The Issue Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges, as amended. If so, what action should be taken against Respondent.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control, and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida. Among these schools are Miami Central Senior High School (Central) and American Senior High School (American). Alberto Rodriguez is now, and has been for the past six years, the principal at American. As American's principal, Mr. Rodriguez has supervisory authority over the School Board employees assigned to work at the school. These employees are expected to conduct themselves in accordance with School Board Rules, including School Board Rules 6Gx13-4A-1.21, 6Gx13-5D-1.07, and 6Gx13-6A-1.331 At all times material to the instant case, School Board Rule 6Gx13-4A-1.21 provided, in pertinent part, as follows: Permanent Personnel RESPONSIBILITIES AND DUTIES Employee Conduct All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited. . . . At all times material to the instant case, School Board Rule 6Gx13-5D-1.07 provided as follows: CORPORAL PUNISHMENT- PROHIBITED The administration of corporal punishment in Miami-Dade County Public Schools is strictly prohibited. Miami-Dade County Public Schools has implemented comprehensive programs for the alternative control of discipline. These programs include, but are not limited to, counseling, timeout rooms, in-school suspension centers, student, mediation and conflict resolution, parental involvement, alternative education programs, and other forms of positive reinforcement. In addition, suspensions and/or expulsions are available as administrative disciplinary actions depending of the severity of the misconduct. Procedures are in place for students to make up any work missed while on suspension, or to participate in an alternative program if recommended for expulsion.[2] Respondent has been employed as a teacher by the School Board since 1994. He has a professional service contract of employment with School Board. From 1994 through 2000, Respondent was assigned to Central, where he taught emotionally disturbed and severely emotionally disturbed students. He had an unblemished disciplinary and performance record at Central. Respondent was reassigned from Central to American, where he remained until August of 2001, when he was "placed in an alternative work assignment at Region I" pending the disposition of charges against him. At American, Respondent taught emotionally handicapped (EH) students. Among the students in his classes were O. A., V. S., C. H., T. S., R. D., and A. D. At all times material to the instant case, Nanci Clayton also taught EH students at American.3 She had some of the same students in her classes that Respondent had in his. At the beginning of the 2000-2001 school year, Ms. Clayton and Respondent had paraprofessionals in their classrooms. The paraprofessionals, however, were removed from their classrooms after the first grading period. Ms. Clayton's and Respondent's classrooms were located in one "very large [room] divided in half [by a makeshift partial partition4] to make two classrooms."5 This partial partition consisted of bookcases, a blackboard, filing cabinets, and, at times, a table. To enter and exit Respondent's classroom, it was necessary to pass through Ms. Clayton's classroom, where the door to the hallway was located. There was no direct access to the hallway from Respondent's classroom. Ms. Clayton's desk was located immediately to the left of the door as one walked into her classroom from the hallway. Students leaving Respondent's classroom had to pass by Ms. Clayton's desk to get to the hallway. The "divided room" that Ms. Clayton and Respondent shared had a "phone line," but no School Board-supplied telephone. Ms. Clayton and Respondent had to supply their own telephone. "Sometimes [the telephone] would work, sometimes it wouldn't work." There was no "emergency" or "call" button in the room. There were occasions when Ms. Clayton and Respondent "conduct[ed] [their] lessons simultaneously in this divided room."6 Things said in one of the classrooms could, at times, be heard in the other classroom. It is not uncommon for EH students to have mood swings, to become easily frustrated and angered, to be verbally and physically aggressive, to engage in off-task behavior, and to defy authority. Controlling the behavior of these students in the classroom presents a special challenge. As EH teachers at American, Ms. Clayton and Respondent were faced with this challenge. It was their responsibility to deal with the behavioral problems exhibited by their students during the course of the school day while the students were under their supervision. American had a Behavior Management Teacher, David Kucharsky, to assist the school's EH teachers in dealing with serious or chronic behavioral problems. There were far fewer instances of disruptive student behavior in Ms. Clayton's classroom than in Respondent's. While in Respondent's class, some students would do such things as throw books and turn the lights off. Ms. Clayton, however, would not "have the same kind of problems" with these students when she was teaching them. Ms. Clayton "made recommendations" to Respondent to help him better control the behavior of students in his classes. As a teacher at American, Respondent was a member of a collective bargaining unit represented by the United Teachers of Dade (UTD) and covered by a collective bargaining agreement between the School Board and UTD, effective July 1, 1999, through June 20, 2002 (UTD Contract). Article V of the UTD Contract addressed the subject of "employer rights." Section 1 of Article V provided, in part, that the School Board had the exclusive right to suspend, dismiss or terminate employees "for just cause." Article XXI of the UTD Contract addressed the subject of "employee rights and due process." Section 2 of Article XXI provided, in part, that "[d]ismissals and suspensions shall be effected in accordance with applicable Florida statutes, including the Administrative Procedures Act (APA) " Article VIII of the UTD Contract addressed the subject of a "safe learning environment." "Student discipline" was discussed in Section 1 of Article VIII, which provided, in part, as follows: Section 1. Student Discipline A safe and orderly learning environment is a major priority of the parties. Such an environment requires that disruptive behavior be dealt with safely, fairly, consistently, and in a manner which incorporates progressive disciplinary measures specified in the Code of Student Conduct. Rules governing discipline are set forth in the Code of Student Conduct, School Board Rules, and Procedures for Promoting and Maintaining a Safe Learning Environment and, by reference, are made a part of this Contract. * * * D. The parties recognize the potential for difficult circumstances and problems related to the use of corporal punishment. Accordingly, the parties agree that such punishment shall be prohibited as a disciplinary option, and further agree to act affirmatively in continuing to identify and implement more effective alternatives for dealing with student behavior. The involvement of school-site personnel in developing such alternatives is critical to their potential for success. The teacher shall have the authority to remove a seriously disruptive student from the classroom. In such cases, the principal or designee shall be notified immediately and the teacher shall be entitled to receive prior to or upon the student's return to the classroom, a copy of the Student Case Management Form (SCAM) describing corrective action(s) taken. . . . "Physical restraint" and its use, in certain circumstances, on students receiving exceptional student education services was discussed in Section 3 of Article VIII, which provided as follows: Section 3. Physical Restraint There are instances where exceptional students exhibit behaviors that are disruptive to the learning environment and pose a threat to the safety of persons or property. Some exceptional students because of the nature of their disability, may, on occasion, experience impaired impulse control of such severity that the use of physical restraint is necessary to prevent such students from inflicting harm to self and/others, or from causing damage to property. The purpose of physical restraint is to prevent injury to persons or destruction of property. It is not to be used to "teach the child a lesson" or as punishment. For students who exhibit such behaviors, the use of physical restraint procedures shall be discussed as part of the Individualized Education Program (IEP) development and review process. A recommendation for the use of Board-approved physical restraint procedures must be made by the Multi-Disciplinary Team (M-Team) and shall be documented on the student's IEP form before the use of such procedures may be authorized. When parents or surrogates are not present at the IEP meeting, written notification to them regarding the use of physical restraint will be provided. Strategies for the prevention of aggressive behavior shall be utilized on an ongoing basis. However, when an explosive event occurs without warning and is of such degree that there is imminent risk to persons or property, the use of physical restraint technique is authorized for such circumstances. Subject to available funding, the Board shall provide for the training of instructional and support staff in physical restraint techniques, as well as strategies for prevention of aggressive behavior. Training manuals developed for this purpose are, by reference, incorporated and made a part of this Agreement. Physical restraint techniques provided in training programs approved by the Board are authorized and, when utilized in accordance with the training provided and these guidelines, shall not constitute grounds for disciplinary action. If a teacher is not trained in the use of approved physical restraint procedures and is faced with an emergency, the teacher is authorized to employ the moderate use of physical force or physical contact as may be necessary to maintain discipline or to enforce Board Rules 6Gx13-5D-1.07 and 1.08.[7] The appropriate use of these procedures shall not constitute a violation of the corporal punishment policy (Board Rule 6Gx13-5D-1.07). Physical restraint refers to the use of physical intervention techniques designed to restrict the movement of a student in an effort to de-escalate aggressive behavior. In order to promote a safe learning environment, the district has authorized the implementation of specific physical restraint procedures to be used in Exceptional Student Education programs when a student's IEP documents the potential need for their use. These procedures include, but are not limited to, holding and escape techniques which, when implemented, prevent injury to students and staff or prevent serious damage to property. Specific physical restraint procedures may also be approved for use with other specific student populations, upon mutual agreement of the parties and would be reviewed on an annual basis. The use of physical restraint must be documented as part of the SCM system. Instructional or support staff who utilize physical restraint techniques shall complete the SCM Student Services Form to record student case information regarding each incident. Directions shall be provided to instructional and support staff to assist them in completing the appropriate form. At all times material to the instant case, the Individualized Education Program for each of the students in Respondent's classes "document[ed] the potential need for the[] use" of the School Board-approved "physical restraint techniques" referenced in Section 3 of Article VIII of the UTD Contract. Respondent received training in 1994 in the use of these techniques. At another in-service training session that he attended when he was teaching at Central, the head of the school's program for emotionally disturbed and severely emotionally disturbed students spoke about the "preventative strategies" of "planned ignoring" and "proximity control" and gave to the attendees, including Respondent, a handout, which stated the following about these "preventative strategies": Planned Ignoring Inappropriate behavior is ignored and not reinforced by staff by not reacting or responding to specific disruptive activity of a student in anticipation that the inappropriate behavior will extinguish or subside without further [sic]. The second part of this intervention is to reinforce positively acceptable behavior in anticipation that this behavior will occur more frequently. Proximity Control This intervention takes advantage of the positive effect of using a nonverbal communication such as gestures, looks, or body postures to decrease inappropriate classroom behavior. As an additional measure, physical contact in the form of a hand on the student's shoulder or a squeeze of an arm, can be very supportive to the student, yet convey the message that certain behaviors will not be tolerated. Respondent employed these "preventative strategies" at Central and was never disciplined for doing so. At American, Respondent was involved in several incidents in which he used physical force against students. On February 28, 2001, Respondent was at his desk teaching a class when one of the students in the class, V. S., got out of his seat and started "knocking on the T.V." that was in the classroom. V. S. was a "very large student" who, on a previous occasion, had "threatened to take [Respondent's] head and push it through a plate-glass window" and, on other occasions, had told Respondent: We are going to get you white man. We are going to make you quit. We are going to get you fired.[8] Respondent told V. S. to take his seat. V. S. refused. Instead, he sat down on Respondent's desk and "leaned over toward [Respondent]," positioning his face "about a foot" from Respondent's. V. S. was "glaring down at [Respondent]" and had a "tight-lipped grin" on his face. This made Respondent feel "a little edgy." After directing V. S. to "get off [the] desk" and receiving "no response," Respondent (rather than getting up from his seat and walking away from V. S.) "reached out and gave [V. S.'s] arm a shake" in order "to get [V. S.'s] attention."9 Respondent obtained the result he desired. V. S. got off the desk; but he did not do so quietly. V. S. yelled profanities at Respondent and threatened to "kill" Respondent if Respondent ever touched him again. Prior to Respondent shaking his arm, V. S. had not made, during the incident, any verbal threats against Respondent. The incident was reported to the administration and the matter was investigated. Respondent, V. S., and another student, C. H., who witnessed the incident, gave written statements that Mr. Rodriguez reviewed. On March 15, 2001, after reviewing the statements, Mr. Rodriguez held a Conference-for-the-Record with Respondent. Mr. Rodriguez subsequently prepared (on March 21, 2001) and furnished to Respondent (on that same date) a memorandum, in which he summarized what had transpired at the conference. The memorandum read as follows: The following is a summary of the conference-for-the-record on Thursday, March 15, 2001, at 2:00 p.m. in this administrator's office. Present at the conference were Mark Soffian, assistant principal; Karen Robinson, assistant principal; Jimmy Jones, UTD Representative; yourself and this administrator. The purpose of the conference was to address the following: -Miami-Dade County School Board Police Case #F-09343. -Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida. -School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited). -School Board Rule 6Gx13-4A-1.21 (Employee Conduct). -Review of the record. -Future employment with Miami-Dade County Public Schools. This administrator began the conference by reviewing Case #F-09343. This administrator read your statement and the statements of the students alleging battery on a student. This administrator asked you if you had any comments in reference to the incident. You stated that you had to write up everyone in class, because students were turning off the lights and throwing books in the dark despite repeated warnings. You characterized this student behavior as "organized disruption." You further stated that another student was tormenting a classmate who shrieked out in pain, ran out of class and then was dragged back in by the same student. You described that another student was banging on the television and you had to write him up. You said you did not push [V. S.] (victim-I.D. #427561) but rather he leaped off the desk, shouted a tirade of curses at you and then left class. You indicated that you did not push because you were unable to move an 18 year old who is 260 pounds.[10] This administrator asked if you ever left your class unsupervised. You stated, "Yes, from time to time." This administrator cautioned you that one of your professional responsibilities is never to leave your students unsupervised. Additionally, the fact that you described the numerous classroom discipline problems, it is of the utmost importance that your students remain supervised at all times. This administrator reviewed with you the Code of Ethics and Principles of . . . Professional Conduct of the Education Profession in Florida. This administrator specified certain areas of the Code of Ethics in which you were in violation. This administrator asked you to respond and you nodded your head in the affirmative. This administrator reviewed with you Miami- Dade County School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited). You were asked if you understood and you responded "Yes." This administrator reviewed with you Miami- Dade County School Board Rule 6Gx13-4A-1.21 (Employee Conduct). This administrator reminded you that you are expected to conduct yourself, both in your employment and in the community, in a manner that will reflect credit upon yourself and the school system. You were asked to respond and you stated "I understand." This administrator conducted a review of the record. There was another incident involving the use of improper force and disciplinary means against a student that was cited on November 11, 2000. The case (F-03631) was never pursued; however, this administrator cautioned you that these past episodes demonstrate use of poor judgment on your part. This administrator informed you that repeated offenses would result in further disciplinary actions that will negatively impact your future employment with Miami- Dade County Public Schools. This administrator then asked if you had any further comments or statements for the record. You requested that a handout on "preventative strategies" and Florida Statute Chapter 232.27[11] be included as part of the written summary. You further stated that you didn't claim to be perfect and there was room for improvement. You stated that teaching six periods made it difficult to do the job effectively. This administrator asked if you wanted to give up the sixth period supplement since if was your choice to take on that added teaching responsibility for remuneration. You stated that you did not want to give up the money. This administrator advised that you cannot use the sixth period day as an excuse, and if it is a hardship where you are unable to perform your prescribed duties th[e]n you need to let this administrator know. Additionally, this administrator informed you that writing referrals to exclude seven or eight students in your Exceptional Education class was unacceptable. This administrator recommended for you to acquire additional training in dealing with Emotional Handicapped students. Seeking alternative means of discipline in lieu of suspension and exclusion from class will be necessary. This administrator provided you with Miami-Dade County School Board Manual of Procedures for Special Programs to assist you in managing your classroom and providing appropriate strategies in handling Exceptional Education students.[12] This administrator issued you the following directives: -Refrain from using any physical means to enforce student discipline. -Adhere to Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida. -Adhere to School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited). -Adhere to School Board Rule 6Gx13-4A-1.21 (Employee Conduct). -Refrain from leaving students in the classroom unsupervised. In closing, this administrator informed you that failure to comply with these directives and recurrences of this type will result in further disciplinary action which will adversely affect your future employment status. This administrator stated that he would be available to provide[] you any assistance that you may require. In conclusion, you are apprised of your right to append, clarify, or explain any information recorded in this conference by this summary. Attached to the memorandum were copies of the Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida (which are found in Rules 6B-1.001 and 6B- 1.006, Florida Administrative Code), School Board Rule 6Gx13-5D- 1.07, School Board Rule 6Gx13-4A-1.21, the handout on "preventative strategies" that Respondent had received at Central, and the cover page, as well as pages 119 and 121, of the Miami-Dade County School Board Manual of Procedures for Special Programs referenced in the memorandum. Page 121 of the Miami-Dade County School Board Manual of Procedures for Special Programs manual read as follows: Some exceptional students because of the nature of the disability, may on occasion experience impaired impulse control of such severity that the use of physical restraint is necessary to prevent such students from inflicting harm to self and/or others, or from causing damage to property. The purpose of physical restraint is to prevent injury to persons or destruction of property. It is not to be used to "teach the child a lesson" or as punishment. For students who exhibit such behaviors, the use of physical restraint procedures shall be discussed as part of the IEP development and review process. A recommendation for the use of Board-approved physical restraint procedures must be made by the Multidisciplinary Team (M-Team) and shall be documented on the student's IEP form before the use of such procedures may be authorized. When parents or surrogates are not present at the IEP meeting, written notification to them regarding the use of physical restraint will be provided. Strategies for the prevention of aggressive behavior shall be utilized on an ongoing basis. However, when an explosive event occurs without warning and is of such degree that there is imminent risk of persons or property, the use of physical restraint techniques is authorized for such circumstances. The School Board shall provide for the training of the appropriate instructional and support staff in physical restraint techniques, as well as strategies for the prevention of aggressive behavior. Training manuals developed for this purpose are available at school sites. Physical restraint techniques provided in training programs approved by the Board are authorized and, when utilized in accordance with the training provided, these guidelines shall not constitute grounds for disciplinary action. If a teacher is not trained in the use of approved physical restraint procedures and is faced with an emergency, the teacher is authorized to employ the moderate use of physical force or physical contact as may be necessary to maintain discipline or to enforce School Board Rules 6Gx13-5D-1.07 and 1.08. The appropriate use of these procedures[13] On May 2, 2001, Respondent again used non-approved "physical means to enforce student discipline," notwithstanding the reasonable directive that he had been given by Mr. Rodriguez at the March 15, 2001, Conference-for-the-Record that he "refrain" from engaging in such conduct. That day, students in Respondent's third period class, including T. S., R. D., and O. A., were scheduled to take the Scholastic Reading Inventory Test (SRI). The SRI is a standardized test designed to measure students' reading skills. The results of the test are "used to guide classroom instruction, so it is considered [to be a] low- stakes" test. Respondent had received in-service training, prior to May 2, 2001, on how to administer the SRI. It was emphasized during the training that, for the SRI "to be an effective test, [it had to] be protected from [pre-test administration] dissemination" and that it was important for teachers administering the test to make sure their students returned all test materials "at the end of the test period" and did not leave the test site with these materials. At the training, Respondent was given a document which contained standards for "test administration and test security." These standards provided, in part, as follows: STANDARD: PROFESSIONAL OBLIGATIONS IN THE IMPLEMENTATION OF THE TESTING PROGRAM AT THE SCHOOL LEVEL . . . . The test administrator is responsible for directing and conducting the testing session(s) as specified in the administration manual or program guide, strictly adhering to test directions, monitoring students during testing, and maintaining the security of test materials assigned to him/her. . . . STANDARD: TEST SECURITY PROCEDURES FOR THE DISTRIBUTION AND RETURN OF TEST MATERIALS Each principal or designee is responsible for the receipt, inventory, secure storage, distribution, collection, and return of all test booklets and test-related material assigned to that school, according to the directions and instructions specified in the administration manuals or program guides. The principal or designee must notify the Division of Student Assessment and Educational Testing immediately if any discrepancies are noted in the counts, or if any materials are missing. The principal or designee must advise all teachers of the rules relating to test security and of the importance of complete adherence to them. Adherence to these test security procedures for the distribution and return of test materials, before, during, and after testing will ensure that: students do not have access to any of the material prior to the actual exam time or following it; professional staff have access to the test booklets, test folders, questions, and/or reading passages only at the time necessary for administration purposes; test booklets and test materials are returned to the test chairperson at the end of each testing session; and nothing has occurred in the school to allow unauthorized access to any of the test materials at any time. . . . STANDARD: MAINTAINING STANDARDIZATION AND TEST SECURITY DURING TEST ADMINISTRATION . . . . Students must have access to test booklets, test folders (i.e., test questions) ONLY during the actual administration of the test. Test materials must be secured at all times. Materials must be handed directly to and collected from each student one at a time. If a student needs to leave the test room, his/her materials must be collected and held upon the student's return[;] the test administrator must ensure that the student receives only his/her own test materials. Test administrators and proctors must actively monitor students during the entire testing period by walking around the room, to ensure compliance with test directions and to prevent cheating. Any irregularities or problems with the test administration must be promptly reported to the test chairperson, the school-site administrator, and district staff. . . . Test administrators, proctors, and any other school or district staff involved in test administration are required to adhere to guidelines laid out in the Florida Test Security Statute, Section 228.301[14] and the FDOE State Board of Education Administration Rule 6A-10.042, Maintenance of Test Security,[15] as well as district policy and board rule regarding test security. Violations of test security provisions shall be subject to penalties as provided in statute and FDOE State Board of Education Administrative Rules. . . . After Respondent handed out the test materials to the students in his third period class on May 2, 2001, and provided them with instructions regarding the test, T. S., who was seated in the back row of the classroom, asked Respondent several questions about the test. Dissatisfied with Respondent's responses, T. S. got out of his seat and, with the test booklet and answer sheet in hand, headed towards Ms. Clayton's classroom to see if she could provide him with the information that he was seeking about the test. On a regular basis, T. S. would leave Respondent's classroom, without permission, before the end of the period and go into the hallway. Concerned that T. S. would go out into hallway with the test materials, Respondent followed T. S. T. S. was near the partial partition dividing Respondent's and Ms. Clayton's classrooms, facing Ms. Clayton, when Respondent caught up to T. S. T. S. started to ask Ms. Clayton a question, when he was interrupted by Respondent, who instructed T. S. to give him the test materials. Respondent had positioned himself so that he was in front of T. S. and "close enough to touch" him. T. S. did not hand over the test materials to Respondent; instead, he asked Respondent "to give him some space." Respondent, however, held his ground and again "asked for the test materials back." T. S. refused to return the test materials to Respondent, telling Respondent he was "just asking a question." Respondent then started to reach for the test materials in an effort to grab them out of T. S.'s hand. T. S. reacted by moving the hand in which he was holding the test materials away from Respondent so that Respondent would not be able to take the materials from him. During the scuffle, Respondent grabbed ahold of T. S.'s shirt and "pulled" it. He also bumped into T. S. as he was reaching for the test materials in T. S's hand. Upset that Respondent was "over [him], touching [him]," T. S. ripped up the test materials and threw the pieces at Respondent. He was going to hit Respondent, but was subdued by a classmate, R. D. He then walked out the door and into the hallway. Respondent returned to his classroom and went back to his desk. He was followed by R. D., who told Respondent that he "need[ed] to chill out." While talking to Respondent, R. D. put his hands on Respondent's desk. Respondent told R. D., "get your hands off my desk." Using his hand, Respondent then forcibly moved R. D.'s hands off the desk. What occurred during Respondent's third period class on May 2, 2001, was reported to the administration and the matter was investigated. Written statements from Respondent, Ms. Clayton, and T. S., as well as other students, were collected and reviewed as part of the investigation. Mr. Rodriguez scheduled a Conference-for-the-Record with Respondent for June 11, 2001. Before the conference was held, Respondent was involved in yet another incident in which he used physical force against a student in his class. The student on this occasion was A. D., and the incident occurred on June 7, 2001, at around 9:30 a.m. or 9:45 a. m., near the end of the first (two hour) class period of the school day. A. D. had engaged in disruptive behavior in Respondent's classroom before walking out of the classroom and into the hallway towards the end of the period. As A. D. was leaving, Respondent told him, "If you leave before the bell rings, I am not letting you back in this time." (This was not the first time that A. D. had walked out of Respondent's class before the period was over.) Deanna Lipschutz, a clerical employee assigned to American's exceptional student education department, saw A. D. in the hallway. A. D. was "walking around in circles," but he was not "out of control." Ms. Lipschutz approached A. D. and, after engaging in a brief conversation with him, escorted him back to Respondent's classroom. The door to the classroom was closed. Ms. Lipschutz knocked on the door. When Respondent opened the door, Ms. Lipschutz told him that A. D. "would like to come back in class." Respondent indicated that he would not let R. D. return. Respondent then took his hands, placed them on A. D.'s shoulders, and gave A. D. a "little push." A. D. stumbled backwards. There was a wall behind A. D. that A. D. nearly made contact with as he was stumbling backwards. After pushing A. D. away from the doorway, Respondent went back inside the classroom and closed the door. Respondent's use of physical force against A. D. on June 7, 2001, was reported to the administration and an investigation of the matter was commenced. This was the last of the incidents (specified in the School Board's Notice of Specific Charges, as amended) involving Respondent's use of physical force against a student. Respondent's use of physical force in each of these incidents (the February 28, 2001, incident with V. S.; the May 2, 2001, incidents with T. S. and R. D.; and the June 7, 2001, incident with A. D.) was contrary to School Board policy and unauthorized and, moreover, evinced poor judgment and a lack of adequate concern for the physical well-being of the EH student involved in the incident. In none of these incidents was the physical force Respondent used reasonably necessary to prevent physical harm to himself, the student involved in the incident, or anyone else, or to prevent the destruction or serious damage of property. Respondent did not use School Board-approved "physical restraint techniques" (which are referenced in Section 3 of Article VIII of the UTD Contract) in any of these incidents. Rather, he used physical methods that were more likely to provoke, than deter, aggressive student behavior and, in so doing, created conditions harmful to the exceptional education students in his charge. Furthermore, Respondent's use of these methods in the incidents involving T. S., R. D., and A. D. was in defiance of directives he had been given by Mr. Rodriguez during the March 15, 2001, Conference-for-the-Record. It is true that Respondent did not have an easy teaching assignment. He had students in his class who, because of their disability, made teaching quite difficult. As a certified EH teacher, however, Respondent should have been equipped to deal with these students' disruptive behavior without resorting to the use of unauthorized physical force. Respondent's repeated use of such force was so serious as to impair his effectiveness as an EH teacher. The Conference-for-the-Record with Respondent that Mr. Rodriguez had scheduled for June 11, 2001, was held as scheduled on that date. Mr. Rodriguez subsequently prepared (on June 13, 2001) and furnished to Respondent (on that same date) a memorandum in which he summarized what had transpired at the conference. The memorandum read as follows: The following is a summary of the conference-for-the-record on Monday, June 11, 2001, at 8:00 a.m. in this administrator's office. Present at the conference were: Karen Robinson, assistant principal; Mark Soffian, assistant principal; Jimmy Jones, UTD Representative; Sherri Greenberg, UTD Bargaining Agent Representative, yourself and this administrator. The purpose of the conference was to address the following: -Miami-Dade County School Board Police Case #F13868 (Substantiated) -Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida -School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited) -School Board Rule 6Gx13-4A-1.21 (Employee Conduct) -Review of the record -Future employment with Miami-Dade County Public Schools This administrator began the conference by reviewing written statements from several students, a teacher and yourself in the School Board Case #F13868. This administrator informed you that your actions were in violation of School Board Rule 6Gx13-5D-1.07 of using corporal punishment and inappropriate physical restraint as a means of disciplining your students. This administrator asked if you had a response to these statements. You stated that you had seven years of university training and a master's in SED and you had a perfect record of no incidents at Miami Central High School. You requested to read a letter from Clifford Golden, School Psychologist, that you wished to be included in the record's summary. Additionally, you stated that "I had no problems until I came to American and it has been a difficult situation. When I first got here, you told me at a staff meeting about an ongoing LED conspiracy." This administrator corrected you about the contents of my statement as saying that "there was never a mention of a conspiracy; however, I was concerned with the quality of instructional delivery in the Exceptional Education department." You continued stating that your colleagues were less than helpful, and that no one came to your class, and that Mr. Kucharsky, Behavior Management Teacher, did not show consistent discipline. This administrator informed you that when he visited you classroom during second period, he observed on several occasions that on one side of the room with another teacher there were students learning; however, on your side there was bedlam. Dr. Soffian indicated when he visited your class on three occasions, he observed your room to be in disarray, with books on the floor, desks overturned and students not engaged in any productive activity. Mr. Jones also indicated upon his visitation, he observed that your kids were "out of control." You responded that "I have frequent misbehavior from that class but no one provided any consequences when I wrote them up." This administrator then reviewed with you the State Board of Education Rule, Code of Ethics (6B-1.001, 6B-1.006). This administrator read to you that your obligation to the student requires that "you shall make reasonable effort to protect the student from conditions harmful to learning, to the student's mental and/or physical health and/or safety." This administrator reminded that this is the second time he is issuing you this material and as a professional teacher you are obligated to comply with this code. You responded by saying you disagreed with the statement of using corporal punishment and that due to the classroom not having ventilation and being an old chorus room exacerbates the problem. This administrator reviewed your record, citing a pattern of putting your hands on students. This administrator reviewed with you two other incidents of unnecessary physical contact of your students (Miami- Dade County Police Cases #F03631 & F09343). This administrator read to you Part III, page 121, from the handout of Special Programs and Procedures for Exceptional Students (6Gx13-6A-1.331): "Some exceptional students because of the nature of the disability, may on occasion experience impaired impulse control of such severity that the use of physical restrain[t] is necessary to prevent such students from inflicting harm to self and/or others, or from causing damage to property." This administrator stated that your actions were not justified because the student was not doing any of the above. You responded that you disagreed with the findings. You felt that the student leaving with the test booklet caused you to physically intervene and you interpreted this action as preventing property damage. You further commented that you were a seasoned professional and that you have never hurt a student in your entire professional career. In the other cases, you stated that you were the victim and sometimes it is necessary to intervene to protect their health and safety. This administrator referred you to the District's Support Agency Program. This administrator informed you that this supervisory referral is strictly voluntary and that you will be contacted by that office. You stated that you certainly would pursue this. This administrator reviewed with you your Annual Evaluation for the 2000-2001 school year. This administrator explained that Categories I-VI were acceptable; however, Category VII, Professional Responsibilities, was unacceptable.[16] This administrator issued you and explained the prescription and the unacceptable Annual Evaluation. This administrator also explained to you that this prescriptive status would freeze your salary, revoke your transfer request, and exclude you from summer employment. You asked if your salary would be retroactive and if you would be able to transfer after the prescription date. This administrator informed you that after you have met your prescription requirement then you would be free to transfer and your salary will be reinstated and retroactive to the beginning of the 2001-2002 school year. This administrator asked if anyone had any other questions. Ms. Sherrie Greenberg, UTD representative, suggested that you receive training in physical restraint the next time it is offered. This administrator agreed with that suggestion as soon as a class opens. Ms. Greenberg also suggested to you that the District's Emotionally Handicapped supervisor visit your classroom at the beginning of the school year and provide assistance as needed. This administrator agreed with this suggestion of any additional support to improve classroom management. This administrator reminded you that per your request, your six period schedule during this second period class was changed to a five-period day. This administrator issued you the following directives: -Refrain from using any physical means to enforce student discipline, particularly if the student(s)' or your safety [is] not endangered and/or damage of property is not imminent -Adhere to Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida -Adhere to School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited) -Adhere to School Board Rule 6Gx13-4A-1.21 (Employee Conduct) In closing, this administrator informed you that this is the second time a conference- for-the-record has been held with you concerning the same issues. Due to your failures to comply with the previous directives, this administrator deemed this behavior as insubordination. This administrator indicated that continued failure to comply with these directives and recurrences of this type would result in further disciplinary action which will adversely affect your future employment status. This administrator stated that he would be available to provide you any assistance that you may require. In conclusion, you are apprised of your right to append, clarify, or explain any information recorded in this conference by this summary. The "prescription" that Mr. Rodriguez issued for Respondent indicated that Respondent would be in "prescriptive status" from August 27, 2001, through November 1, 2001. Respondent, however, did not return to the classroom during the 2001-2002 school year. Shortly before the beginning of the 2001-2002 school year, Dr. Thomasina O'Donnell, a director in the School Board's Office of Professional Standards, conducted a Conference-for- the-Record with Respondent, at which she discussed Respondent's use of physical force against students at American, including the June 7, 2001, incident with A. D., and his future employment with the School Board. Dr. O'Donnell subsequently prepared (on August 27, 2001) and mailed to Respondent (on August 28, 2001) a memorandum in which she summarized what had transpired at the conference. In those portions of the memorandum addressing the "action taken" and the "action to be taken," Dr. O'Donnell wrote the following: Action Taken In consideration of this incident and conference data, you were placed in an alternate work assignment at Region I until disposition of the charges are determined . You were advised of the availability of services from the District's referral agency. You were also provided the option to resign your position with Miami-Dade County Public Schools which you declined at this time. Pending further review of this case and formal notification of the recommended action or disciplinary measures to be taken, these directives are reiterated upon your return to the worksite to prevent adverse impact to the operation of the work unit and to the services provided to students. Noncompliance with these directives will necessitate review by the Office of Professional Standards. Refrain from using physical means to effect discipline. Adhere to all School Board Rules and the Code of Ethics. Supervise assigned students at all times. During the conference, you were provided with a copy of School Board Rules 6Gx13-4A- 1.21, Responsibilities and Duties; 6Gx13-5D- 1.07 Corporal Punishment-Prohibited; and Chapter 6B-1.0[0]1(3), Code of Ethics of the Education Profession in Florida. You were advised of the high esteem in which teachers are held and of the District's concern for any behavior which adversely [a]ffects this level of professionalism. You were reminded of the prime directive to maintain a safe learning environment for all students and that your actions violated this directive. You were advised to keep the information presented in this conference confidential and not discuss this with students or staff. Action To Be Taken You were advised that the information presented at this conference, as well as subsequent documentation, would be reviewed with the Assistant Superintendent in the Office of Professional Standards, the Superintendent of Region I, and the Principal of American Senior High School. All investigative data will be transmitted to Professional Practices Services (PPS), Florida Department of Education, for review and possible licensure action by the Education Practices Commission (EPC). Upon completion of the conference summary, a legal review by the School Board attorneys would be requested. Receipt of legal review with the endorsement by the Region Superintendent will compel formal notification of the recommended action or disciplinary measures to include suspension or dismissal. A determination was made that Respondent "be recommended for dismissal for the following charges: Just cause, including but not limited to: misconduct in office, gross insubordination, and violation of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties, and 6Gx13-5D-1.07 Corporal Punishment-Prohibited." On September 25, 2001, Dr. O'Donnell held a Conference-for-the-Record with Respondent to discuss this recommendation. At its October 24, 2001, meeting, the School Board took action to "suspend [Respondent] and initiate dismissal proceedings against [him] from all employment by the Miami-Dade County Public Schools, effective the close of the workday, October 24, 2001, for just cause, including but not limited to: misconduct in office, gross insubordination, and violation of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties, and 6Gx13-5D-1.07, Corporal Punishment-Prohibited."17
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating his employment as a professional service contract teacher with the School Board for the reasons set forth in the Notice of Specific Charges, as amended. DONE AND ENTERED this 14th day of August, 2002, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 14th day of August, 2002.
The Issue Whether Respondent, Kenneth Mills (Respondent), committed the violations alleged in the Notice of Specific Charges filed January 9, 2009, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is a duly constituted entity charged with the responsibility and authority to operate, control, and supervise the public schools within the Miami-Dade County Public School District. As such, it has the authority to regulate all personnel matters for the school district, including those personnel decisions affecting the professional teaching staff at Miami Lakes. At all times material to the allegations of this case, Respondent, Kenneth Mills, was an employee of the School Board and was subject to the disciplinary rules and regulations pertinent to employees of the school district. At all times material to this case, Respondent was employed by Petitioner and was assigned to teach mathematics at Miami Lakes. All acts complained of occurred during Respondent's tenure at Miami Lakes. During the 2007-2008 school year, Bridget McKinney was assigned to duties as an assistant principal at Miami Lakes. Among her responsibilities was the task of assuring that classrooms were ready for an open house at the school. The school had been chosen to be the site of a "town hall meeting." Respondent's classroom was among those rooms to be used for the session, and he was notified to have the room straightened and ready to receive the public. During an inspection of Respondent's classroom in final preparation for the meeting, Ms. McKinney discovered numerous photographs of Respondent hugging students, a large poster of a female student, and locks of hair taped to a cabinet with notes attached. Ms. McKinney removed the items described above and went to place them in Respondent's desk. When she opened the desk drawer, Ms. McKinney discovered more pictures of female students. One of the photographs showed a female student wearing a t-shirt that depicted the words, "I HAVE THE PUSSY, SO I MAKE THE RULES." Additional photos of female students showed one standing on Respondent's desk. Respondent took a picture of a female student standing on his desk. The picture was taken after hours. The student was not enrolled in Respondent's class at the time the photo was taken. Respondent claimed the student made the unsolicited visit to his classroom because "he looked lonely." One picture stored on Respondent's district-owned computer showed a female student with an added "I Love You" border around the photo. Respondent admitted that he possessed a school identification badge of a female student who was also shown in the poster-size photo Ms. McKinney removed from Respondent's wall. After Ms. McKinney reported her discoveries to the principal, James Parker, Respondent's computer was confiscated and turned over to the school investigators to conduct an analysis of the hard drive content. After retrieving the data, images were stored on a DVD, and the matter was turned over to the Civil Investigation Unit for further review. Respondent was notified of the on-going investigation in writing and was placed on alternate assignment at Region Center I. The investigation of the matter was assigned to Terri Chester. Ms. Chester reviewed the images from the DVD. The DVD stored photos and videos that were taken by Respondent. The images depicted: several provocative pictures with nudity or partial nudity; the picture of the female student with the t- shirt proclaiming "I HAVE THE PUSSY, SO I MAKE THE RULES;" audio of Respondent calling a student "nerd;" students who do not want to be video taped by Respondent who he challenges; Respondent proclaiming that video will be posted to You Tube by the next day; and other classroom activities that are inappropriate such as students running around the room, climbing on chairs, and attempts made by one student trying to staple other students in the back. Throughout the depicted images, Respondent does not redirect students to appropriate activities and does not assist them in any mathematics-related endeavor. Based upon the foregoing, Ms. Chester concluded that Respondent's conduct violated School Board rules. When presented with the findings of Ms. Chester's investigation, Respondent sought additional inquiry into the allegations against him. Ms. Chester then reviewed all information Respondent presented. Afterward, Ms. Chester referred the matter to the OPS. Dr. Hernandez, District Director at OPS, conducted a conference for the record (CFR) with Respondent. The purpose of the CFR was to discuss the investigative findings and Respondent's future employment with Petitioner. Throughout the investigation and review process, Respondent has not denied taking the pictures and videos. Moreover, when confronted with the images from his district-owned computer he provided no plausible explanation for the materials. Subsequent to the CFR, Mr. Parker as well as other staff from the region office recommended termination of Respondent's employment with the school district. Among the reasons Mr. Parker recommended termination was Respondent's failure to abide by the educational principles concerning teacher conduct. Mr. Parker determined that Respondent's conduct impaired his effectiveness as a teacher since he failed to properly manage students, displayed an inappropriate familiarity with students, and took and retained improper images. At its meeting on October 17, 2008, Petitioner accepted the recommendation to suspend Respondent and initiated dismissal proceedings against him. Thereafter, Respondent timely requested an administrative hearing to contest the proposed dismissal. Respondent does not deny displaying the photographs in his classroom or the retention of locks of hair. Moreover, Respondent does not deny that he took the images that were stored on his district-owned computer. Photography is one of Respondent's main interests. He sought to combine his interest in photography with his classroom responsibilities. Finally, Respondent maintains that he did not do anything wrong and that he is the victim of an administrator trying to get him fired. Respondent advised that it was his intention to have a disruptive class at the time portions of the video were shot to add some levity to the class work. Respondent stated that during the two hour blocks of teaching allocated to each class that it was his desire to have the students have some levity and laugh. The UTD negotiated terms and conditions of employment for Petitioner and its teachers. Under the terms of the collective bargaining agreement, also known as the UTD contract, "any member of the instructional staff shall be suspended or dismissed at any time during the school year, provided that such charges against him/her are based upon Florida Statutes."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a Final Order terminating Respondent's employment with the School District. DONE AND ENTERED this 20th day of July, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 20th day of July, 2009. COPIES FURNISHED: Kenneth Mills 17890 West Dixie Highway, Number 703 Miami, Florida 33160 Janeen L. Richard, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Mr. Alberto M. Carvalho Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1308 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether the Respondent should be dismissed from his employment with the Miami-Dade County School District.
Findings Of Fact Petitioner is charged by Florida law with the operation, control, management, and supervision of all public schools within the Dade County School District. At all times material to the allegations of this case, Respondent, Maurice Cherry, was employed by Petitioner as a security monitor at Thomas Jefferson Middle School (TJMS). Sergeant Buck is a seventeen-year veteran police officer employed by the Metro-Dade Police Department. During the month of November 1996, Officer Buck was deployed in an undercover assignment related to activities and complaints at several adult bookstores. These complaints alleged lewd and lascivious acts were occurring on the premises of several named bookstores. While in his undercover capacity at or near one of the adult bookstores, Officer Buck met the Respondent. During this initial conversation with the Respondent, Officer Buck noted that the Respondent wore what appeared to be a school security jacket. Because Respondent made several suggestive sexual comments and verbal advances, Officer Buck determined to investigate the Respondent further as he was concerned that Respondent might be pursuing improper sexual conduct on school property with minors. In furtherance of his investigation, Officer Buck discovered that Respondent did, in fact, provide security monitor services at TJMS. The officer went to the school property and was attempting to verify that the security monitor employed at TJMS was the individual he had previously encountered at the adult bookstore site. While not expecting to run into Respondent, Officer Buck did make contact with the suspect in the school hallway. On this occasion Respondent ushered the police officer into a locked, second-story classroom (for which Respondent had the key) and engaged in conversation of a sexual nature. During the course of this brief encounter, Respondent grabbed Officer Buck in the groin area, and, as the police sergeant interpreted it, attempted to touch the officer's penis. Officer Buck resisted the sexual advance and, after making an excuse to Respondent, left the school premises. At no time during this episode did Respondent say or indicate to Officer Buck that students or minors were involved in any sexual activities with the Respondent. After several months of reassignment on another police project, Officer Buck returned to TJMS in April 1997 to resume his investigation of the Respondent. Again, his primary focus was to assure that the security monitor was not engaged in any sexual activities with minors. In this connection, Officer Buck approached the Respondent and engaged in conversation to determine if the Respondent would divulge any information related to minors. Respondent did not. It did not appear that Respondent was interested in minors. On the other hand, Respondent again attempted to make sexual contact with Officer Buck. Although during school hours and with students present on campus, Respondent ushered the undercover officer into a locked room, asked him to show him his penis, grabbed Officer Buck in the groin area as if to attempt to remove his penis from his pants, and exposed his own penis to Officer Buck. All of this occurred within a matter of moments. Since Officer Buck had sounded a verbal signal to officers who were waiting outside, police backups were making their way to the classroom where the officer and Respondent were located. Within a short time, Respondent was in police custody and was charged with criminal offenses stemming from the lewd behavior. This event made the evening television news. It was also covered by at least one prominent Miami-area newspaper. As a result of the publicity generated by Respondent's arrest, the principal at TJMS did not want the security monitor back at her school. Parents expressed concerns regarding Respondent and his presence at the school. The allegations related to Respondent's arrest resulted in a disturbance at the school such that to permit him to return would have caused additional turmoil and disruption. Such turmoil would result in the school system being brought into further disgrace and disrespect because of the unacceptable conduct Respondent exhibited. Respondent's effectiveness as a school security monitor has been greatly diminished as a result of his conduct and the resulting criminal charges. That the case was not criminally prosecuted does not mitigate the damage done to Respondent's effectiveness because, while he was not prosecuted, the lewd acts were committed on school property during the school day.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a Final Order dismissing Respondent from his employment with the school district. DONE AND ENTERED this 27th day of August, 1998, in Tallahassee, Leon County, Florida. J. D. Parrish 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 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1998. COPIES FURNISHED: Carlos E. Mustelier, Jr., Esquire School Board of Miami-Dade County 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Leslie A. Meek, Esquire United Teachers of Dade 2929 Southwest Third Avenue Suite One Miami, Florida 33129 Frank T. Brogan Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Dr. Roger C. Cuevas, Superintendent School Board of Miami-Dade County 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132
The Issue Whether Respondent's employment as a teacher by the Miami- Dade County School Board should be terminated for the reasons specified in the letter of notification of suspension and dismissal dated June 20, 2013, and the Notice of Specific Charges filed on August 28, 2013.
Findings Of Fact Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Miami- Dade County, Florida. At all times pertinent to this case, Respondent was employed as a social studies teacher at Horace Mann Middle School ("Horace Mann"), a public school in Miami-Dade County, Florida. At all times material, Respondent's employment was governed, in part, by a collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade ("UTD Contract"). Dr. Jones-Carey, the principal at Horace Mann, was authorized to issue directives to her employees, including Respondent. Dorothy De Posada, the assistant principal at Horace Mann, was authorized to issue directives to her employees, including Respondent. Petitioner alleges, in its Notice of Specific Charges, an array of factual scenarios spanning several years that, when considered individually or in concert, supply just cause for Respondent's termination. Below, the undersigned has endeavored to address each seriatim. 2010-2011 School Year: Dr. Jones-Carey issued Respondent a letter of reprimand on May 23, 2011, concerning an alleged incident that occurred on April 27, 2011. On May 25, 2011, Dr. Jones-Carey held a Conference for the Record ("CFR") regarding this alleged incident.1/ Respondent was directed to strictly adhere to all Miami-Dade County School Board ("MDCSB") rules and regulations, specifically, rules 6Gx13-4A-1.21 and 6Gx13-4A-1.213. 2011-2012 School Year: On April 13, 2012, subsequent to the investigation of an alleged incident that occurred on February 27, 2012, a CFR was held. Respondent was directed to adhere to all MDCSB rules and regulations, specifically 3210, Standards of Ethical Conduct, and 3210.01, Code of Ethics. Respondent was further directed to refrain from contacting any of the parties in the incident, refrain from using physical discipline, and "to conduct [herself] both in [her] employment and in the community in a manner that will reflect credit upon [herself] and M-DCPS." Respondent agreed to a 17-day suspension without pay regarding the alleged incident. 2012-2013 School Year: October 24, 2012 On November 16, 2012, subsequent to an investigation of an alleged incident that occurred on October 24, 2012, a CFR was held. Respondent was directed to adhere to all MDCSB policies, specifically 3210, Standards of Ethical Conduct, and 3210.01, Code of Ethics; refrain from contacting any parties involved in the investigation; and "to conduct [herself] both in [her] employment and in the community in a manner that will reflect credit upon [herself] and M-DCPS." Additionally, on November 28, 2012, Respondent was issued a letter of reprimand concerning the October 24, 2012, incident. November 5, 2012 On November 5, 2012, Dr. Jones-Carey observed several male students standing outside of Respondent's classroom during the class period. While Petitioner contends said students were told to remain outside of the classroom at Respondent's instruction due to body odor, Petitioner failed to present sufficient evidence to support such a finding.2/ November 26, 2012 Shawnda Green-McKenzie is the Horace Mann social studies department chair and a social studies teacher. Ms. McKenzie explained that, on or around November 26, 2012, it was necessary for several homeroom classes to be "dissolved." The students in the dissolved homeroom classroom were to be added to the roster of other homeroom classes. Ms. McKenzie further explained that the homeroom teachers, such as Respondent, were unaware of the number of additional homeroom students they would acquire until the day the additional students arrived. On November 26, 2012, Ms. Green-McKenzie observed that a substantial number of the newly acquired students did not have desks or chairs available for their use in Respondent's homeroom class. She further observed some of the children sitting on the floor. Petitioner failed to present any evidence concerning when the new students presented themselves to Respondent's homeroom or the duration said students did not have available desks or chairs. While Ms. Green-McKenzie agreed that children sitting on the floor would "be kind of a safety concern if someone were walking around in the classroom," she further opined that Respondent's classroom was "definitely too small to take any additional desks" and adding additional chairs would make it "tight." February 8, 2013 On March 21, 2013, subsequent to an investigation of an alleged incident that occurred on February 8, 2013, a CFR was held. Respondent was directed to adhere to MDCSB policies and conduct herself in her employment and community in a manner that would reflect credit upon herself and the teaching profession. On April 9, 2013, Respondent issued a letter of reprimand concerning the alleged incident which likewise directed her to adhere to MDCSB policies and conduct herself in her employment and community in a manner that would reflect credit to herself and the teaching profession. February 20, March 7, and April 1, 2013 Dr. Jones-Carey testified that, on those occasions when a teacher is absent and a substitute teacher is unavailable, the students are typically "split" among classrooms within the same department. Teachers are expected to cooperate and receive the "split-list" students. Prior to February 9, 2013, Respondent was accommodating and amenable to accepting students on the "split-list." On February 20, March 7, and April 7, 2013, however, Ms. Green-McKenzie was informed that Respondent was unable to receive, or uncomfortable in receiving, any additional students. Respondent's refusal to accept the split-list students was premised upon her concern that accepting students, who may potentially have behavioral problems, may incite further problems between herself and the Horace Mann administration. After the second occasion (March 7, 2013), Ms. McKenzie-Green simply stopped placing Respondent's name on the split-lists. On each of the above-referenced occasions, Ms. McKenzie Green accepted the Respondent's split-list students into her classroom. Ms. McKenzie-Green explained that her classroom is a "double" that always has additional space and seating and can accommodate upwards of 60 students. Dr. Jones-Cary credibly testified that Respondent's unwillingness to accept the split-list children created a disruption in the "flow of instruction" and was disruptive to the operation of the school. March 1 and 5, 2013 On March 1 and March 5, 2013, Ms. De Posada observed Respondent, during class, seated in a chair in the doorway of her classroom with her feet up on the doorframe. On both occasions, Ms. De Posada directed Respondent to move inside the classroom; however, she refused. March 7, 2013 On March 7, 2013, Ms. De Posada observed that Respondent's classroom door was open. When Ms. De Posada directed Respondent to close the door, Respondent refused. In addition to Ms. De Posada's directive, Dr. Jones-Carey had previously issued an email directive to all faculty and staff to keep the classroom doors closed in an effort to preserve the newly-installed air-conditioning system. March 12, 2013 On March 12, 2013, Ms. De Posada was present in the main office with several parents, as well as clerical staff. Respondent was also present in the main office for the purpose of making photocopies. Due to the number and nature of individuals present, coupled with a pending deadline on another administrative matter, Ms. De Posada requested Respondent to leave the main office and offered clerical assistance in providing Respondent the needed copies. Ms. De Posada credibly testified that, in response to the request, Respondent complained loudly and defiantly, and refused to leave the office when directed. March 21, 2013 On March 21, 2013, Ms. De Posada presented to Respondent's classroom to conduct an official observation. On that occasion, she observed that, after the class bell had rung, Respondent's students remained outside and unsupervised. Ms. De Posada took it upon herself to usher the students inside the classroom. Respondent arrived prior to the late bell and took her seat at her desk. Ms. De Posada advised Respondent that she was there to officially observe and requested Respondent's lesson plans. Ms. De Posada credibly testified that Respondent thereafter opened her desk drawer, tossed her lesson plans to Ms. De Posada without speaking, and slammed the desk drawer.3/ Respondent proceeded to call roll and, upon completion of same, began reading the paper. Once finished her reading, Respondent remained in her chair and, with the exception of reprimanding three children, did not engage with the students. Respondent did not engage in any conversation with Ms. De Posada throughout the duration of the observation. Respondent concedes that she did not interact with Ms. De Posada during the observation because of her concern of being falsely accused of irate or belligerent behavior. April 3, 2013 On April 3, 2013, Horace Mann held a mandatory faculty meeting to provide training for the Florida Comprehensive Assessment Test ("FCAT"). Per the UTD Contract, teachers are required to extend their workday for the purpose attending faculty meetings; however, such meetings cannot exceed one hour and shall begin no later than ten minutes after students are dismissed. On this occasion, the faculty meeting was scheduled to begin at 4:00 p.m., however, it began a few minutes later to allow all teachers to arrive. Respondent, believing the UTD Contract allowed for her to leave at 5:00 p.m., left prior to the meeting being formally dismissed and without prior approval, at approximately 5:00 p.m. When Dr. Carey-Jones called out to Respondent, she continued to walk away from the meeting. Respondent was notified via a school-wide email that a make-up session for the FCAT training would be conducted at 8:20 a.m. Respondent perceived the make-up session was voluntary because it was scheduled prior to 8:30 (the time she believes she is required to work) and conflicted with a FCAT practice run also scheduled for that morning. Respondent did not seek clarification as to where she was to report. Accordingly, Respondent did not present to the training, but rather, went to the testing center. It is undisputed that Respondent did not complete the requisite training, and, therefore, was unable to proctor the FCAT exam. As a result, other teachers were assigned to cover Respondent's duties or responsibilities. April 24 and May 6, 2013 On April 24, 2013, a CFR was held and Respondent was directed to adhere to School Board polices and conduct herself in her employment and community in a manner that would reflect credit upon herself and her profession. On May 6, 2013, following Dr. Jones-Carey's recommendation that Respondent's employment be terminated, the Office of Professional Standards ("OPS") held a final CFR. Thereafter, OPS recommended that Respondent's employment be suspended pending dismissal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Miami-Dade County School Board enter a final order finding Shavonne Anderson guilty of gross insubordination, suspend her employment without pay for a period of 180 school days, and place her on probation for a period of two years. Because Ms. Anderson has already been suspended for more than 180 school days, it is RECOMMENDED that her employment be reinstated, with the calculation of back pay not to include pay for the 180- day suspension period. DONE AND ENTERED this 30th day of December, 2013, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 30th day of December, 2013.
The Issue The first issue in this case is whether, as the district school board alleges, a middle school teacher had a consensual sexual relationship with a teenage student; if this allegation is proved to be true, then it will be necessary to decide whether the school board has just cause to fire the teacher.
Findings Of Fact Parties. The Miami-Dade County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. Respondent Mariella Brenlla ("Brenlla") holds a Florida Educator Certificate. She is certified in Emotionally Handicapped, Reading, and Educational Leadership. Brenlla also holds a National Board of Education certification in exceptional needs. She was employed as a teacher in the Miami-Dade County Public School System for nearly 18 years, from 1992 until November 2009, at which time the School Board suspended her without pay and gave notice that it intended to dismiss her for cause, giving rise to the instant proceeding. During the 2001- 02 school year, which is the period relevant to this case, Brenlla taught students who, having been diagnosed as Severely Emotionally Disturbed ("SED"), received special education services in the Exceptional Student Education ("ESE") program at Ponce de Leon Middle School ("Ponce de Leon"). Allegations and Investigation. In May 2006, a former ESE student of Ponce de Leon named J. B. sent Brenlla an e-mail inviting her to attend his high school graduation. Although she had not heard from him in nearly four years, Brenlla knew J. B. because she had been his "confidant" (her word) during the better part of 2002; their relationship, the nature of which is at the heart of the instant dispute, had begun when J. B. was a 14-year-old eighth grader who attended class in a room adjacent to Brenlla's, and ended about midway through J. B.'s freshman year of high school. Brenlla did not reply to the electronic invitation, and she did not go to J. B.'s graduation ceremony. On October 23, 2006, J. B. sent Brenlla another e-mail. In this message, J. B. demanded that Brenlla call him "ASAP" on a matter of "the utmost importance." He added, "I have terrible news for you." Concerned, Brenlla called. When they spoke, J. B. told Brenlla that he wanted to see her. Brenlla expressed her unwillingness to meet with J. B. Then J. B. revealed the "terrible news": he was thinking about disclosing that he and Brenlla had had a sexual affair in 2002. Brenlla instructed J. B. not to call or contact her again. J. B. did not accede to Brenlla's directive. He sent more e-mails, and placed more phone calls to Brenlla. On October 24, 2006, Brenlla filed a report with the Miami-Dade Schools Police, complaining that J. B. had made threatening comments to her, such as "start saying goodbye to your family." On November 2, 2006, J. B. filed a complaint with the Coral Gables Police Department, alleging that, in 2002, while he was in middle school and, later, high school, he and Brenlla had been involved in a consensual sexual relationship which had begun shortly after spring break and continued until around December. On November 16, 2006, J. B. gave a sworn statement that detailed the numerous and diverse sexual activities in which, he claimed, he and the teacher had engaged. The police commenced an investigation. On November 21, 2006, the detective in charge directed J. B. to place a telephone call to Brenlla, which the police would record, in hopes that J. B. might coax Brenlla into making some incriminating comments. The controlled call was made but failed to produce any unambiguously inculpatory remarks. During the brief conversation, Brenlla neither admitted nor denied the existence of a previous sexual relationship; her unremarkable responses to J. B.'s questions can be construed as being consistent with either possibility. In sum, the digital recording of this call, which is in evidence, is not probative one way or the other. Another attempt to trick Brenlla into incriminating herself was made a few months later. On February 6, 2007, the police equipped J. B. with a "wire" (some sort of recording device) and instructed him to approach Brenlla in the school parking lot, where he was supposed to initiate a conversation about their sexual relationship. This plan came a cropper because, rather than talk with J. B., who accosted Brenlla as she was getting into her car after work, Brenlla insisted that J. B. leave the school premises (on which he was trespassing), and she called the school police. Arrest and Prosecution. On February 21, 2007, J. B. informed the police (for the first time) that Brenlla had a mole or freckle near her vagina. Armed with this information, the police eventually obtained a search warrant, which was issued on August 9, 2007. The warrant authorized detectives to inspect and photograph Brenlla's pubic area. Law enforcement officers executed the warrant and, as the resulting pictures (which are in evidence) show, Brenlla does have a nondescript pigmented spot in the vicinity of her vagina. Soon after the service of the search warrant, Brenlla was arrested and charged with four felony counts of sexual battery on a minor. The criminal prosecution of Brenlla ended when she entered into a Pre-Trial Diversion Program, which required that she plead guilty to a misdemeanor charge of child abuse (no harm) and agree not to take a classroom teaching position for the 2009-10 school year.1 Holding up its end of the bargain, the state entered a nolle prosequi on the felony charges. As far as the record in this case shows, Brenlla is no longer in jeopardy of being prosecuted for crimes she might have committed in connection with her relationship with J. B. The Operative Historical Events. Credibility and Weight of the Evidence. The operative historical facts——especially the nature of the relationship between Brenlla and J. B.——are sharply disputed. Moreover, the gravamen of the School Board's case being that Brenlla had sexual relations with an underage student, the conduct in question is the kind which occurs in private, unobserved by disinterested eyewitnesses. Resolving disputes of fact in a case such as this largely boils down to determining which of the only two witnesses who really know for sure what happened is the more believable. Having listened carefully to and closely observed J. B. and Brenlla at final hearing, the undersigned found Brenlla to be, on balance, the better witness. For the most part, her demeanor was poised and professional; the content of her testimony (with a couple of significant exceptions) is reasonable; she seemed responsible and mature, her denials of wrongdoing sincere. The undersigned wanted to believe her, because the behavior of which she is accused is so reckless and outrageous (not to mention criminal), and she appeared to be none of those things. J. B., in contrast, while appropriate in demeanor and articulate in speech (though glib at times), made a less favorable impression. In part this was because he occasionally came across as vindictive. But also, and more important, the content of J. B.'s testimony has elements that seem, on the surface at least, to be fictional or (as Brenlla contends) fantastic; that——coupled with the fact that J. B.'s story, like a snowball rolling downhill, has gotten bigger and gathered additional details as it moves forward through time——casts doubt on his veracity. Were this case merely a "swearing contest" between Brenlla and J. B., therefore, Brenlla would have won. There are, however, some pieces of circumstantial evidence that corroborate J. B.'s testimony and tip the balance in favor of his version of the relevant events. These will be discussed next. J. B.'s Knowledge of Brenlla's Inconspicuous Mole. J. B. told the police that Brenlla had a mole near her vagina, and this turned out to be true. Thus, either J. B. made a lucky guess, or he somehow had learned about this personal detail concerning Brenlla's body. The undersigned considers the first possibility to be too remote to credit: if J. B. were clever enough to gamble that Brenlla would be found to have a mark in her pubic area, he also would have been aware that sending the police on a wild goose chase which proved him wrong would leave his credibility in tatters. More likely, therefore, is that J. B. knew about the mole, and the undersigned so finds. The question then is: how he know? The simplest (and hence most likely) explanations are: (a) somebody with personal or secondhand knowledge told him; (b) he saw a photograph of Brenlla in a state of undress; or (c) he saw the mole in person. Brenlla's explanation that J. B. might have overheard her talking about the mole with another teacher, or on the phone making a waxing appointment, strikes the undersigned as highly implausible and is rejected. Of the most obvious explanations for J. B.'s knowledge, the undersigned considers (c) above to be the likeliest possibility, notwithstanding that J. B. did not immediately tell the police about this crucial bit of information, because it is the simplest explanation for which, as will be seen, there is other credible evidence besides J. B.'s own testimony (the believability of which is the point presently under consideration). At bottom, the fact that J. B. knew about the mole near Brenlla's vagina is neither direct nor conclusive proof that he and she had a sexual relationship, as he claims; his knowledge of this intimate detail does, however, corroborate his testimony in this regard. The Telephone Calls. Shortly before the final hearing, the School Board obtained from T-Mobile, U.S.A., Inc., via subpoena, the invoices for J. B.'s cell phone service for the period from May 25, 2002 to July 16, 2002, comprising 53 days (the "First Stage"); and the period from August 26, 2002 to October 12, 2002, comprising 48 days (the "Third Stage"). The evidence does not make clear why there were no invoices for the 40-day period running from July 17, 2002 to August 25, 2002. This middle period for which there are no phone service details will be called the "Second Stage". The invoices show the date, time, and duration of calls to J. B.'s cell phone ("incoming calls"), and calls from J. B.'s cell phone ("outgoing calls"). For each call, whether incoming or outgoing, the bills identify the other party's phone number. At hearing, Brenlla identified two telephone numbers which appear in the bills as being hers. One, she explained, was her home number (a landline), and the other she identified as her work number. Although Brenlla testified that J. B. and other students called her occasionally on her cell phone, she did not volunteer her cell phone number(s) for the relevant periods and was not pressed to do so; thus, no cell-to-cell phone calls are accounted for in the discussion that follows. The undersigned has studied the invoices, and it is no exaggeration to say that they are the smoking gun. For what the bills show is that, during the 101 days they cover, Brenlla and J. B. talked on the phone——a lot. The volume, frequency, duration, and timing of these conversations simply defy innocent explanation. The records show that Brenlla and J. B. had approximately 197 conversations. (This does not include calls of one minute or less, which the undersigned interpreted as mere attempts; there were about 120 of those. Also, the undersigned counted multiple calls as a single conversation if they occurred in rapid sequence, as would happen if a call were dropped or momentarily interrupted from some other reason. Thus, a different reviewer might come up with different numbers at the margins. The undersigned is highly confident, however, that the observations made herein are fair and accurate.) Nearly 80 percent of the documented conversations, or 156 of them, took place during the First Stage, which corroborates J. B.'s testimony that this period corresponded to the most intense stage of his relationship with Brenlla. Combined, these conversations, which occurred during a period of 53 days, consumed approximately 1,451 minutes——about 24 hours in all. Brenlla initiated 138 of these conversations. In other words, Brenlla called J. B. about 88 percent of the time during the First Stage. The frequency of their contact is notable as well. During the First Stage, the pair talked on 46 of the 53 days covered by the bills. The numbers drop significantly in the Third Stage, again corroborating J. B.'s testimony that the relationship began to unravel after he started high school in the fall. In this period there were 41 documented conversations comprising about 303 minutes. Brenlla initiated nearly three-quarters (30) of these calls, continuing the previous pattern of Brenlla being the one who, by far, most often made the first move. The two had conversations on 23 out of the 48 days in this period——a marked decrease in intensity relative to the First Stage. Still, with a phone conversation occurring on average about every other day, the two remained in suspiciously close contact by most reasonable measures, especially in view of the fact that J. B. was now in high school and therefore would have few, if any, school-related reasons to talk regularly with a teacher at his old school. Some further observations underscore the inculpatory nature of these documented calls. Many of them took place during non-business hours (before 9:00 a.m. and after 5:00 p.m.) and on weekends. Approximately 19 percent——nearly one in five—— occurred between 9:00 p.m. and midnight, hours during which a teacher rarely should have a legitimate pedagogical reason for calling a student. Another 26 percent, roughly, or about one quarter, of the conversations were held between 5:00 p.m. and 9:00 p.m. Five percent or so of the calls took place between 6:00 a.m. and 9:00 a.m. While the majority of the conversations (102) took place on weekdays, of which 69 fell during the covered periods, the couple spent more time on the phone (957 minutes vs. 749 minutes) during the 29 weekend days than on regular workdays. There were, in addition, seven conversations totaling 48 minutes during three holidays, i.e. Memorial Day, Independence Day, and Labor Day. Brenlla testified that she called J. B. because she was concerned about his transition to high school, which she asserted could be difficult for SED students such as J. B. to make, and because she had become J. B.'s confidant, someone he trusted and with whom he could share his secrets. These explanations do not hold water and are rejected. The available records show that Brenlla was contacting J. B. almost literally around the clock, day and night, constantly, even on weekends and holidays. (Remember, too, that Brenlla's cell phone number was not disclosed; it is possible that the over-the-top degree of telephonic contact between her and J. B. as revealed above was in fact even higher. Moreover, there is no reason to suppose that Brenlla and J. B. stopped talking on the phone during the 40 days between the First Stage and the Third Stage. To the contrary, it is probable that there was a substantial amount of contact between the two during the Second Stage, for which records are not available.) The telephone records do not prove the content of the conversations between Brenlla and J. B., nor do they establish that the two had a sexual relationship. The records are circumstantial evidence of a very close and probably intimate personal relationship, however, and as such they not only provide some independent support for the finding above regarding how J. B. likely came to know about Brenlla's mole, but also they corroborate J. B.'s testimony that he and Brenlla engaged in a consensual sexual affair. The Affair. At the beginning of the 2001-02 school year, Brenlla administered a standardized test to determine J. B.'s abilities in reading, math, and basic humanities. This was how Brenlla first met J. B., who was at the time a 14-year- old, eighth grade SED student in the ESE program at Ponce de Leon. Though J. B. was not one of Brenlla's students, his teachers' (he had two) classroom was next door to the classroom in which Brenlla and another teacher taught their SED students. As the school year progressed, Brenlla became better acquainted with J. B. because he and other SED students occasionally would visit her classroom during the "free period," usually on Fridays, when ESE students who had completed their assignments and otherwise behaved themselves were rewarded with time to enjoy nonacademic activities. Brenlla taught J. B. how to play chess, and he assisted her with classroom chores. The relationship between Brenlla and J. B. became increasingly personal. One Friday shortly after spring break, Brenlla invited J. B. to have an online conversation with her that night via instant messaging. He agreed. An IM chat was attempted but failed due to computer problems, forcing J. B. and Brenlla to communicate by telephone. This led to a lengthy session of "phone sex." Thereafter, Brenlla and J. B. became physically intimate. J. B. testified that he and Brenlla engaged in a variety of foreplay in Brenlla's classroom. J. B. claimed that these encounters occurred before class, at lunchtime, and after school, two or three times a day, nearly every day. The undersigned, however, credits Brenlla's testimony regarding the unlikelihood of this much contact going unnoticed, given the proximity of other adults, the fact that the SED classrooms were never locked, and the generally high level of supervision to which SED students are subjected. J. B.'s account more likely than not is exaggerative. Nevertheless, even after discounting J. B.'s testimony for probable embellishments, the undersigned finds that, more likely than not, Brenlla and J. B. found ways to engage in furtive kissing and petting in moments when no one was around. While such moments probably did not arise as frequently as J. B. recalls, it is likely (and thus found) that the couple grabbed opportunities to disappear briefly from time to time. J. B. testified that he and Brenlla frequently engaged in oral sex (fellatio and cunnilingus) in her car after school. While some aspects of J. B.'s testimony in this regard are difficult to believe——such as that Brenlla sometimes parked her car in residential neighborhoods, where the two would engage in oral sex and, on occasion, nearly be caught——the undersigned considers it likely, and finds, that, among other sexual activities, J. B. and Brenlla performed oral sex on one another many times inside her vehicle. J. B. testified that he and Brenlla often had "phone sex." J. B. did not define "phone sex," but the undersigned reasonably infers, from the totality of J. B.'s testimony and the plain meaning of the term, that the phone sex in question entailed conversations having explicit sexual or erotic content. The undersigned credits J. B.'s testimony in this regard, which is corroborated by the cell phone bills discussed above, and finds that Brenlla had phone sex with J. B. on numerous occasions. J. B. claimed that he and Brenlla engaged in sexual activities in his apartment, and that it was at this location that they had anal and vaginal intercourse, but only a few times. J. B. testified that these trysts occurred during the day when his father was at work and his mother out running errands. J. B.'s mother, however, testified that she saw Brenlla leaving the apartment on some occasions, and was aware that her son was involved in a sexual relationship with the teacher. The undersigned doubts the reliability of the mother's testimony but finds that, more likely than not, Brenlla visited J. B. at his apartment once or twice and had sexual intercourse with him there. The sexual affair between Brenlla and J. B. continued through the summer months following the 2001-02 school year and even after J. B. started high school in the fall of 2002. Gradually, though, the relationship began to fizzle out. With J. B. attending a different school, the two saw each other less frequently, and they began to fight and argue on the phone. In or around December 2002, Brenlla expressed her desire to end the relationship. The two would have no more contact for nearly four years, until May 2006, when (as found above) J. B. sent Brenlla an e-mail asking her to come to his high school graduation. Determinations of Ultimate Fact The greater weight of the evidence establishes that Brenlla engaged in a consensual sexual relationship with a 14- year-old SED student that lasted for more than six months and included numerous instances of intimate physical contact in addition to many hours of documented telephonic contact. Based on this course of conduct, it is determined that Brenlla is guilty of the offense of immorality as defined in Florida Administrative Code Rule 6B-4.009(2).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order terminating Mariella Brenlla's employment in the Miami-Dade County Public School System. DONE AND ENTERED this 18th day of October, 2010, 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 18th day of October, 2010.
The Issue Whether just cause exists to suspend Respondent without pay and terminate her employment as a teacher.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Palm Beach County, Florida. At all times material to this case, Respondent was employed by the School Board as a third-grade teacher at Melaleuca Elementary School in Palm Beach County, Florida. Respondent was initially hired by the School Board as a teacher in 2006. At all times material to this case, Respondent's employment with the School Board was governed by Florida law, the School Board's policies, and the Collective Bargaining Agreement between the School Board and the Palm Beach County Classroom Teachers Association. The Florida Standards Assessment ("FSA") is a standardized, statewide, individual assessment examination administered to students in Florida's public schools. The FSA for third-grade students includes the Mathematics and English Language Arts ("ELA") Reading assessments. Student performance on the FSA is a measure of student accountability. A student's test score on the FSA must accurately reflect the student's actual performance on the test. If a student receives assistance, the student's performance will not be accurately measured. Student performance on the FSA is a factor in the determination of a school's grade, a teacher's evaluation, and potentially, a teacher's compensation and bonus. To maintain the integrity of the FSA and to ensure the proper administration of the FSA, teachers receive mandatory training in the correct administration of the test. On or about March 16, 2016, Respondent attended the FSA Test Administrator Training at Melaleuca Elementary School, which included instruction about test security. On or about March 16, 2016, Respondent received a copy of a PowerPoint entitled "Spring 2016 Florida Standards Assessments Training Materials – Computer Based Grades 4-5 ELA Reading; Grade 5 Mathematics – Paper-Based Grade 3 ELA Reading and Grades 3 & 4 Mathematics." On or about March 16, 2016, Respondent signed the "Test Administration and Security Agreement" and the "Test Administrator Prohibited Activities Agreement," which prohibit assisting students in answering tests, giving students verbal and non-verbal cues, and changing or interfering with student responses. By signing these agreements, Respondent agreed to follow all test administration and security procedures outlined in the manual and rules, and she agreed not to engage in any prohibited activities or acts that would violate the security of the test or cause student achievement to be inaccurately measured. At the hearing, Respondent acknowledged she understood the contents of these agreements and the prohibited testing activities. On March 31, 2016, Respondent was a third-grade teacher at Melaleuca Elementary School and administered/proctored the FSA Mathematics assessment to third-grade students. During the test, Respondent gave assistance to students and interfered with students' answers. Specifically, Respondent: (1) made noises and tapped on students' desks and their test answer sheets to signal wrong answers; (2) pointed to wrong answers on the test answer sheets; whispered to a student that "she was doing a good job"; and erased marks and unwanted answers on students' answer sheets. Many students who were in the classroom when Respondent administered the FSA Mathematics assessment on March 31, 2016, credibly and persuasively testified at the final hearing regarding the assistance Respondent gave to them during the examination, and Respondent's interference with their answers during the examination. N.D. testified that during the test, Respondent made noises to signal a wrong answer. N.D. also testified that Respondent pointed to a question on her answer sheet in an effort to have N.D. change her answer. N.D. also testified that Respondent erased bubbles on her answer sheet. A.C. testified that during the test, Respondent made noises to signal a wrong answer. A.C. also testified that Respondent erased bubbles on her answer sheet. A.V. testified that during the test, Respondent made noises to signal a wrong answer. A.V. also testified that Respondent whispered to her that "she was doing a good job." A.V. also testified that Respondent pointed to answers and erased bubbles on her answer sheet. H.C. testified that during the test, Respondent made noises to signal a wrong answer. D.A. testified that during the test, Respondent tapped on his desk to signal a wrong answer. Y.C. testified that during the test, Respondent made noises to signal a wrong answer. A.R.E. testified that during the test, Respondent made noises to signal a wrong answer. A.R.E. also testified that Respondent erased bubbles on his answer sheet. A.H. testified that during the test, Respondent made noises. A.H. also testified that Respondent erased a mark on his answer sheet. Moreover, at the hearing, Respondent conceded that she erased bubbles on students' answer sheets and prompted a student when asked by the student about the definition of a polygram. Respondent's attempt to explain how she did not assist students and interfere with their answers during the FSA examination is unpersuasive and not credited. Respondent's assistance to students and interference with students' answers during the FSA Mathematics assessment resulted in the Florida Department of Education ("DOE") invalidating each of the students' math tests in Respondent's classroom. The invalidation of the students' math tests resulted in a deficit for the placement of students in the appropriate math instruction for the following school year. The persuasive and credible evidence adduced at hearing clearly and convincingly establishes that Respondent is guilty of misconduct in office in violation of Florida Administrative Code Rule 6A-5.056(2). By assisting students and interfering with students' answers during the FSA examination, Respondent violated Florida Administrative Code Rules 6A-10.042(1)(c), (d), and (f). Respondent also violated rules 6A-5.056(2)(d) and (e) by engaging in conduct which disrupted the students' learning environment and reduced Respondent's ability to effectively perform duties. Respondent also violated rules 6A-10.081(2)(a)1., (2)(b)2., and (2)(c)1., by failing to make reasonable effort to protect students from conditions harmful to learning, intentionally distorting or misrepresenting facts concerning an educational matter in direct or indirect public expression, and failing to maintain honesty in all dealings. By assisting students and interfering with students' answers during the FSA examination, Respondent also violated School Board Policy 1.013 by failing to carry out her assigned duties in accordance with state rules and School Board policy. Respondent's conduct in assisting students and interfering with students' answers during the FSA examination was clearly flagrant and purposeful. Respondent was trained not to assist students and interfere with students' answers during the FSA examination. Respondent was aware of the prohibition against assisting students and interfering with students' answers during the FSA examination. Rather than adhere to these prohibitions, however, Respondent made a conscious decision to ignore them.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order upholding the suspension and termination of Respondent's employment.1/ DONE AND ENTERED this 1st day of September, 2017, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 1st day of September, 2017.
The Issue Whether just cause exists for Petitioner to suspend Respondent for 15 days without pay.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Miami-Dade County, Florida. At all times material to this case, Respondent was employed as a social studies teacher at Palmetto Middle School (“Palmetto”), a public school in Miami-Dade County, Florida. At all times material to this case, Respondent’s employment with the School Board was governed by Florida law, the School Board’s policies, and the collective bargaining agreement (“CBA”) between the School Board and the United Teachers of Dade (“UTD”). The incident giving rise to this proceeding occurred on March 18, 2014, during the 2013-2014 school year. On March 18, 2014, Respondent was co-teaching a seventh grade social studies class with Vivian Taylor. Ms. Taylor is another social studies teacher at Palmetto. K.W. was a female student in the class. At that time, K.W. was approximately five feet tall and weighed ninety pounds. Prior to March 18, 2014, K.W. sat in an assigned seat in the back of the classroom of the social studies class co- taught by Respondent and Ms. Taylor. On March 17, 2014, K.W. displayed disruptive behavior in the classroom. On March 18, 2014, as the bell rang to signal that class was about to begin, K.W. and other students entered Respondent’s and Ms. Taylor’s classroom. When K.W. entered the classroom on March 18, 2014, Respondent instructed K.W. that she could not sit at her seat in the back of the classroom, and that she needed to sit at a desk in the front of the classroom. Instead of walking toward her newly assigned seat in the front of the classroom, K.W. disregarded Respondent’s instructions and attempted to walk in the opposite direction toward her prior assigned seat in the back of the classroom. Respondent then stood in the aisle, stepped in front of K.W., and “blocked” her “path” toward the seat in the back of the classroom. Respondent blocked K.W.’s path in an attempt to re-direct her to her newly assigned seat in the front of the classroom. In his effort to block K.W.’s path of travel and re-direct her to her newly assigned seat in the front of the classroom, Respondent and K.W. made very slight physical contact with each other. The physical contact between Respondent and K.W. was minor, inadvertent, and lasted no more than one second. At hearing, Respondent denied that he ever made physical contact with K.W. Ms. Taylor, the only other purported eye-witness to the incident, who testified at the hearing on behalf of the School Board, was asked by the School Board’s counsel to describe whether Respondent and K.W. ever made physical contact. In response, Ms. Taylor testified: It was just their chest, just the top body, because Mr. Chandra-Das is a bit taller than her, so when he stepped up, that’s what touched. Ms. Taylor described the physical contact between Respondent and K.W. as very slight--“it was just a touch,” it lasted “[a] second, half a second.” After Respondent blocked K.W.’s path, K.W. stepped back and put her head down. Ms. Taylor testified that K.W. was visibly upset and crying. Ms. Taylor immediately told K.W. to leave the room and go directly to the assistant principal’s office. Respondent’s supervisor, Principal Lux, acknowledged at the final hearing that there is no written directive or School Board policy which forbids a teacher from blocking the path of a student. Principal Lux further testified that he has never “disciplined a teacher in the past for blocking the path of students and not letting the student go wherever they want,” and that he is unaware of any circumstance in his 15 years with the School Board in which the School Board has disciplined an employee for blocking the path of a student. The persuasive and credible evidence adduced at hearing demonstrates that there was, at most, very slight physical contact between K.W. and Respondent as Respondent attempted to block K.W.’s path of travel and re-direct her to her newly assigned seat in the front of the classroom. Respondent did not intend to make physical contact with K.W., and the physical contact between Respondent and K.W. was minor, inadvertent, and lasted no more than one second. The evidence does not establish that Respondent pressed his body against K.W., as alleged in the Notice of Specific Charges.2/ At no time did Respondent grab, push, shove, punch or place his hands on K.W. in any way. Respondent was justified and acted in an appropriate manner in blocking K.W.’s path in the manner that he did, which was in an effort to re-direct K.W. to her newly assigned seat. On March 20, 2014, Respondent was advised of an investigation with regard to the March 18, 2014, incident involving K.W. On that date, Respondent was specifically advised by his supervisor, Principal Lux, in a letter: You are prohibited from contacting any complainant(s) and/or witness(es), with the intent to interfere with the investigation of the above listed allegation(s). Subsequent to Respondent’s receipt of this directive, Respondent contacted Ms. Taylor and advised her that he was the subject of an investigation regarding the March 18, 2014, incident involving K.W. Respondent showed Ms. Taylor the letter, but he did not attempt to influence her in any way. Respondent did not violate the directive of Principal Lux, because Respondent did not contact Ms. Taylor “with the intent to interfere with the investigation.” In sum, the evidence at hearing failed to show that Respondent’s conduct with regard to the incident in the classroom on March 18, 2014, involving K.W. constitutes misconduct in office, gross insubordination, or a violation of School Board policies. In sum, the evidence at hearing failed to show that Respondent violated Principal Lux’s directive not to contact any witnesses “with the intent to interfere with the investigation.” Accordingly, the School Board failed to prove that Respondent’s communications with Ms. Taylor constitutes gross insubordination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order rescinding the 15-day suspension of Respondent with back pay. DONE AND ENTERED this 17th day of November, 2014, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 17th day of November, 2014.
The Issue The issue to be determined in this case is whether Petitioner, Miami-Dade County School Board (School Board), had just cause to suspend Respondent, Harcourt I. Clark, for ten days without pay.
Findings Of Fact Based on the stipulations of the parties, and an evaluation of the testimony of witnesses and documentary evidence presented, the following facts are found: At all times material to this proceeding, Respondent was employed by the School Board as a school teacher within the School District of Miami-Dade County (School District). Respondent was a teacher in the School District, since approximately August of 1987 at various schools within the county, and also worked as a coach for 15 years of that tenure. At the time of the incident alleged in the Notice of Specific Charges, Respondent was teaching at Shenandoah Middle School. Respondent has a disciplinary history with the School Board. In 1995 (23 years ago), Respondent was the subject of an administrative review at the individual school level, as a result of a complaint that alleged, in part, that Respondent was allowing students to massage his shoulders in class, and for showing movies unrelated to the curriculum. As a result, Respondent received an informal conference and a letter of written directives. The written directives included an admonition that Respondent refrain from “allowing students to massage your shoulders, neck, etc.,” and “any other physical contact with students.” No further action with respect to this complaint was taken at the district level. On October 2013, Respondent showed up to work under the influence of alcohol. He returned to work only after completing a rehabilitation program under the supervision of the District’s Support Agency. In September 23, 2016, Respondent was given a written reprimand for using profanity in the classroom. On November 21, 2016, later that same year, Respondent received a written Absence from Worksite Directive for having six unauthorized absences in November 2016. The incident giving rise to the discipline in this case took place on February 28, 2017, prior to the administration of an FSA examination to a group of sixth-grade students. The Notice of Specific Charges alleged that Respondent “walked around the classroom and slapped several students in the back of the head, grabbed others by the neck, and physically squeezed at least one student’s hands.” Respondent was to administer the FSA test with another instructor, Teresa Gonzalez. Before the start of the examination, Respondent walked around the classroom between the rows of student desks, gathering book bags, making sure that students had pencils for the test, and encouraging students to do their best. As he walked around the classroom, Ms. Gonzalez observed Respondent touch the back of several students’ necks or shoulders in what she described as correcting their posture. She also observed him “squash” a student’s fingers together in what she described as a prayer position. She could not, however, hear what Mr. Clark was saying to students because she was in the front of the room and Mr. Clark was in the back. Ms. Gonzalez could not identify the students who Mr. Clark touched because they were not her students. She also did not recall any comments by students, but stated at hearing that their facial expressions indicated that they did not like being touched by him.1/ Ms. Gonzalez also confirmed her statement to School District investigators that she did not believe Mr. Clark was angry with the students, and that it looked like his actions were a way of communicating and playing with the students. However, she was disturbed by Mr. Clark’s actions and reported them to her assistant principal. Two students testified regarding the February 28, 2017, incident. One of them, R.M., testified that before the exam, Mr. Clark grabbed his hands and squished them, and grabbed at the back of his neck, and stated that Mr. Clark also slapped another student on the back of the head. He testified that he was not hurt in any way by the action, but the other student said “ow” in response to Mr. Clark’s action. R.M. did not believe that Mr. Clark was trying to motivate the students. Student A.F. recalled Mr. Clark tapping the top of a student’s head and that the student just laughed. A.F. believed that Mr. Clark may have patted some kids on the back of the head before the test, but that he believed it was done to encourage the students, much like a coach would. Mr. Clark testified that he merely tapped students on the back of the head while telling them to do well on their test. He viewed the tap as similar to what a principal or school board attendee might do at a graduation or where a student was receiving a certificate. It was encouragement and not malicious, and not meant to hurt anyone. Mr. Clark acknowledged that he had been warned about harmful touching, and would not engage in that type of conduct, saying, “I wouldn’t want anybody hitting my kid. And for no way [sic] I would lose my pension for 31 years hitting a kid like that. That’s not my character.” Mr. Clark did not recall grabbing R.M.’s hand and testified that he generally stayed away from R.M. because R.M. was rude in his classroom, and they did not get along. Whatever the relationship between R.M. and Mr. Clark, it appeared from R.M.’s demeanor at hearing that he did not care for Mr. Clark, and that may have colored his testimony somewhat. It is found that Mr. Clark tapped several students on the back of the head or neck and squeezed at least one student’s hands together before the administration of the test. The gestures were meant to be an encouragement for the students to do well during the examination, and were not any form of punishment. Mr. Clark’s actions, based on the evidence presented, did not constitute corporal punishment, and did not rise to the level of use of force, much less excessive or unreasonable use of force. The Notice of Specific Charges also alleges that Respondent “used profanity towards at least one student, said other inappropriate things and also used the term ‘these/deez nuts’ prior to the start of the exam.” The only evidence presented regarding profanity during hearing was a statement by Ms. Gonzalez that an unidentified student stated that Mr. Clark was “cursing her.” There was no testimony from that student, and no description that is not hearsay describing what was allegedly said. While Petitioner attempted to characterize the hearsay statement of the student as an excited utterance, there was no evidence presented upon which to predicate that characterization. With respect to the use of the term “deez nuts,” Ms. Gonzalez did not hear Mr. Clark use the term. Both students testified that he did so, in response to a question asked by a student. R.M. testified that the term is slang for “I don’t know,” or “whatever,” and may refer loosely to a young man’s genitalia. A.F. also stated that Mr. Clark used the term “deez nuts” as sort of a joke, and said that use of the term used to be popular as sort of a joke. Both students’ description of the term was somewhat tentative. Mr. Clark testified that he had heard the term before from the students, but would not use it. The more persuasive testimony is that Mr. Clark used the term in response to a student in the classroom, but there was no compelling testimony that the term is anything more than rap- influenced slang. No evidence was presented to indicate whether the students found the term offensive or inappropriate, considered it to be profane, or that any student felt embarrassed or humiliated by its use. Further, the evidence was not persuasive that Mr. Clark intended by his use of the term to refer to genitalia. No evidence was presented regarding any other “inappropriate” comment made by Mr. Clark.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board rescind its order suspending Respondent without pay, and reimburse him for the period for which he was not paid. DONE AND ENTERED this 13th day of August, 2018, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 August, 2018.
