may be issued to an employee, when appropriate, in keeping with provisions of this Section, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Section. The notice and specifics of the suspension without pay shall be placed in writing, dated

         
         

         and signed by the giver and the receiver of the suspension. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement.

         
         

      4. Dismissal - An employee may be dismissed (employment contract terminated) when appropriate in keeping with provisions of this Section, including just cause and applicable laws.

      
      

   8. An employee against whom disciplinary action(s) has been taken may appeal through the grievance procedure. If the disciplinary action(s) taken includes either a suspension or a dismissal, the grievance shall be initiated at STEP TWO.

      
      

2. Based on the foregoing findings of fact, it is determined, as a matter of ultimate fact, that by dragging K.B. by her wrist and ankle back into the classroom, Respondent violated rules 6A-5.056(2)(b), 6A-10.081(2)(a)1., and School Board Policy 0.01, section 3. Specifically, Respondent's actions did not constitute a reasonable effort on his part to protect

   K.B. from conditions potentially harmful to her health or safety.

   
   

   There was at least a possibility that K.B. could have been injured by being dragged across the floor by her wrist and ankle, and Respondent should have foreseen and understood that possibility.

3. Additionally, it is determined that Respondent violated School Board Policy 3.02, section 4.d. By dragging K.B. across

   
   

   the floor by her ankle and wrist, Respondent did not treat K.B. with respect, as is required by that policy. Although Respondent detained K.B. in order to prevent her from getting into trouble and potentially transferred out of Watkins to an alternative school, he could have avoided having physical contact with K.B. by following the established protocol to use the classroom buzzer to summon school administration.

4. As discussed above, Petitioner has taken one prior pertinent disciplinary action against Respondent, in the form of a written reprimand.

5. As discussed above, section M of the CBA establishes Petitioner's progressive discipline policy. Section 7.d. of this policy states that except in cases which clearly constitute a real and immediate danger to the District, a District employee, or a child, or the actions or inactions of the employee clearly constitute flagrant or purposeful violations of reasonable school rules and regulations, progressive discipline is administered in a sequential manner, starting with a verbal reprimand with written notation; progressing to a written reprimand; then progressing to suspension without pay; and concluding with dismissal.

6. Here, the clear and convincing evidence supports following the sequential penalty imposition established in section 7. of the progressive discipline policy.

   
   

7. Specifically, the clear and convincing evidence supports suspending Respondent without pay, for the duration of his suspension, starting on the day on which he was suspended up to the date of entry of the final order in this proceeding.

8. This penalty takes into account the serious nature of Respondent's conduct in dragging K.B. across the floor, but does not result in termination of a teacher who, by all accounts, is a very good teacher who cares deeply about his students, including K.B., and who puts forth extra effort to mentor to students in need of such support.9/

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to, and subject matter of, this proceeding.

10. This is a disciplinary proceeding in which Petitioner seeks to suspend Respondent from his teaching position, without pay, for 15 days, and to terminate his employment as a teacher.

11. Respondent is an "instructional employee" as defined in section 1012.01(2). Pursuant to sections 1012.22(1)(f), 1012.27(1)(f), and 1012.33(1)(a) and (6)(a), Petitioner has the authority to suspend and terminate him.

12. To do so, Petitioner must prove that Respondent committed the act alleged, that the act violates the statutes,10/ rules, and policies cited in the Administrative Complaint, and

    
    

    that the violation of these rules and policies constitutes just cause for dismissal.11/ See § 1012.33(1)(a), (6), Fla. Stat.

13. 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).

14. 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.

15. 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.

    
    

16. 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).

    
    

17. Section 1012.22(1)(f) authorizes Petitioner to take disciplinary action against instructional personnel. That statute states: "[t]he district school board shall suspend, dismiss, or return to annual contract members of the instructional staff and other school employees; however, no administrative assistant, supervisor, principal, teacher, or other member of the instructional staff may be discharged, removed, or returned to annual contract except as provided in this chapter."

18. Section 1012.27(5) authorizes the district school superintendent to:

    
    

    Suspend members of the instructional staff and other school employees during emergencies for a period extending to and including the day of the next regular or special meeting of the district school board and notify the district school board immediately of such suspension. When authorized to do so, serve notice on the suspended member of the instructional staff of charges made against him or her and of the date of hearing.

    Recommend employees for dismissal under the terms prescribed herein.

    
    

19. Section 1012.33(1)(a) also authorizes the suspension and termination of instructional personnel for "just cause." The statute, in pertinent part, defines "just cause" as follows:

    Just cause includes, but is not limited to, the following instances, as defined by rule of the State Board of Education: immorality, misconduct in office, incompetency, two consecutive annual performance evaluation ratings of unsatisfactory under s. 1012.34, two annual performance evaluation ratings of unsatisfactory within a 3-year period under

    s. 1012.34, three consecutive annual performance evaluation ratings of needs improvement or a combination of needs improvement and unsatisfactory under s. 1012.34, gross insubordination, willful neglect of duty, or being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude.

    
    

20. Based on the foregoing findings of fact, just cause exists to suspend Respondent from his teaching position, without pay, pursuant to the sequential discipline established in section M of the CBA.

    
    

21. The undersigned recommends suspension of Respondent without pay for the duration of his suspension, commencing on the date on which he was suspended from his employment, and ending on the date on which a final order is entered in this proceeding.

RECOMMENDATION

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 finding just cause and suspending Respondent from his teaching position, without pay, commencing on the date on which he was suspended from his employment, and ending on the date on which a final order is entered in this proceeding.

DONE AND ENTERED this 13th day of November, 2018, 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 November, 2018.

ENDNOTES

1/ All references to sections 120.569 and 120.57 are to the 2018 version of Florida Statutes. Because Respondent's conduct alleged to violate chapter 1012, Florida Statutes, occurred in January 2017, the 2016 version of that statute, which was in effect at the time that the alleged violations occurred, applies to this proceeding. Similarly, the versions of the State Board of Education rules and School Board policies in effect at the time of the alleged violations apply to this proceeding.

2/ There is conflicting and imprecise testimony regarding whether physical interaction between Respondent and K.B. occurred——and the nature and extent of any such physical interaction——while K.B. was leaving Respondent's classroom, but still inside the classroom. Specifically, Respondent testified that K.B. shoved him as she was in the process of leaving, but before she exited the classroom. K.B. testified that Respondent pushed her up against the whiteboard as she was in the process of leaving but before she exited the classroom. Student J.V., the sole third-party eyewitness who was present in Respondent's classroom during the events giving rise to this proceeding, testified that Respondent did not touch K.B. while she was leaving, but was still inside the classroom. Respondent's classroom did not contain a monitoring camera, so no video evidence was presented regarding any physical interaction that may have occurred between Respondent and K.B. as she was leaving but was still inside the classroom. Thus, there is no physical evidence of any physical interaction between Respondent and K.B. that may have occurred inside the classroom. Therefore, the evidence does not clearly and convincingly establish that Respondent pushed K.B. into the whiteboard, as alleged in the Administrative Complaint.

3/ This evidence consisted of K.B.'s testimony, Respondent's testimony, and a video recorded by the Watkins school video recording system on January 19, 2017, of the interaction between Respondent and K.B. in the hallway outside of Respondent's classroom. Respondent objected to the admissibility of the video on several grounds——specifically, that the video was not authenticated; that it was edited so did not accurately depict the entire sequence of events; that the chain of custody of the video had not been established such that it could be determined to fairly and accurately represent the incident; and that the video was cumulative and unduly prejudicial. None of these objections was sustained. First, K.B.——who was depicted in the video——identified herself and Respondent in the video. Her

identification constituted prima facie evidence that the video is authentic. Coday v. State, 946 So. 2d 988, 1000 (Fla. 2006);

Wagner v. State, 707 So. 2d 827, 830 (Fla. 1st DCA 1998). Thereafter, the burden shifted to Respondent to present evidence sufficient to show that the video is not authentic; Respondent failed to meet that burden. Second, there was no evidence presented to show that the video had been "edited" or tampered with such that it did not fully, accurately, and completely depict the pertinent interaction between Respondent and K.B. that took place in the hallway. As previously noted, there was no camera inside Respondent's classroom, so any interaction between Respondent and K.B. that occurred inside the classroom was not captured on video. However, that does not render the video of the interaction between Respondent and K.B. that took place in the hallway an incomplete or inaccurate depiction of that specific interaction. To that point, Petitioner presented credible and persuasive evidence establishing the depiction in the video of the interaction between Respondent and K.B. in the hallway had not been edited to delete, add to, or modify any aspect of that interaction. Additionally, Petitioner established the chain of custody of the video through the testimony of the school personnel, members of Petitioner's police department, and attorneys within Petitioner's general counsel's office who, at some point, had possession of the video; no evidence was presented to show that the chain of custody was at any point broken, or that anyone within the chain of custody had edited or altered the video such that it did not fairly and accurately depict the interaction between Respondent and K.B. that occurred in the school hallway on January 17, 2017. Wagner, 707 So. 2d at 831 (trial court did not abuse its discretion in admitting video into evidence in the absence of any evidence of editing or tampering). Further, the video is not cumulative to the testimony regarding the interaction between K.B. and Respondent that occurred in the hallway such that it should be excluded from evidence in this proceeding.

Although the video does depict events that also are described in the testimony of K.B., Respondent, and Angela Hammond, it supplements, but does not unnecessarily duplicate, the testimony of these witnesses by providing a clear, sequential, complete visual depiction of the events as they occurred in the hallway. See Delgardo v. Allstate Ins. Co., 731 So. 2d 11, 16 (Fla. 4th DCA 1999)(evidence is cumulative when it unnecessarily duplicates other evidence). Finally, the danger of unfair prejudice to Respondent in admitting the video evidence does not substantially outweigh the probative value of the probative value of that evidence. "Unfair prejudice"——which is more pertinent in a setting in which a jury sits as the trier of

fact——has been described as an "undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Grimes v. State, 248 So. 3d 150, 151 (Fla.

4th DCA 2018). In performing the balancing test to determine if the unfair prejudice outweighs the probative value of the evidence, the trial court should consider, among other things, the need for the evidence. Id. Here, the undersigned not only has not been inflamed by the video evidence, but finds the video helpful in clarifying and supplementing the testimonial evidence of the witnesses. See id. at 152 (trial court's decision regarding balancing probative value with potential for undue prejudice is subject to the abuse of discretion standard).

Accordingly, the video was admitted into evidence and has been given due weight in this proceeding.

4/ This evidence consists of the testimony of Respondent, K.B., and the video. See note 3, supra.

5/ This evidence consisted of the testimony of Respondent, K.B., and Angela Hammond, and the video. See note 3, supra.

6/ Evidence was admitted regarding two verbal reprimands with written notice, one dated March 31, 2011, and the other dated August 24, 2012. Neither of these is relevant to the issue of whether Respondent engaged in gross insubordination because, as noted above and more fully discussed below, the Administrative Complaint does not charge Respondent with gross insubordination. Further, neither of these disciplinary actions can be considered in imposing progressive discipline in this case because, pursuant to the CBA, section M. 7.a., a verbal reprimand is not placed in the employee's personnel file and "shall not be used to the further detriment of the employee after twelve (12) months of the action/inaction of the employee which led to the notation." Additionally, the undersigned excluded from evidence a verbal reprimand with written notation issued on December 12, 2016, because the version tendered for admission was not the most recent version of that verbal reprimand with written notation, and was being offered solely for the point that Respondent had been placed on notice regarding physical contact with students; however, the notice issue is germane only to whether Respondent committed, which is not at issue in this proceeding.

7/ Because the Administrative Complaint did not charge Respondent with having engaged in gross insubordination, these disciplinary actions are relevant only to the imposition of progressive discipline in this proceeding, and not to whether

Respondent intentionally refused to obey a direct order. Additionally, pursuant to sections 5. and 7.d. of the CBA, the written reprimand dated May 23, 2013, is pertinent to the imposition of progressive discipline because it is part of Respondent's personnel file.

8/ Policy 3.27 does not establish a standard of conduct; rather, it establishes the procedure for Petitioner's imposition of discipline on District employees. Therefore, Policy 3.27 is not a standard that may be "violated" for purposes of determining just cause to impose discipline.

9/ For example, the circumstances in this case are materially distinguishable from those in Palm Beach County School Board v. Bobbie Alexander, Case No. 16-3913 (Fla. DOAH Dec. 16, 2016), in which it was determined that striking a child in anger constituted a sufficient basis to deviate from the sequential imposition of discipline pursuant to the CBA and to terminate the employee. Here, Respondent did not detain K.B. in anger; rather, the clear and convincing evidence establishes that he did so in order to prevent her from taking action that potentially would have resulted in being removed from Watkins and transferred to another school. He acknowledged that he did not exercise the best judgment in detaining K.B., but this does not rise to level of warranting deviation from the sequential imposition of discipline established in section M of the CBA.

10/ The Administrative Complaint charges Respondent with a violation of section 1008.24(1)(c), (1)(f), and (1)(g), Florida Statutes, regarding test administration and security. However, the specific conduct on the part of Respondent alleged in the Administrative Complaint and on which evidence of violation was offered at the final hearing did not include conduct that would violate these statutory provisions. Additionally, Petitioner does not assert, in its Amended Proposed Recommended Order, that these statutory provisions were violated. Accordingly, these statutes have not been considered or addressed in this Recommended Order.

11/ The Administrative Complaint does not charge Respondent with having violated either rule 6A-5.056(4), regarding gross insubordination, or Policy 3.10(6), regarding Conditions of Employment with the District, which has been cited in the Joint Pre-hearing Stipulation as a basis for disciplining Respondent for engaging in gross insubordination. It is noted that Policy 3.10(6) cross-references Policy 1.013. Petitioner did charge Respondent with violating Policy 1.013(1), which charges

District personnel with carrying out their assigned duties in accordance with federal laws, rules, state statutes, state board of education rules, school board policies, superintendent's administrative directives, and local school and area rules.

However, because Petitioner did not specifically charge Respondent in the Administrative Complaint with violating any rule or policy standards regarding gross insubordination, Respondent cannot be disciplined on this basis. Willner v.

Dep't of Prof'l Reg., 563 So. 2d 805, 806 (absolving respondent of guilt and fines for violations of statutes not charged in the administrative complaint); see Arpayoglou v. Dep't of Prof'l Reg., 603 So. 2d 8, 9 (Fla. 1st DCA 1992)(respondent could not be subjected to discipline on the basis of violation of a statute that was not specifically charged in the administrative complaint).

COPIES FURNISHED:

Nicholas Anthony Caggia, Esquire

Law Office of Thomas L. Johnson, P.A.

510 Vonderburg Drive, Suite 309 Brandon, Florida 33511 (eServed)

Jean Marie Middleton, Esquire

School District of Palm Beach County Office of the General Counsel

3300 Forest Hill Boulevard, Suite C331 West Palm Beach, Florida 33460 (eServed)

Zedrick D. Barber, II, Esquire The Barber Firm LLC

4440 PGA Boulevard, Suite 600 Palm Beach Gardens, Florida 33410 (eServed)

Donald E. Fennoy II, Superintendent Fulton-Holland Educational Services Center 3300 Forest Hill Boulevard

West Palm Beach, Florida 33406

Matthew Mears, General Cousnel 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: 17-006849TTS

Orders for Case No: 17-006849TTS