Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that respondent be found guilty of incompetency and gross insubordination within the meaning of Subsection 231.36(4), Florida Statutes (1987) and that she be dismissed as an employee of the Board. DONE and RECOMMENDED this 10th day of February, 1989, at Tallahassee, Florida. D0NALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4576 Petitioner: 1. Covered in finding of fact 1. 2-23. Covered in finding of fact 3. 24. Covered in finding of fact 4. 25. Covered in finding of fact 6. 26. Covered in finding of fact 7. 27. Covered in finding of fact 8. 28. Covered in finding of fact 9. 29. Covered in finding of fact 10. 30. Covered in finding of fact 11. 31. Covered in finding of fact 12. 32. Covered in finding of fact 13. 33. Covered in finding of fact 14. 34. Covered in finding of fact 15. 35. Covered in finding of fact 16. 36. Covered in finding of fact 17. 37. Covered in finding of fact 5. 38. Covered in finding of fact 18. 39. Covered in finding of fact 19. 40. Covered in finding of fact 20. 41. Covered in finding of fact 21. 42. Covered in finding of fact 22. 43. Covered in finding of fact 23. 44. Covered in finding of fact 24. 45. Covered in finding of fact 25. 46. Covered in finding of fact 26. 47. Covered in finding of fact 27. 48. Covered in finding of fact 28. 49. Covered in finding of fact 29. 50. Covered in finding of fact 30. 51. Covered in finding of fact 31. 52. Covered in finding of fact 32. 53. Covered in finding of fact 33. 54. Covered in finding of fact 34. 55. Covered in finding of fact 35. 56. Covered in finding of fact 36. 57. Covered in finding of fact 37. 58. Covered in finding of fact 38. 59. Covered in finding of fact 39. 60. Covered in finding of fact 40. 61. Covered in finding of fact 41. 62. Covered in finding of fact 42. 63. Covered in finding of fact 43. 64. Covered in finding of fact 44. 65. Covered in finding of fact 45. 66. Covered in finding of fact 46. 67. Covered in finding of fact 47. 68. Covered in finding of fact 48. 69. Covered in finding of fact 49. Covered in numerous findings of fact. Covered in finding of fact 5. Covered in numerous findings of fact. Covered in finding of fact 58. 74.-76. Rejected as being unnecessary. Partially covered in finding of fact 53. The remainder has been rejected as being argument or irrelevant. Rejected as being argument of counsel. COPIES FURNISHED: Madelyn P. Schere, Esquire 1450 Northeast Second Avenue Suite 301 Miami, Florida 33132 H. T. Smith, Esquire 1017 Northwest Ninth Court Miami, Florida 33136 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Karen B. Wilde, Executive Director Education Practices Commission Room 125, Knott Building Tallahassee, Florida 32399
The Issue Whether just cause exists to uphold the dismissal of Tirso Valls ("Respondent") from employment with the Miami-Dade County School Board ("School Board" or "Petitioner").
Findings Of Fact Based on the record and the evidence presented, the undersigned makes the following findings of fact: At all times relevant to this case, Petitioner was charged with the duty to operate, control, and supervise all public schools within the school district of Miami-Dade County, Florida, pursuant to Article IX, § 4(b), Florida Constitution, and section 1012.23, Florida Statutes. Respondent was employed as a physical education teacher at Cutler Ridge Elementary School ("CRES"). Respondent first arrived at the school in August 2017 at the start of the 2017/2018 school year. Shortly after his arrival, Respondent began exhibiting odd behavior, which was noticed by the administration and other staff members. The principal, Wright-Mullings, found that it was difficult to communicate with Respondent and he appeared disheveled in his dress and appearance at times. Early in the 2017/2018 school year, fifth-grade students also began complaining about Respondent's behavior. In response, three separate investigations were initiated into Respondent's conduct based on specific reports by several students. The first concerned allegations that Respondent was making insulting comments, screaming, and poking students; the second concerned Respondent allegedly snatching a jump rope from a female student, injuring her hand; and the third allegation concerned Respondent referring to a female student in a demeaning manner and calling her derogatory names. Pet. Exs. 3-5. These allegations gave the principal cause for concern because she wanted students and their parents to feel comfortable with teachers at the school. She also felt that these allegations raised safety concerns. After investigation by the school police, probable cause for three separate violations of School Board Policy 3210, Standards of Ethical Conduct, were found.2/ Taking exception to the investigative results, Respondent requested that a supplemental investigation be conducted. This was done. However, the outcomes of the initial investigations did not change. Pet. Exs. 6 and 7. Respondent was not formally disciplined for the allegations or findings made in these investigations, since the disciplinary process was never fully completed. However, as a result of these investigations, Respondent was removed from CRES and placed in an alternative assignment at the regional office on September 1, 2017, followed by placement at the District's Federal and State Compliance Office on September 19, 2017. The principal remained concerned that despite completion of the three investigations and disciplinary process, the safety of the students could still be in jeopardy if Respondent returned to the school. Suffice it to say, that in addition to these three investigations, multiple and repeated instances of odd and bizarre behavior by Respondent occurred at school and around the students he was charged to protect and educate. These are outlined in detail in Petitioner's Exhibit 14. They occurred primarily from August 18 through September 1, 2017. Some of the odd and abnormal behavior by Respondent was witnessed by the principal herself. Other behavior was reported by staff members and supplemented or explained what the principal had seen. For several months, and during the course of the investigations, the principal had expressed her ongoing concerns about Respondent to Pina, district director of the Office of Professional Standards. They also discussed the need to refer Respondent for a medical fitness for duty evaluation. Pina shared the principal's concerns regarding Respondent's odd behavior and conduct. This was based, in part, on her own observations of Respondent. She too was concerned for the safety of the students. When Pina brought the results of the investigations regarding Respondent before the Disciplinary Review Team for review and action, it was decided that discipline would be deferred while the School Board proceeded with a fitness for duty evaluation of Respondent. Pina instructed the principal to monitor and record Respondent's behaviors and maintain the results in writing. Wright-Mullings contacted her staff and had some of them write statements regarding their observations of Respondent. Pet. Exs. 10-13. Wright-Mullings compiled her own written summary containing her observations of Respondent's conduct, as well as conduct and actions by Respondent that her staff had observed and reported. Pet. Ex. 14. These observations by her and the staff included, among other things, Respondent's inability to understand directives and to communicate; repeatedly asking the same questions or asking for clarity on points made to him; the inability to understand sample lesson plans; a disheveled appearance that included holes in his shirts and body odor; suppressed anger when questioned about uncompleted tasks; illogical explanations concerning his actions; a nervous laugh; odd facial expressions; staring blankly at coworkers; speaking very close to people in their personal space and becoming agitated. These behaviors and the incidents giving rise to the investigations were carefully evaluated, weighed, and considered by Wright-Mullings. They gave the principal reasonable cause for concern, and she was uneasy with the prospect of Respondent coming back to work at CRES. Other teachers and staff members at CRES also expressed discomfort regarding Respondent's odd and abnormal behaviors.3/ Pursuant to School Board Policy 3161--Fitness for Duty--and Article XXI, Section (2)(F), of the Collective Bargaining Agreement between the United Teachers of Dade Labor Union and the School Board ("UTD Contract"), Pina held a Conference for the Record ("CFR") with Respondent on April 11, 2018, to address concerns about his fitness for duty. Pet. Ex. 19. At the conference, Respondent was advised of the troubling nature of his behavior and conduct, and the need of the School Board to do a fitness for duty evaluation of him. Pet. Ex. 19. On April 16, 2018, Respondent was again advised of the basis for a fitness for duty evaluation in writing. He signed a release to have the results of that evaluation sent to Pina. Pet. Exs. 16 and 17. As permitted by School Board policy, Respondent reviewed and selected a licensed psychologist from a list provided to him. Thereafter, a request for an evaluation of Respondent was sent to the doctor he selected, Dr. Theodora "Teddy" Tarr, on April 17, 2018. Pet. Exs. 18 and 19. Dr. Tarr had two clinical sessions with Respondent. She also reviewed Respondent's work history at Miami-Dade County, as well as Respondent's prior written responses to the complaints at the elementary school. Respondent also completed an intake form and a self-inventory on certain issues that were of concern to the doctor, both of which were reviewed and considered by her. Pet. Ex. 20, p. 57. After an examination and testing of Respondent, Dr. Tarr prepared a confidential assessment report. In essence, her report concluded that Respondent was not fit for duty as a teacher. More specifically, the report from Dr. Tarr stated: Refer Mr. T.V. for therapy. He needs social skill training and further assessment. He is incapable or unwilling to correct negative behaviors evidencing poor communication skills for self-control. It is not advisable he return to a teaching environment without identifying inappropriate behaviors and correct boundary, communication and social skill issues. Mr. T.V. is not qualified to return to his position in the MDC School System due to poor insight, poor boundaries, difficulty communicating, and confusing body language. (Emphasis added). Pet. Ex. 20, p. 57. Dr. Tarr provided the report to Pina. Subsequently, Pina held another conference with Respondent on April 30, 2018. At the conference, it was explained to Respondent that he had the option to seek a second fitness medical opinion pursuant to the UTD Contract, and that he could take a medical leave of absence, resign, or retire. Pet. Ex. 21. Respondent was required to give Pina his decision by May 3, 2018. Respondent gave no response by the May 3, 2018, deadline. He also never sought a second medical opinion despite having the rest of the school year and summer months to do so. On August 1, 2018, Pina held another meeting with Respondent and advised him that since he had not exercised any of the options available to him, and based on the doctor's report and his conduct and actions to date, the School Board would be dismissing him at the School Board meeting of August 15, 2018. Pet. Exs. 22 and 23. On August 16, 2018, Respondent was sent a final memorandum informing him that he had been dismissed by the School Board. Pet. Ex. 25.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Miami-Dade County School Board upholding Tirso Valls' dismissal from employment with the School Board. DONE AND ENTERED this 12th day of March, 2019, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 12th day of March, 2019.
The Issue Whether Maria E. Tuma, a teacher in the Dade County School System, has been grossly insubordinate or has willfully neglected her duties as a teacher so that she should be dismissed from employment by the School Board of Dade County?
Findings Of Fact The Parties Petitioner, The School Board of Dade County, is the authority that operates, controls, and supervises all free public schools in the Dade County School District, "[i]n accordance with the provisions of s. (4) (b) of Article IX of the State Constitution ...". Section 230.03(2), F.S. Respondent, Maria E. Tuma has been employed by the School Board of Dade County for 24 years. She presently holds a continuing contract of employment. Since 1983, Ms. Tuma has been employed at Naranja Elementary School, Air Base Elementary School, Palm Lakes Elementary School and Ojus Elementary School. Ms. Tuma possesses many of the talents of a good teacher as evidenced by the myriad awards her art students have won and the numerous commendations for teaching art she has received over the years. But beginning in 1983 with her employment at Naranja and until and through a leave of absence commenced in 1995 while employed at Ojus, Ms. Tuma's employment history has been chronically troubled. Naranja On October 31, 1983, Ms. Maedon Bullard, Principal of Naranja Elementary School issued a notice to Ms. Tuma, who was then employed as an art teacher at the school. The notice reads, in part, A parent brought to my attention that you distributed pocket Bibles to some students this date, October 31. * * * This is in violation of School Board Policy (citations omitted). I urge you to review this policy and to adhere strictly to its contents. THIS IS THE SECOND TIME YOU HAVE BEEN GIVEN THIS NOTICE. Petitioner's Exhibit No. 3. On the same day, October 31, 1983, Mrs. Bullard gave Ms. Tuma a copy of a memorandum with attachment on the subject of "Religion in the Public Schools." Dated October 25, 1977, the memorandum is from Ralph D. Turlington, Commissioner of Education in the State of Florida. The essence of the memorandum is a warning to school districts and teachers not to create an unconstitutional preference for one religion over another. With regard to the distribution of Bibles, the memorandum states, The distribution of free Bibles to children in the public schools tends to impair the rights of children to be free from governmental action which discriminates against the free exercise of religious belief. When in practice only a particular kind of religious literature is in fact distributed, "the school board's use of the school system as a means of distribution amounts to its placing, at least in eyes of children and perhaps their parents, its stamp of approval upon [that version], thus creating an unconstitutional preference for one religion over another." (citations omitted.) Petitioner's Ex. No. 2, p. 4 and 5. The memorandum further indicated that the Commissioner would not condone any violation of the law. Air Base On May 13, 1985, while Ms. Tuma was a teacher at Air Base Elementary School, a conference-on-the-record was held. In addition to others, present were Ms. Tuma and the school's principal, Mr. Turano. The conference was called because of complaints that Ms. Tuma had made statements to a student about praying and having faith. Ms. Tuma was instructed that it is a violation of federal law, school board policy and students' civil rights to engage in religious activity in the classroom. Ms. Tuma was warned that if her religious activity in the classroom continued, she could be cited for gross insubordination and could lose her teacher certification. Ms. Tuma promised to abide by school board policies in the future. Palm Lakes: Religion in the Classroom Again On October 24, 1985, it was reported that Ms. Tuma, then an art teacher at Palm Lakes Elementary School, hit a student on the neck with a pencil and cut a lock of hair with a scissors as discipline for fighting with another student. The complaint was assigned Case No. P-2607 by the Dade County Public School's Special Investigative Unit ("SIU,") and investigated. The investigator for the Special Investigative Unit reached the conclusion that the complaint was substantiated. On October 31, 1985, a complaint conference with Ms. Tuma was conducted by Palm Lakes Principal Steven Lovelass. In addition to the complaint about striking the student with a pencil and cutting his hair, other complaints were discussed at the conference. These included that Ms. Tuma discussed the Bible during class, made references to the devil and made references to her church. On December 4, 1985, Ms. Tuma was asked by her employer to undergo a medical examination to determine her "fitness to properly carry out [her] assigned duties." Petitioner's Ex. No. 8. One week later, Ms. Tuma was evaluated by Charles C. Barton, M.D., a psychiatrist. Dr. Barton reported that Ms. Tuma was religiously preoccupied, suffered from impairment of insight and judgment and recommended intervention and possible medication. On December 23, 1985, Ms. Tuma, on her own initiative, was seen by another psychiatrist, Francisco A. Campos, M.D. She related to Dr. Campos that "she does not feel that she needs to see a psychiatrist, but feels that she has to do it in order for her to keep her job." Petitioner's Ex. No. 10. Dr. Campos found her to be preoccupied with religious material and in need of treatment directed toward improving her ego strength and coping skills. Dr. Campos' written opinion was forwarded to Dr. Patrick Gray, then the Executive Director of the School Board's Office of Professional Standards. In the meantime, on December 10, 1986, a conference-on-the-record was held with Ms. Tuma in the office of the Superintendent for the North Area of Dade County. In attendance were Ms. Tuma; her principal, Mr. Lovelass; Superintendent Marvin Weiner; Ms. Doretha Mingo, Area Director; and Supervisor for the Office of Professional Standards, Mr. James E. Monroe. The conference was held to discuss, among other problems, the report in SIU Case No. P-2607 and Ms. Tuma's "continual acts of refusal to comply with both written and verbal directives to cease and desist from instructing (teaching) your students about your religious beliefs, to include issuing Bibles and other religious materials to your students." Petitioner's Ex. No. 12. On January 28, 1986, the principal at Palm Lakes, Mr. Lovelass, forwarded his recommendation in SIU Case No. P-2607 to the Area Superintendent for the North Area of Dade County. On the bases of the substantiation of the complaint after investigation, and Ms. Tuma's statement at the conference-for- the-record that she could not comply with all of the established School Board rules because of personal and religious views, Mr. Lovelass "strongly" recommended that Ms. Tuma, "be separated from employment with the Dade County Public Schools for [among others] misconduct in office and gross insubordination." Petitioner's Ex. No. 11. On February 4, 1986, a memorandum was written to Ms. Tuma by James E. Monroe, Supervisor for the Office of Professional Standards. The memorandum summarized the conference-on-the-record held the previous December 10. Under the heading "ACTION TO BE TAKEN," Mr. Monroe wrote the following to Ms. Tuma: During the conference Mr. Weiner expressed concern relative to your continual failure to comply with administrative directives. He expressed further concern relative to its adverse impact upon your effectiveness as a classroom teacher as reported, by the principal. Mr. Weiner stated that upon receipt of the principal's recommendation for disciplinary action, he would forward his recommendation to the Superintendent of Schools. You were informed that your future employment would be determined upon a review of the facts presented in this conference. You were also informed that the recommen- dations made by the Principal and Area Super- intendent will be reviewed by the Superinten- dent of Schools; approval of the recommended discipline would necessitate action by The School Board of Dade County, Florida. You were informed of the likelihood of this recommendation being presented to the School Board at its next regularly scheduled meeting. Petitioner's Ex. No. 12. On March 7, 1986, Dr. Gray, Assistant Superintendent for the School Board's Office of Professional Standards, by letter to Ms. Tuma, directed her to cease and desist all proselytizing of religion in the classroom. She was further directed in the letter: not to advise students with regard to powers of the devil or hell; not to read from the Bible, advocate the Bible, advocate membership in her church; and, not to make disparaging remarks against any group of people on the basis of race, religion, sex or national origin. The admonishment was repeated in the letter with a warning in unmistakable terms, "I repeat, you are specifically directed to cease any of the above activities; your failure to do so will be con[si]dered to be misconduct in office and gross insubordination, and will subject you to severe disciplinary action by The School Board of Dade County, Florida." Petitioner's Ex. No. 13. On March 20, 1986, Ms. Tuma received a document under the signature of Mr. Lovelass denominated, "Record of Observed Deficiencies/Prescription for Performance Improvement." Petitioner's Ex. No. 14. The deficiencies listed in the document related to non-compliance with School Board rules and policies and provisions of the labor contract that resulted from collective bargaining conducted between the School Board and the teachers' union. Deficiencies also related to non-compliance with published school-site rules and policies consistent with School Board rules and provisions of the contract. The document also provided a prescription or directive. Part of the prescription was for Ms. Tuma to review the Code of Ethics and Principles of Education Profession found in Chapter 6B-1 of the Florida Administrative Code. Another part was to take a "School Law Course," which Ms. Tuma was allowed to take during the summer of 1986. On May 28, 1986, a conference-on-the-record was conducted by Mr. Lovelass with Ms. Tuma to discuss her prescription and employment status. Ms. Tuma was directed to complete the prescription and comply with all directives. Further, she was warned that her upcoming evaluation and recommendation as to future employment were contingent upon "continued professional efforts in remediating all ... prescriptive activities by [the fall of 1986]. In Ms. Tuma's annual evaluation for the 1985/86 school year, her overall summary rating was "unacceptable." In the category of professional responsibility, too, she was rated "unacceptable." Nonetheless, she was recommended for employment to give her the opportunity to remediate her performance deficiencies through completion of the prescription. Due to the unacceptable rating, Ms. Tuma did not receive the step increase in her salary to which she was otherwise entitled. Ultimately, Ms. Tuma was given until October, 1986 to complete the prescription. She was determined in December of 1986 to have done so successfully. In 1989, Nicholas Rinaldi became principal at Palm Lakes. He began to encounter problems with Ms. Tuma in March of 1992. These included distribution of Bibles at school, formation of a secret club of students, solicitation of church membership on school time and intimidation of students. On March 3, 1992, Mr. Rinaldi notified Ms. Tuma of a conference-on- the-record to discuss these problems as well as distribution of a religious letter to a faculty member and inappropriate language to both students and staff. Ms. Tuma responded to the notification with a "Reply of Allegations," dated March 3, 1992. While Ms. Tuma denied or offered explanations for most of the allegations, she admitted giving Bibles to students with their parent's permission. She also admitted giving the letter to a teacher. About this incident, Ms. Tuma wrote in the response that, believing the teacher to be a Christian, she took the liberty to: A. Admonish her, B. Requested prayer for her son to the Pastor and 4 deacons and an elder 'friend' of her, C. I tried to inform some of her friends about the Love of Jesus. But she got real mad at me for: A., B., and C. I asked her to forgive me after I saw that she got mad, but evidently, she hasn't (sic)! In fact one of the 3 Scriptures I wrote in the letter was 'Forgive 70 x's 7" Matthews 18:22 Petitioner's Ex. "B" attached to Deposition of Nicholas Rinaldi, Petitioner's Ex. No. 1. Ms. Tuma's written response concludes, Id. I wish to see the day when we can truly and freely exercise FREEDOM OF RELIGION in our Public Schools. After all it was the Holy Bible the first book used to teach Reading in the Public Schools of America. And we better return to the BASICS or continue to perish! On March 6, 1992, the conference was held with Ms. Tuma, Mr. Rinaldi and Angela Santos, assistant principal, present. Mr. Rinaldi opened the conference with reference to previous violations of Board policy with which Ms. Tuma had been cited. He also quoted from school board officials who had dealt with Ms. Tuma before on similar issues in order to impress upon her that the conference was not dealing with an isolated incident but rather a pattern. Again, Ms. Tuma admitted distributing Bibles and sending the letter with religious references to a faculty member. On March 10, 1992, Mr. Rinaldi issued a summary of the conference-on- the-record in a memorandum to Ms. Tuma. The memorandum recited Mr. Rinaldi's opening of the conference with a review of prior incidents including the complaint conference conducted by Mr. Lovelass in October of 1985 concerning Ms. Tuma's discussion of religion in art class. Ms. Tuma wrote back to Mr. Rinaldi on her copy of his March 10, 1992, memo, "All I said was: 'The devil came to kill, steal & destroy & God came to give us life abundantly.' John 10:10". On March 20, 1992, Mr. Rinaldi provided Ms. Tuma with additional copies of school board rules discussed at the earlier conference. On April 30, 1992, Mr. Rinaldi conducted his second conference-on-the- record with Ms. Tuma to discuss her posting of religious posters on the bulletin boards and doors of her classroom. The previous conferences-on-the-record in February, March and October of 1986, and Mr. Rinaldi's earlier conference that year were discussed with Ms. Tuma as well as a reprimand in October of 1983 for distribution of Bibles. A memorandum summarizing the conference received by Ms. Tuma on May 5, 1992, concluded: In summary, I want to inform you that you have not complied with previous admin- istrative directives to cease all mention of religion at work. Continued violations and noncompliance will result in further disciplinary actions. Exhibit "G," attached to Petitioner's Ex. No. 1. In the meantime, on April 23, 1992, Dr. Joyce Annunziata, Director of the Office Professional Standards for the School Board, notified Ms. Tuma of a conference-on-the-record to be conducted on May 7, 1992, with regard to Ms. Tuma's violations of School Board policies concerning religious references, refusal to participate in a program of assistance, fitness to perform assigned duties, and her future employment status. With regard to the refusal to participate in a program of assistance, Ms. Tuma wrote on her copy of the notice, "Mr. Rinaldi offered it & I told him TWICE I didn't need it! THIS IS FOR PSYCHOLOGIST. I don't need or want to go. I don't believe in them!" Petitioner's Ex. No. 21. The conference was conducted as scheduled. Dr. Annunziata, in conformance with the applicable labor contract that allows the board to obtain a medical evaluation when performance appears to be affected by a teacher's mental health, directed Ms. Tuma to select a physician for an evaluation. Ms. Tuma, despite the directive, refused. On the same date as the conference, May 7, 1992, Ms. Tuma was issued a memorandum from Dr. Gray, Assistant Superintendent, to serve as a written basis, as called for by the applicable labor contract, for a required medical examination. The memorandum directed Ms. Tuma to select a physician from an attached list and to communicate that choice to Dr. Annunziata. Ms. Tuma continued to refuse to select a physician to conduct the evaluation. On June 18, 1992, Mr. Rinaldi conducted a conference-on-the-record to discuss with Ms. Tuma violations of professional responsibilities, noncompliance with directives and her annual evaluation. She was issued a prescription which included reading and summarizing applicable School Board Rules. In her annual evaluation for the 1991-92 school year, Ms. Tuma was rated "unacceptable" overall and in the category of professional responsibilities. As a result, for the second time in her career, she did not receive the salary "step" increase that she was due by virtue of the length of her employment with the School Board. In August of 1992, the School Board contemplated a suspension of Ms. Tuma and initiation of dismissal proceedings against her for gross insubordination and misconduct in office. Instead, at Ms. Tuma's request, the School Board allowed her to take a leave of office without pay from August 26, 1992 through December 30 of the same year to seek medical treatment. The School Board also referred her to the Employee Assistance Program (EAP). This office provides assistance to School Board employees having problems affecting job performance. As a condition of employment, Ms. Tuma was directed to undergo the medical evaluation and participate in a counseling/therapy program monitored by EAP during the leave of absence. In order to return to work she would have to receive medical clearance. She was also advised that upon return to the work site, any recurrence of the previous problems would lead to a termination of employment. On August 11, 1992, a second "Written Basis for Required Medical Examination," was issued to Ms. Tuma by Assistant Superintendent Gray. Ms. Tuma selected Dr. Anastasio Castiello to conduct the evaluation. The evaluation was conducted; no pathology was diagnosed but counseling was recommended by Dr. Castiello. Ms. Tuma's participation in EAP proceeded without incident. Following a delay in seeing Dr. Castiello in December in order to obtain clearance to return to work, Ms. Tuma was seen by Dr. Castiello in January of 1993. Dr. Castiello continued to recommend therapy for Ms. Tuma but he cleared her to return to work. Conditions of employment were attached to Ms. Tuma's return. Her involvement with a program of therapy was to be monitored. She was required to adhere to site directives, policy, prescriptive directives and the Code of Ethics. She was warned again that recurrence of behavior with regard to religion in the classroom would be considered an act of insubordination and would incur discipline. Ms. Tuma was placed at Ojus Elementary effective January 27, 1993. Ojus Failure to Continue Therapy Ms. Tuma finished the 1992/93 school year at Ojus. In June of 1993, it was determined that she had remediated the performance deficiencies listed on her 1991/92 evaluation. On September 22, 1993, however, EAP reported that it had no information that Ms. Tuma was participating in counseling and therapy. Four months later, Dr. Annunziata informed Ms. Tuma in writing that she was not in compliance with the directive that she participate in a program of counseling and therapy. Dr. Annunziata had learned that Ms. Tuma had been to only three sessions during the entire year of 1993. These sessions were with Dr. Stephan Tchividjian. In February of 1994, Dr. Tchividjian wrote Dr. Annunziata. He stated that the last time he had seen Ms. Tuma was in March of 1993. He relayed his opinion that Ms. Tuma needed to continue in therapy for her issues with religion. Ms. Tuma was referred again to the Employee Assistance Program. On March 1, 1994, Dr. Friedman, the principal at Ojus, conducted a conference-on-the-record with Ms. Tuma to discuss noncompliance with a site directive to modify her schedule for a field day and her failure to report when called to the office. Ms. Tuma was advised that her future employment status depended on compliance with school site directives. Once again, she was warned that noncompliance would be considered misconduct in office and insubordination that would subject her to disciplinary action. Personal Communication and Gifts for the Principal Ms. Tuma was also given another directive and a reminder. She was directed not to communicate with Dr. Friedman in writing about any matter unless it was school-related. She was reminded that Dr. Friedman was not allowed to receive gifts that exceed $25 in value. The directive and reminder were given because Dr. Friedman had received from Ms. Tuma numerous gifts as well as invitations to go on vacation and attend functions with her. Dr. Friedman summarized some of the communications and gift-giving as follows: ... Ms. Tuma would write me an inordinate amount of personal letters and cards. I have files of them. She would allege that I had eyes beautiful like Jesus. Gorgeous. She would allege that she wanted to take many photographs of me, that she wanted to do a painting of me and my daughters, that I would have to pose for her to do that. She would take pictures of me, and she would stand in the hallway and look at my pictures. Now that would send off signals to other people. Now she would just shower me with all kinds of gifts. This was just something that was extreme. (Tr. 141.) On March 7, 1994, Dr. Annunziata conducted a conference-on-the-record with Ms. Tuma to discuss her noncompliance with the directive to attend counseling and therapy, her medical fitness to perform assigned duties, and her future employment status. In addition to Dr. Annunziata and Ms. Tuma, Dr. Freidman and Dr. Joseph Burke, the Director of Region II for the School Board, were present. Ms. Tuma was directed to submit to another medical evaluation, this one by Dr. Ronald Bergman. Ms. Tuma complied; the evaluation was performed. Ms. Tuma was also directed to continue her program of counseling and therapy and to keep EAP informed of compliance. From April to September of 1994, contrary to the clear directive the previous March, Ms. Tuma continued to send Dr. Freidman presents and personal communications. For example, in September, Ms. Tuma, while on vacation in Greece, sent Dr. Friedman a post card and a birthday card. The birthday card contains the following hand-written message: May God Himself enlighten you fully & direct your paths. May He be your guide Savior & Friend ... May He bless you and keep you, May He let His face shine upon you & give you Peace - I HOPE you have a VISION of HIM & you can see for your self what I said of your eyes is real ... Let us aim to look like HIM in many of His ways: His Gentle- ness, His kindness & His LOVE! & know that in spite of them and in spite of you SE HAGA POPOLI! Petitioner's Ex. No. 43. "Se haga popoli," is Greek for "I love you a lot." The card is entirely personal in nature and does not relate at all to school matters. Parental Complaints and Continued Refusal of Therapy In October, 1994, Dr. Friedman received the first in a sequence of parental and staff complaints about Ms. Tuma's professional demeanor and negative comments about staff members. Furthermore, on October 4, 1994, Dr. Gray advised Ms. Tuma that she was not in compliance with the directive that she participate in a program of counseling/therapy. She was directed to begin a program of therapy promptly. She was directed again to adhere strictly to all prior directives. On October 7, 1994, Ms. Tuma wrote to Dr. Gray, "I categorically refuse to go to any psychologist because I don't believe in them." Petitioner's Ex. No. 44. On October 18, 1994, Dr. Gray, in response to the October 7 missive, advised Ms. Tuma in writing that her employment was conditioned upon compliance with a program of medical therapy. His letter ended, "If you do not initiate confirmed compliance within ten day of receipt of this letter, your employment is subject to termination." Petitioner's Ex. No. 45. On November 28, 1994, Ms. Tuma began treatment with Dr. Doris Amaya. More Meetings and Conferences On December 8, 1994, an informal meeting was held between Dr. Friedman and Ms. Tuma concerning the taking of attendance in art class, alteration of the children's art work by Ms. Tuma, and the need to treat children's self-esteem with sensitivity. During the meeting, Ms. Tuma called Dr. Friedman a liar. The meeting was memorialized in a memorandum to Dr. Gray from Dr. Friedman, in which Dr. Friedman wrote, Ms. Tuma continues to demonstrate a pattern of flagrant disrespect toward administrative authority. Please advise ... as to what supportive action I may expect from district level as to this accelerating problem. Petitioner' Ex. No. 48. On March 1, 1995, at a parent/teacher conference concerning a grade of "C" Ms. Tuma gave to the child of the parents present, Ms. Tuma was asked to explain the grade when the child had received "A's" and "B's" in all of his other classes. The parents complained to Dr. Friedman that Ms. Tuma advised them that "all of the teachers and faculty at Ojus Elementary School were after her, were against her, and involved in some conspiratorial way. She said that my children's grades were falsely stated as good in their classes when in fact, they were really 'bad' as reflected by her grades." Petitioner's Ex. No. 54, Attachment "C." The complaint went on to relay that the conference ended with Ms. Tuma accusing one of the parents of being in conspiracy with the faculty or being "some type of liar." Id. On March 6, 1995, Dr. Freidman conducted a parent/teacher conference with Ms. Tuma and the parent who had complained about Ms. Tuma's bizarre behavior at his March 1, 1996 conference with her. During this conference, Ms. Tuma again stated that some of the teachers at the school were against her and had given false grades to students while her grade of the student in question was correct. She also called the parent a "liar." On March 8, 1995, another parent/teacher conference of Ms. Tuma's was held in Dr. Freidman's presence. This conference involved a parent different from the conference two days earlier. The complaint in this case was that Ms. Tuma had given a grade to a student based on her conduct rather than her work. It became apparent that Ms. Tuma, indeed, was lowering students' work grades for misconduct. The next day, another a parent/teacher conference was held again with Dr. Freidman present. This conference concerned yet another parent and a third child. The conference was held because the child, an avid art student, was not enjoying Ms. Tuma's class. Again, it became apparent that Ms. Tuma was lowering grades for work due to perceived misconduct. Dr. Freidman apprised Ms. Tuma that this was contrary to School Board policy. In response, Ms. Tuma wrote on a summary of the conference which she was given, "Dr. Freidman has a personal vendetta against me, because I've Blown the Whistle about her & her favourite friends there; Dr. Friedman embraced the Negativism of these parents!" She also wrote, "The councelor (sic) told me: 'Don't be surprised if she: (Friedman); set these parents up in the telephone to say certain things against you." Petitioner's Ex. No. 51. On March 27, 1995, Dr. Freidman conducted a conference-on-the-record with Ms. Tuma to discuss her professional responsibilities, performance to date, and her future employment status. Also discussed were her unprofessional conduct during parent conferences, her noncompliance with the School Board's grading policy, accusations against faculty members, and violations of the Code of Ethics and the Principles of Professional Conduct in the Education Profession. Ms. Tuma was directed to read the section of the board's rules which indicate that academic and effort grades are independent of conduct grades. The March 1995 Prescription and Outright Refusal to Perform On March 29, 1995, Ms. Tuma was issued a "Record of Observed Deficiencies" with a "Prescription for Performance Improvement" for the category of professional responsibilities. Deficiencies cited in the document included: noncompliance with the grading policies found in School Board rules; violation of Rule 6B-1.006, Florida Administrative Code, by intentionally making false statements about colleagues to parents and staff; noncompliance with the labor contract; and noncompliance with school site rules and policies. While considerably more detailed, in summary, the plan activities under the prescription required Ms. Tuma to read and familiarize herself with the Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida; read and summarize cited board rules on grading policy; read and summarize the 1994-95 School Improvement Plan Strategy to Improve Conduct; and read a handout related to effective attitudes for teachers and develop a parent involvement plan using guidelines in the handout. Ms. Tuma did not agree that she needed to complete the prescription, felt the prescription was unfair, and refused to make any effort to perform it. On March 30, 1995, Dr. Friedman directed Ms. Tuma to meet the next day to discuss a segment of the prescription. Ms. Tuma advised the principal that she would not attend the meeting. Dr. Friedman told her non-attendance would be gross insubordination. The next day, the day before spring break, Ms. Tuma took a sick leave day. Following the break, more than a week later, Ms. Tuma met with Dr. Friedman. At the meeting, she informed Dr. Friedman that she would not perform the prescription. Dr. Friedman regarded Ms. Tuma's refusal as very serious not only because it constituted, in her view, gross insubordination, but because the incidents leading to the prescription had involved the welfare of Ms. Tuma's students. Dr. Friedman requested that Ms. Tuma be reassigned to another school or that she be dismissed as a teacher. When presented with a document showing an alternative assignment, Ms. Tuma, contrary to district-wide procedure, refused to sign it. Ms. Louise Harms, then director of OPS, conducted a conference-on-the- record with Ms. Tuma to discuss the matters which had occurred at Ojus, including her refusal to perform the prescription, and Dr. Friedman's recommendation that she be dismissed as a teacher. At the conference, Ms. Harms had available to her a fax from Ms. Tuma's attorney advising that Ms. Tuma would not perform the prescription. As the conference got underway, Ms. Tuma reiterated her refusal to follow the prescription. She maintained this position for an extended period of time during the conference which lasted two hours. Present at the conference was Dr. Joseph Burke, Personnel Director of the Dade County Public Schools, and a region director. Toward the end of the conference, Dr. Burke informed Ms. Tuma that it was his recommendation that she be dismissed given her position of refusing to perform the prescription. In response, Ms. Tuma asked what would happen if she were to follow the prescription. The memorandum summarizing the conference shows Dr. Burke's reply to have been: The gross insubordination has occurred. You refused to do the Prescription. We can't change that fact. You are now saying that you are now willing to do what you blatantly refused to do even at the onset of this conference. I have a feeling that your change of mind is directly related to the recommendation for dismissal. Petitioner's Ex. No. 58, p. 12. Ms. Tuma then asked about the possibility of taking a leave of absence. Dr. Burke responded to Ms. Tuma that she would not be able to complete the prescription while on leave and asked her what she was requesting: to remain on faculty at Ojus and perform the prescription or to take leave during which time she would not be allowed to complete it. Ms. Tuma requested leave. The Leave of Absence It was decided that Ms. Tuma's request for leave would be granted from April 17, 1995 through January 29, 1996. Ms. Tuma's evaluation for the 1994/95 school year rated her, for the third time, "unacceptable" both overall and in the category of professional responsibilities. She was not recommended for employment. In July and August of 1995, while on leave, Ms. Tuma wrote to Dr. Friedman despite the directive not to communicate with her personally. While the letters relate marginally to a school-related matter, that is, whether Dr. Friedman should help her return to the school, they are largely personal communications. For example, the July letter states, "I do wish we could go skiing in the winter, snorkel in the summer, go to Greece in the Spring or fall." Petitioner's Ex. No. 63. The letter concludes with a post-script, "Please let me know; don't be so snobbish, hard and un-forgiving: Could we meet you for lunch one day?, me & mom - we'll treat you. Maybe Olive Garden or so ... Please?, then we'll talk a little bit more. Thank you." Id. On August 16, 1995, Dr. Gray met informally with Ms. Tuma and her attorney. In the meantime, Ms. Tuma requested that her leave be terminated and she be allowed to return to Ojus on the upcoming November 6. At the meeting, Ms. Tuma advanced the date of her request to terminate leave to the start of the school year. She said that she was repentant about having refused to perform the prescription and that she would do it once her leave was over in exchange for being allowed to return to work before her leave was scheduled to be up. Ms. Tuma's requests were denied and she was advised that she would be apprised of her status upon completion of review of her records. On September 8, 1995, Ms. Tuma's 1995/96 salary was frozen per denial of a salary step increment. f. School Board's Last Attempt On November 8, 1995, Dr. Gray conducted a conference-on-the-record with Ms. Tuma to discuss her performance assessment to date, her medical fitness to perform full classroom duties, her noncompliance with directives, rules, contract provisions, and her future employment status. At the November 8, 1995 meeting, in a final attempt to save Ms. Tuma her job, Dr. Gray gave her two options: to work as an adult education teacher or to be redirected to a paraprofessional position. Ms. Tuma rejected both options. Suspension and Dismissal Proceedings Having exhausted all avenues of assistance to Ms. Tuma, the School Board, on January 24, 1996, suspended her and initiated these dismissal proceedings for gross insubordination and willful neglect of duties.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the School Board of Dade County, Florida, issue a Final Order sustaining the suspension without pay of Maria E. Tuma and dismissing her as an employee of the School Board of Dade County, Florida, without back pay, for gross insubordination and willful neglect of duties, pursuant to Section 231.36(4), Florida Statutes. DONE AND ENTERED this 18th day of October, 1996, in Tallahassee, Leon County, Florida. DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0820 Petitioner's Proposed Findings of Fact Paragraphs 1-17, 19-62, insofar as material, are accepted. Paragraph 18 is rejected as irrelevant. It is not clear from the evidence that this event was part of Ms. Tuma's pattern of insubordination. Respondent's Proposed Findings of Fact Paragraph 1 is accepted except that Ms. Tuma's insubordination had an effect on her competency. Paragraph 2 is accepted. Paragraph 3 is rejected for containing conclusions of law. Paragraph 4 is rejected with the exception of the last two sentences which are accepted. COPIES FURNISHED: Octavio J. Visiedo Superintendent Dade County School Board 1450 Northeast Second Avenue, Suite 403 Miami, Florida 33132 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Madelyn P. Schere, Esquire Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Joseph F. Lopez, Esquire 250 Bird Road, Suite 302 Coral Gables, Florida 33146 Ms. Maria E. Tuma 11320 Northwest 58th Place Hialeah, Florida 33012
The Issue The issue for determination is whether Respondent had just cause to suspend Petitioner for 30 workdays, without pay.
Findings Of Fact No dispute exists that the School Board is a constitutional entity charged with the duty to operate, control and supervise the public schools within the school district of Miami-Dade County, Florida. No dispute exists that, at all times material hereto, Mr. Boundy was employed full-time with the School Board as a teacher and held a professional service contract. Mr. Boundy had been a teacher with the School Board for 15 years. In his professional career, Mr. Boundy had been a teacher, then had practiced law in the State of Florida for 15 years, and had become a teacher again. No dispute exists that, at all times material hereto, Mr. Boundy was assigned to Nautilus Middle School, hereinafter Nautilus, in the Miami-Dade County’s school district. He was assigned to teach science. On September 30, 2005, Mr. Boundy was teaching his science class at Nautilus. He was having problems with one particular student, D. M., who was approximately 14 years of age.1 D. M. had just returned to class from being on indoor suspension, for cutting class. Earlier that day, after having returned from indoor suspension, D. M. had been involved in a physical altercation, a “minor”2 fight, and Mr. Boundy counseled him. At lunch time, another teacher broke-up a fight between D. M. and another student; Mr. Boundy counseled him again. Mr. Boundy determined that the first fight did “not” warrant a “write-up” and that the second fight perhaps “may” have warranted a write-up but that he decided not to do so.3 After lunch, while in Mr. Boundy’s class, D. M. had another fight with a student, which was D. M.’s third fight that day. Mr. Boundy has a policy in his class that, “after three strikes, you’re out,”4 therefore, instead of counseling D. M. again, Mr. Boundy determined that a “write-up” was warranted and that D. M. had to leave his class. Mr. Boundy told D. M. to leave the class and go to the office. Before leaving the class, D. M. began spraying perfume and then walked out into the hallway but did not go the office. Mr. Boundy observed D. M. still outside in the hallway. When Mr. Boundy walked out of his class into the hallway, he observed D. M spraying perfume in the hallway. Mr. Boundy asked D. M. to give the perfume to him (Mr. Boundy). D. M. raised his hand and brought it down as if to strike Mr. Boundy at which time Mr. Boundy grabbed D. M.’s hand and pulled it behind his (D. M.’s) back and told D. M. that he (D. M.) needed to go to the office. The hallway outside of Mr. Boundy’s classroom is equipped with a surveillance camera, which recorded the interaction between Mr. Boundy and D. M. after the contact described above. The surveillance camera does not record as a regular video camera but records as a series of snapshots or still pictures approximately every second, with gaps in between the snapshots; therefore, the surveillance camera fails to reveal completely what happens within a segment of time.5 As a result of the gaps in between snapshots of the surveillance camera, the testimony of witnesses is crucial in determining what happened. While in the hallway, the surveillance camera shows Mr. Boundy’s back to it and D. M. directly in front of him in such close proximity as if their bodies were touching. Mr. Boundy testified that he took D. M. by the arms and was directing him toward the doors leading to the office. Mr. Boundy’s testimony is found to be credible. Subsequently, while also in the hallway, the surveillance camera, in several snapshots, shows Mr. Boundy and D. M. separated, with D. M. facing Mr. Boundy, who testified that D. M. wrestled away from him. The surveillance camera also shows, in one snapshot, Mr. Boundy’s left hand on D. M.’s right shoulder and, in another snapshot, D. M. moving back toward the classroom. Mr. Boundy testified that D. M. was going back to the classroom without his (Mr. Boundy’s) permission. D. M. admitted that he was returning to the classroom without Mr. Boundy’s permission. Mr. Boundy’s testimony is found credible. Further snapshots by the surveillance camera show Mr. Boundy grabbing D. M. by the arms and shoulder area, when D. M. gets close to the classroom, and pushing D. M. down the hallway; and shows some students observing the conduct in the hallway. Also, the snapshots by the surveillance camera show Mr. Boundy and D. M. exiting the exit doors at the stairwell, with Mr. Boundy continuing to hold D. M.’s arms. After they go through the exit doors, the snapshots by the surveillance camera show Mr. Boundy releasing D. M. and watching D. M. go down the stairs. Mr. Boundy testified that he told D. M. to go to the office. D. M. does not deny that Mr. Boundy told him to go to the office at that point. D. M. went to the main office. The school counselor, Amy Magney, talked with D. M., who was loud and appeared to be agitated. Ms. Magney observed marks on D. M.’s arms and the back of his neck, which she described as “very red.” D. M. informed Ms. Magney that Mr. Boundy’s forceful touching had caused the red marks. Ms. Magney took D. M. to the assistant principal, Ms. Gonsky, who observed marks on D. M.’s arms, which were red, and marks on D. M.’s the neck, shoulder area, which Ms. Gonsky described as a “little red.” Mr. Boundy admits, and at no time did he deny, that he grabbed D. M. by the arms and shoulder area. For example, at the Conference for the Record (CFR) held on November 15, 2005, Mr. Boundy admitted that he held D. M.’s arms by the back directing him towards the stairs. A detective of the School Board’s police department reviewed the snapshots by the surveillance camera. From the detective’s observation, he determined that Mr. Boundy did not take any malicious action against D. M.; that D. M. was resisting Mr. Boundy; that, at one point, D. M. made an aggressive action against Mr. Boundy; and that Mr. Boundy was “directing, escorting” D. M. through the exit doors. D. M. testified that Mr. Boundy also grabbed him around the neck. Mr. Boundy denies that he grabbed or touched D. M.’s neck but admits that he grabbed D. M. at the shoulder area. V. V., a student in Mr. Boundy’s class, testified that Mr. Boundy grabbed D. M. by the neck, pushing D. M. out of the classroom. Also, the Conference for the Record (CFR) held on November 15, 2005, indicates that the same student stated that, while Mr. Boundy and D. M. were in the hallway, D. M. swung at Mr. Boundy and struck him in the chest. Mr. Boundy denies that he was struck by D. M. and D. M. denies that he struck Mr. Boundy. V. V.’s testimony is not found to be credible. The snapshots by the surveillance camera do not show Mr. Boundy grabbing or touching D. M.’s neck. Ms. Magney was the first person in the school's office to observe the marks, and when she saw the marks on the back of D. M.’s “neck,” the marks were “very red”; however, when Ms. Gonsky, the second person in the school's office to observe the marks, the marks around the “neck, shoulder area” were a “little red.” Further, D. M. had been in two physical altercations before the incident with Mr. Boundy and the last altercation had occurred at lunch time. Ms. Gonsky’s account of the location of the red marks is not inconsistent with Mr. Boundy’s testimony, regarding the shoulder area. Additionally, when Ms. Gonsky observed the marks at the neck, shoulder area, they were a little red, not red or very red. The undersigned finds Mr. Boundy’s and Ms. Gonsky’s testimony and account more credible regarding the marks being at the shoulder area, not the neck. Furthermore, the undersigned finds that Mr. Boundy grabbed D. M. at the shoulder area and that the marks at the shoulder area were caused by Mr. Boundy and were a little red. No dispute exists that D. M. was being disruptive. Mr. Boundy had counseled D. M. on two occasions that same day for fighting. D. M. had committed a third strike by fighting again in Mr. Boundy's class, and according to Mr. Boundy's classroom policy of which the students were aware, the third strike meant that the student was leaving the classroom and going to the school's office. Mr. Boundy was going to write-up D. M. for the incident but did not do so. Before he could write-up D. M., Mr. Boundy was summoned to the school's office after the administrators in the office observed the marks and heard D. M.'s version of the incident. At the beginning of each school year, the principal of Nautilus, Caridad Figueredo, has an opening meeting, consisting of two days. At the opening meeting, among other things, Ms. Figueredo notifies the Nautilus' faculty that they must comply with the rules of the School Board and the Code of Ethics, and some of the rules are reviewed with the faculty. Further, at the opening meeting, Nautilus' faculty is provided a copy of the Faculty Handbook. Nautilus' faculty signs an acknowledgement that they understand that they are responsible for becoming knowledgeable about the rules and adhering to them. Mr. Boundy signed an acknowledgement and received a copy of the Faculty Handbook. Regarding physical contact, Ms. Figueredo indicates at the opening meeting that the School Board prohibits using physical contact to maintain discipline or to affect a student’s behavior. As a result, at the opening meeting, she informs Nautilus' faculty, and stresses to them, that they should not use physical force or, generally, to come in physical contact with the students. However, as to coming into physical contact with students, an exception is recognized and allowed in the touching of a student by a teacher if the teacher has a rapport with the student and the student has no objection to or approves of the teacher just tapping him or her. That exception is not applicable in the instant case. Nautilus had a 2005-2006 Faculty and Staff Handbook, hereinafter Handbook. The Handbook contained a Progressive Discipline Plan, hereinafter Plan, for teachers to use when they encounter disruptive students. The Plan contained several steps of action, which provided in pertinent part: Step I: Teacher The teacher may handle discipline in the following ways (list not inclusive): Move close to the student – use verbal and/or non-verbal techniques to correct behavior problems * * * Speak with the student on a one-to-one basis * * * Contact parent (verbal and/or written) Hold parent or student/parent conference PLEASE NOTE: Parent contact is REQUIRED before a referral can be made to the administration. Only disciplinary problems involving infractions of the Code of Student Conduct Group III or higher (fighting . . .) may be directly referred to the administration using a case management form. * * * Step IV: Referring Students For Administrative Action Students should be sent directly to the appropriate administrator only when critical incidents occur such as fighting . . . Please use your emergency button to request for[sic] assistance. If a student becomes disruptive and you request removal the administrator will take the appropriate disciplinary action deemed necessary according to the Code of Student Conduct and provide teachers immediate feedback. (emphasis in original) The Handbook also contained a section entitled “Things To Remember When Dealing With A Student,” which provided in pertinent part: 4. DON’T: Snatch things away from students. Become confrontational. Physically block an exit. Argue or get on the student’s level. Shout or put them down. Disrespect them. * * * 6. Use common sense regarding touching students: Be aware that affectionate gestures may be misconstrued. Avoid physical contact of any kind in situations involving you and student (i.e. where there are no witnesses). Additionally, the Handbook contained a section entitled “How to Avoid Legal Complications as an Educator,” which provided in pertinent part: Respect the space of others. Do not place your hands on students. * * * Know the laws, School Board policies and school rules, and follow them. * * * Corporal punishment is prohibited in Miami- Dade County Public Schools. Treat each student with respect. Establish a policy regarding discipline. Distribute the policy to students and parents at the beginning of the year or when the students begin your class. The School Board has established “Procedures for Promoting and Maintaining a Safe Learning Environment,” which provides in pertinent part: Purpose of the Procedures for Promoting and Maintaining a Safe Learning Environment This document, Procedures for Promoting and Maintaining a Safe Learning Environment, is incorporated by reference and is a part of School Board Rule 6Gx13-5D-1.08, Maintenance of Appropriate Student Behavior. It has been prepared to assist school administrators in promoting and maintaining a safe learning environment in the public schools of Miami-Dade County, Florida. These procedures and directions are set forth to guide and promote orderly and productive participation of students in school life and support the achievement of Florida's education goal for school safety and environment, Section 229.591(3)(e), F.S. Student actions and behaviors that can be defined as disruptive and/or threatening must be dealt with according to Florida Statutes, and Florida Board of Education and Miami-Dade County School Board Rules. This manual contains information necessary to assist school administrators in making the most appropriate decisions and taking warranted action in promoting maintaining a safe learning environment. * * * Administrators, counselors, and appropriate staff are expected to become familiar with this document, to review it periodically, and to utilize it according to its inherent purpose -- promoting and maintaining a safe learning environment in the public schools of Miami-Dade County, Florida. As the administration and staff at each school site address the requirements of current Miami- Dade County Public Schools (M-DCPS) guidelines, they should also review modifications of requirements related to school discipline and school safety as established by the Florida Legislature. * * * GUIDELINE #39: REMOVAL OF STUDENT FROM CLASS AND POSSIBLE EXCLUSION OF THE STUDENT BY THE TEACHER CURRENT LAW AND/OR PRACTICE: Florida Statutes and Miami-Dade County School Board Rules allow for teachers to remove a disruptive student from class if the behavior of the student has an adverse effect on the teacher's ability to communicate effectively with students or the ability of the students to learn. Section 232.271, F.S., provides for the right of the teacher to refuse to accept a student back to class who has been removed for disruptive behavior which adversely affects the teacher's ability to communicate effectively with the students or with the ability of the students to learn. Provisions for Exceptional Students: The Placement Review Committee shall refer to the IEP team all exclusion requests for students from exceptional education classes. Temporary Removal from Class 1. 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 the student's return to class, a report describing corrective action(s) taken. Guidelines for implementing this provision shall be developed by each Educational Excellence School Advisory Council (EESAC). Code of Student Conduct Infractions The principal or designee will follow the Code of Student Conduct on all disciplinary matters. Only those disciplinary problems which disrupt a teacher's instruction, when the teacher requests the student's permanent removal from class, shall be referred to the Placement Review Committee, if the request is not resolved by the principal. A CFR was held on November 15, 2005. A Summary of the CFR was prepared and provides in pertinent part: [Mr. Boundy was asked]: 'Did you touch the student?' [Mr. Boundy] replied: 'Yes and it will never happen again.' * * * The following directives are herein delineated which were issued to you [Mr. Boundy] during the conference: Adhere to all M-DCPS [Miami-Dade County Public Schools] rules and regulations at all times, specifically School Board Rules [sic] 6Gx13-4A-1.21, Responsibilities and Duties. Adhere to The Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida. Cease and desist from utilizing physical means to effect the behavior of students. * * * During the conference, you [Mr. Boundy] were directed to comply with and were provided copies of the following School Board Rules: 6Gx13-4A-1.21, Responsibilities and Duties 6Gx13-4A-1.213, The Code of Ethics You [Mr. Boundy] were advised of the high esteem in which teachers are held and of the District's [School Board's] concern for any behavior, which adversely affects this level of professionalism. You [Mr. Boundy] were reminded of the prime directive to maintain a safe learning environment for all students and that your actions violated this directive. . . . Further, attached to the Summary of the CFR was "Guideline #9: Corporal Punishment, Current Law and/or Practice, from the Procedures for Promoting and Maintaining a Safe Learning Environment," which provides in pertinent part: GUIDELINE #9: CORPORAL PUNISHMENT CURRENT LAW AND/OR PRACTICE: CORPORAL PUNISHMENT IS PROHIBITED IN MIAMI-DADE COUNTY PUBLIC SCHOOLS. . . . Corporal punishment is physical force or physical contact applied to the body as punishment. Section 228.041(27), F.S., defines corporal punishment as: . . . the moderate use of physical force or physical contact by a teacher or principal as may be necessary to maintain discipline or to enforce school rule. However, the term 'corporal punishment' does not include the use of such reasonable force by a teacher or principal as may be necessary for self-protection or to protect other students from disruptive students. The use of physical restraint techniques in accordance with the Miami-Dade County School Board Rule 6Gx13-6A-1.331, Procedures for Providing Special Education for Exceptional Students and Article VIII of the Contract Between Miami-Dade County Public Schools and the United Teachers of Dade is not corporal punishment. Prior to Mr. Boundy’s going into the hallway, to confront D. M., alternative avenues were available to Mr. Boundy for sending D. M. to the school's office without confronting him in the hallway. Nautilus has a protocol that, whenever a teacher is unable to control a disruptive student by using classroom management techniques, the teacher can press a security button, located in the classroom, and a security monitor or an administrator will immediately come to the classroom. The security monitor or administrator will assess the situation and remove the disruptive student. Mr. Boundy failed to use this established protocol. The undersigned does not find credible the testimony given on alternative methods of dealing with D. M., as a disruptive student, in terms of in-school suspension, student mediation, conflict resolution, parent involvement, alternative education, suspension, and expulsion as being applicable to the instant case. These alternatives are available after the student is removed from the classroom to the school's office; they fail to address the immediate removal of the physical presence of a disruptive student from the classroom. The exception to corporal punishment found at Guideline Nos. 9 and 39, regarding the use of physical restraint techniques for situations involving Exceptional Student Education (ESE), is not applicable to the instant case. Mr. Boundy's class was not an ESE class, and D. M. was not an ESE student. Also, the exception to corporal punishment found at Guideline No. 9, regarding situations to protect other students, is not applicable to the instant case. None of the other students in Mr. Boundy's class were in harm's way or needed protection in the hallway outside Mr. Boundy's classroom. However, the exception to corporal punishment in a situation for self-protection, i.e., the protection of Mr. Boundy from D. M., was applicable in the instant case. When D. M. raised his hand and brought it down as if to strike Mr. Boundy, Mr. Boundy grabbed D. M.'s arms and put his (D. M.'s) arms behind his back; at that instant, Mr. Boundy was in need of self-protection and he (Mr. Boundy) acted appropriately. But, the evidence fails to demonstrate that, after Mr. Boundy prevented D. M. from striking him, Mr. Boundy continued to be in need of self-protection. Self-protection failed to continue to exist and failed to exist during the time that Mr. Boundy was directing/escorting D. M. down the hall to the exit doors. The Administrative Director of the School Board's Office of Professional Standards, Gretchen Williams, testified that Mr. Boundy's use of physical contact in the handling of D. M. in the hallway and that the presence of red marks on D. M., exemplified excessive force, which rendered Mr. Boundy's action as a violent act. Further, she testified that Mr. Boundy's conduct was corporal punishment; that his violent act constituted unseemly conduct; and that his violent act was contrary to the School Board's prime directive to maintain a safe learning environment, which constituted unseemly conduct and was conduct unbecoming a School Board employee. Ms. Williams' testimony is found to be credible. Also, the School Board's Administrative Director, Region II, DanySu Pritchett testified that Mr. Boundy's physical force constituted violence in the workplace; and that he failed to maintain the respect and confidence of the student and the value of worth and dignity of the student through the use of physical force. Further, she testified that the failure to use an alternative method of removal by using the emergency call button was poor judgment and constituted conduct unbecoming a School Board employee. Ms. Pritchett's testimony is found to be credible. Additionally, Ms. Figueredo, testified that Mr. Boundy subjected D. M. to unnecessary embarrassment by using physical force in the hallway in front of D. M.'s classmates while Mr. Boundy was directing/escorting D. M. down the hall. Further, Ms. Figueredo testified that, during the hallway incident, Mr. Boundy engaged in corporal punishment, conduct unbecoming an employee of the School Board, unseemly conduct, and poor judgment, and was not a good role model to the students and staff. Ms. Figueredo's testimony is found to be credible. Also, Ms. Figueredo testified that Mr. Boundy's use of poor judgment and failure to use established protocol and to exemplify a good role model to the students and the staff caused Mr. Boundy to lose his effectiveness. Ms. Figueredo's testimony is found to be credible. Pending the investigation of the incident by the School Board, Mr. Boundy was removed from the classroom. He was placed on alternative assignment, i.e., at his home. Due to Mr. Boundy's failure to follow established protocol at Nautilus for the removal of D. M. from the classroom, to the physical force used by Mr. Boundy, to the marks that were a little red and were caused by the physical force, and to the seriousness of the incident, by memorandum dated November 21, 2005, Ms. Figueredo recommended a 30-day suspension for violation of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties. Ms. Pritchett agreed with the recommendation. By memorandum dated December 1, 2005, the School Board's Region Center II concurred in the recommendation. On February 28, 2006, a meeting was held with Mr. Boundy to address the forthcoming School Board's consideration of the recommendation for a 30-day suspension without pay. Those in attendance included Mr. Boundy, Ms. Williams, Ms. Pritchett, Ms. Figueredo, and a UTD representative, Mr. Molnar. The determination was that Mr. Boundy would be recommended for a 30-day suspension without pay for just cause, including but not limited to "deficient performance of job responsibilities; conduct unbecoming a School Board employee; and violation of State Board Rule 6B-1.001, Code of Ethics of the Education Profession in Florida; and School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties; and 6Gx13-5D-1.07, Corporal Punishment--Prohibited." By letter dated March 1, 2006, Mr. Boundy was notified by the School Board's Assistant Superintendent, among other things, that the School Board's Superintendent would be recommending, at the School Board's meeting scheduled for March 15, 2006, the 30-day suspension without pay for just cause, indicating the violations aforementioned. By letter dated March 16, 2006, the School Board's Assistant Superintendent notified Mr. Boundy, among other things, that the School Board had approved the recommendation and that he was not to report to work at Nautilus from March 16, 2006 through April 26, 2006.
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 that just cause existed for the 30-day suspension, without pay, from employment of Robert Boundy. DONE AND ENTERED this 30th day of April 2007, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 30th day of April, 2007.
The Issue The issue is whether Petitioner had just cause to discipline Respondent and; if so, what discipline should be imposed for Respondent’s actions.
Findings Of Fact Parties Petitioner is the constitutional entity authorized to operate, control, and supervise the system of public schools in Lake County, Florida. Art. IX, § 4(b), Florida Constitution; § 1001.32, Fla. Stat. Petitioner has the authority to discipline instructional staff and other school employees. § 1012.22(1)(f), Fla. Stat. At all times relevant to this proceeding, Respondent was a physical education (“PE”) instructor at Clermont Middle School. During the 2016-2017 school year, Mr. McCallion was assigned to instruct five classes with 40 students in each class, for a total of 200 students. As a PE instructor Mr. McCallion maintains records for students, including students in the Exceptional Student Education (“ESE”) program. The student files contain confidential information, including student 504 plans, Individual Education Plans (“IEPs”), student grades, teacher comments regarding students, social security numbers, and personal health information. Mr. McCallion maintained the student records in five binders and stored them on a cart so he could easily transport the records between his office and the class meeting location. When class was not in session, the records were stored in Mr. McCallion’s office. In addition to student files, Mr. McCallion stored his school-assigned lap top; his personal effects, including his wallet and car keys; and money collected from students for school-related activities in his office. Office/Security of Records In accordance with the Collective Bargaining Agreement, Mr. McCallion was assigned an office located in the boys’ locker room. He did not share his office with any other school employee. However, there were reportedly 20 keys issued to individuals that could be used for Mr. McCallion’s office. Mr. McCallion shared with the school principal, Mr. McCue, his concern about the number of keys to his office. School Board Policy 5.70 states that “rules and procedures for maintaining student records shall be consistent with Florida Statutes, State Board of Education rules, and “Federal Education Rights and Privacy Act” (“FERPA”) and “Privacy Rights of Parents and Students.” Rule 6A-1.0955 requires that student records used or maintained by a public institution or agency be protected in accordance with FERPA. Further, this rule requires that the confidentiality of the student records be maintained from unauthorized or unintentional access and that the school principal or designee is responsible for those records at the school level. Mr. McCue acknowledged that the security of student records is important and that it was Mr. McCallion’s responsibility to secure the records. Mr. McCallion did not have a locked file cabinet in his office. The testimony at hearing revealed that there was a room within Mr. McCallion’s office that could be used to store files. However, that room did not have a lock. While Mr. McCue stated there were other alternatives within Mr. McCallion’s office that could be used to store files, all other options known to Mr. McCallion would not provide the same security as a locked office. Events Giving Rise to This Proceeding On February 9, 2017, Mr. McCallion was scheduled to work the usual school day followed by car duty until 4:15 p.m. On the same evening, two basketball games were scheduled to take place in the school gym, beginning with the boys’ game at 5:30 p.m. After car duty, at approximately 5:15 p.m., Mr. McCallion returned to his office and discovered a male referee changing clothes in his office. Mr. McCallion had not given the referee permission to use his office and had no knowledge who gave him permission. Although each room at Clermont Middle School could be rented through a rental agreement, Mr. McCue confirmed at hearing that the referees did not have an agreement to use Mr. McCallion’s office. The undersigned finds that the security of the student records was compromised when an unauthorized person had access to them. Mr. McCallion went to the gym and spoke with the athletic director, Coach Seabrook. Mr. McCallion expressed his “concern” about the referee using his office without his prior knowledge. According to Mr. McCallion, Coach Seabrook advised him that she allowed the referee to use his office because she did not know where to put him. Concerned, in part, for the safety of the student records, Mr. McCallion decided to replace the lock on his office door. He purchased a lock from the local Lowe’s home improvement store, removed the School Board-owned lock, and replaced that lock with the lock he purchased at Lowe’s. The boys’ game had ended when Mr. McCallion finished changing the lock, so he placed the referee’s personal items on a bench within the locked locker room. The referee’s personal items were secure because all persons with access to the locker room after the game ended were school personnel. Mr. McCallion did not have permission from Mr. McCue or any administrator to replace the lock on his office door. Approximately five days later, he told Mr. McCue about the lock change. Unbeknownst to Mr. McCallion, at some point after the boys’ game started on February 9, 2017, Mr. McCue arrived at the game. The athletic director approached him and told him that Mr. McCallion had a conversation with her about using his office for the referees to change. However, Mr. McCue and Mr. McCallion did not see each other at the game. After the game, Mr. McCue went to let the referee into Mr. McCallion’s office to retrieve his personal items. He walked through the locked boys’ locker room to get there. Mr. McCue’s key did not work on the office door. He asked the athletic director and her key did not work either. Then, Mr. McCue asked the custodian to try his key without success. It was about this time that Mr. McCue noticed that the referee’s personal items were on a bench in the locker room and they had walked past them. Mr. McCue also noticed that the door handle/lock to Mr. McCallion’s office had been replaced with an unauthorized lock. School Board policy requires that only authorized district personnel may change locks on school board property. Prior Discipline Prior to the February 2017 incident, Mr. McCallion had prior discipline which arose from an incident involving damage to school property (a door lock). During the 2013-2014 school year, Mr. McCallion chaperoned a school field trip. He returned from the field trip after 6:30 p.m. and discovered that the locks to the gym had been changed. Mr. McCallion was unable to access his office to retrieve his personal items. Then, he used a pocket knife to gain access to the gym, which caused damage to the gym door handle. Due to Mr. McCallion’s actions, he was issued a Level II written reprimand on April 15, 2014. After the incident, Mr. McCue discussed the circumstances with the employee relations office. They discussed the School Board’s policy on progressive discipline. Petitioner has adopted, as policy, section 6.361 of the School Board of Lake County, an Employee Discipline Plan. The Employee Discipline Plan includes a Progressive Discipline Method by which sanctions are graduated based on the severity of the occurrence, and on whether it has recurred. The purpose of the policy is to let employees know the nature of the violation and provide an opportunity to correct the behavior. Each subsequent offense calls for the next step in discipline. On February 15, 2017, Respondent discussed the incident with Mr. McCue. On February 27, 2017, Mr. McCue issued a letter notifying Respondent that he would recommend to the Superintendent that Mr. McCallion be suspended without pay for one day for his actions. Mr. McCallion’s complete employee file was not presented at the hearing. However, the performance evaluation documents that were entered into evidence show that he was an employee of the School Board for at least the past 12 years and had received satisfactory evaluations in the area of classroom instruction and supervision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Lake County School Board, enter a final order: dismissing the allegations in the notice of recommendation of suspension that Respondent failed to appropriately communicate with colleagues and administrators; finding that Patrick McCallion engaged in misconduct by removing the lock on his office door without authorization and replacing it with an unauthorized lock; and finding that Lake County School Board had just cause to discipline Patrick McCallion with a one-day suspension without pay for misconduct in office. DONE AND ENTERED this 6th day of October, 2017, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 6th day of October, 2017. COPIES FURNISHED: Stephen W. Johnson, Esquire McLin and Burnsed 1000 West Main Street Post Office Box 491357 Leesburg, Florida 34749-1357 (eServed) Mark S. Levine, Esquire Levine & Stivers, LLC 245 East Virginia Street Tallahassee, Florida 32301 (eServed) Ronald G. Stowers, Esquire Levine and Stivers, LLC 245 East Virginia Street Tallahassee, Florida 32301 (eServed) Diane S. Kornegay, M.Ed. Superintendent Lake County Schools 201 West Burleigh Boulevard Tavares, Florida 32778-2496 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Pam Stewart, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether the Respondent committed the violations alleged in the letter dated February 14, 2002, and in the Notice of Specific Charges filed April 3, 2002, and, if so, whether the Respondent should be dismissed from his employment with the Petitioner.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is responsible for operating, controlling, and supervising the free public schools in the Miami-Dade County school district and has the power to suspend and dismiss employees. Article IX, Section 4(b), Florida Constitution; Sections 230.03(2) and 230.23(5)(f), Florida Statutes (2001). Mr. Fullington is employed by the School Board as a journeyman Plumber II, and, prior to his suspension in February 2002, he was assigned to the North Satellite office of the School Board's Maintenance Department. He is represented by the Dade County School Maintenance Employee Committee, which has a contract with the Miami-Dade County public school system ("DCSMEC Contract") effective June 2001 through September 30, 2002.3 Mr. Fullington has worked for the School Board for 19 years; he began in 1983 as a laborer and worked his way up to journeyman plumber, which requires a five-year apprenticeship. In 1994, the School Board suspended Mr. Fullington and initiated proceedings to dismiss him from his employment, alleging that he had committed misconduct in office by forging the signatures of two of his supervisors on school district documents. After an evidentiary hearing, a Recommended Order was entered by a School Board hearing officer, who noted that Mr. Fullington admitted the charges but was remorseful and presented evidence of mitigating factors. The hearing office concluded that Mr. Fullington should not be dismissed from employment and recommended that Mr. Fullington be suspended without pay for four months. The School Board entered a Final Order on August 23, 1995, in which it adopted the hearing officer's Recommended Order and imposed the penalty recommended by the hearing officer. Mr. Fullington was promoted from an apprentice plumber to a journeyman Plumber II in January 1998. Leo Akers has been Mr. Fullington's foreman for seven or eight years.4 According to Mr. Akers, Mr. Fullington's job performance was, until his suspension, adequate, although his work was excellent when he was an apprentice. In Mr. Akers' experience working with Mr. Fullington, he has always performed his job assignments. Mr. Akers has never reported Mr. Fullington to his superiors for a discipline problem, he has had no difficulties working with Mr. Fullington, and he has received no complaints about Mr. Fullington from his co-workers. Prior to the incidents giving rise to this proceeding, the only disciplinary action taken by the School Board against Mr. Fullington was the four-month suspension in 1995. In June 1997, Mr. Fullington and his co-worker Steven Montgomery were commended by the principal of a Miami-Dade County elementary school, who wrote a letter to Max Metzger, the Director of the North Satellite of the Maintenance Department, praising Mr. Fullington and Mr. Montgomery for their work re- piping the school's broken water system. The principal stated among other things that "[t]he actions, behavior and cooperativeness of these two men deserve great recognition and applause, because our school operation was normal and free of major disruption as they worked." Solicitation for prostitution. Mr. Fullington was assigned overtime work on Saturday, August 18, 2001. When he reported to work at approximately 6:00 a.m., Mr. Akers, his foreman, met Mr. Fullington and told him to drive a School Board van to a plumbing supply house to pick up a load of pipe needed for the job. Mr. Fullington was then to meet Mr. Akers and two other plumbers at the job site, where they were installing the plumbing for a kitchen at one of Miami-Dade County's trade schools. On the way to the supply house, Mr. Fullington initially drove down Interstate 95, but he decided to avoid the traffic and take Second Avenue. As he drove down Second Avenue, he saw a young woman standing on the corner of Northwest 79th Street and Second Court, and he thought he recognized her as someone he knew in high school and from his neighborhood. Mr. Fullington turned the van around and drove back to speak to the woman. He pulled the van over to the side of the street, and he and the young woman engaged in a short conversation. According to Mr. Fullington, the encounter consisted of the following: He approached the young woman in the School Board van and told her that she looked familiar and that he thought he knew her. She responded that he looked familiar, and she asked him what he was doing. He responded that he was working; she responded that she was working, too. Mr. Fullington testified that, when he realized what the woman meant, he began to laugh because he was embarrassed that he had stopped, and he drove away. The young woman was actually Officer Robin Starks, an undercover police officer working on a "prostitution detail," posing as a decoy. During her time with the Miami Police Department vice unit, Officer Starks has participated in at least 200, and maybe more, prostitution details. On August 18, 2001, she was assigned to work on the prostitution detail from 4:00 a.m. to 9:00 a.m., during which time she made five or more arrests. Officer Starks testified that, when she is working as a decoy on a prostitution detail, she does not do anything that would make a person think she was a prostitute: She does not walk provocatively or wave at passers-by but just stands on a corner; she normally wears shorts or a skirt, and she never dresses like a prostitute but always dresses the way she would normally dress at home. She did not recall specifically what she was wearing on August 18, 2001. After the short conversation, Officer Starks turned and walked away from Mr. Fullington, who had remained seated in the van, and he drove away. She gave a signal to another person on the detail that Mr. Fullington should be arrested, and she proceeded to a nearby police vehicle and completed the narrative portion of an arrest affidavit with the following information: While working in an undercover capacity, defendant drove up in a large silver utility van bearing tag 100195 and M-768 affixed on the back of the vehicle. Defendant called this officer over and offered $10.00 dollars for some head. Take down signal was provided, units were notified and the defendant was apprehended.[5] The Arrest Affidavit was not signed by a notary in Officer Starks' presence, and Officer Starks' did not participate further in the events surrounding Mr. Fullington's arrest. According to that portion of the Arrest Affidavit completed by the officer who actually took him into custody, Mr. Fullington was arrested at 7:48 a.m. at Second Avenue and Northwest 75th Street and charged with soliciting to commit prostitution. He was taken in a police car to a substation, and the School Board's utility van was impounded. Mr. Fullington was in a panic after his arrest. The police officer tried to calm him and explained that he would not be put in jail but that he must sign the Arrest Affidavit before he could be released to return to work. Mr. Fullington signed the arrest affidavit, indicating that he would appear in court, and the police officer then told him he would have to pay $1,000.00 to get the School Board's vehicle out of the impoundment lot. The police officer drove Mr. Fullington to a Publix supermarket in his squad car so that Mr. Fullington could get cash from his savings account from the ATM. Mr. Fullington had only $860.00 in his savings account, and the police officer loaned him the additional $140.00. Mr. Fullington paid the $1,000.00 and got the School Board van out of impoundment. Before he left the substation, Mr. Fullington called Mr. Akers and told him he had an emergency and could not pick up the plumbing supplies. Mr. Akers told Mr. Fullington to report to the work site when he had taken care of the emergency. He reported for work at around 11:00 a.m. and told Mr. Akers a totally fabricated story to explain his absence. At the hearing, Mr. Fullington expressed remorse for having told Mr. Akers a lie but explained that, at the time, he was not thinking rationally and did not want anyone to know that he had been arrested for soliciting prostitution.6 On October 2, 2001, the criminal case against Mr. Fullington on the charges of offering to commit prostitution was closed with adjudication withheld and community service. Overtime hours. In accordance with the usual procedure, Mr. Akers completed a Facilities Support Services Weelky [sic] Overtime Report for each of the plumbers working on August 18, 2001, and left the forms at the job site. Each plumber was to sign his form at the end of the day to certify the number of overtime hours he had worked; the forms were then to be submitted to Mr. Akers for his review. Mr. Fullington signed the Weekly Overtime Services form with his name on it, which reflected that, on August 18, 2001, he had worked at the "Dorsey Skill" site from 6:00 a.m. until 4:30 p.m., for a total of 10 hours of overtime. Above his signature, was the following statement: "I certify that the work and hours indicated above are true and correct." It was Mr. Fullington's responsibility to ensure that the correct number of overtime hours was reported on the form. Mr. Fullington also signed a Daily Status Form for Maintenance and Operations on August 18, 2001, that showed that he had worked a total of 10 hours overtime, consisting of one hour of overtime travel and 9 hours of overtime. At the hearing, Mr. Fullington explained that he was so distracted by the events of August 18, 2001, that he signed both forms without looking at them. After Maintenance Department administrators learned that Mr. Fullington had inaccurately reported his overtime hours for August 18, 2001, he was advised that he could submit a Weekly Overtime Report and a Daily Status Report reflecting the number of hours that he had actually worked on August 18, 2001, and that he would get paid for those hours. Mr. Fullington did not submit the corrected forms and has not been paid for the hours of overtime that he actually worked on August 18, 2001. Additionally, Mr. Fullington never asked for, or received, reimbursement from the School Board for the $1,000.00 he paid to recover the School Board van from the impoundment lot. Post Office incident At around 12:30 p.m. on October 31, 2001,7 during their lunch hour, Robert Brown, the District Director of Maintenance Operations for the Miami-Dade County public school system, and Peter Vadas, Mr. Brown's co-worker, stopped at a post office so Mr. Vadas could purchase stamps. Mr. Brown saw a School Board van parked in the post office parking lot, and he waited in the car while Mr. Vadas went into the post office so he could keep the van under observation. After a few minutes, Mr. Vadas returned to the car. While Mr. Vadas was buckling his seat belt, Mr. Brown saw Mr. Fullington walking across the post office parking lot with a letter in his hand. The letter Mr. Fullington picked up was a certified letter from the School Board's Office of Professional Standards. Mr. Fullington was in the post office approximately 10 minutes. Mr. Brown observed Mr. Fullington get into the School Board van, where he sat and read the letter. As he and Mr. Brown sat in the post office parking lot observing Mr. Fullington read his letter, Mr. Vadas telephoned Kenny McFarland to report that Mr. Fullington was at the post office in a School Board van. Mr. McFarland, a Coordinator II at the North Satellite of the Maintenance Department, is a senior administrator who was in the supervisory chain-of-command for Mr. Fullington.8 After reading the letter, Mr. Fullington drove off, and Mr. Brown and Mr. Vadas returned to their office. Mr. Fullington's regular, assigned lunch half-hour was 11:30 a.m. to 12:00 p.m. This time could be changed with permission from his foreman. The post office that Mr. Fullington visited was located approximately 10 miles from the schools at which he was assigned to work that day. Incident involving Mr. Akers. On November 2, 2001, Mr. Fullington picked up his work assignments as usual from the "foreman's table" in the large office in which a number of maintenance foremen had their desks and work areas. At the time, there were perhaps 15 or 20 people in the foremen's office. The paperwork for Mr. Fullington's work assignments was affixed to a clipboard made of aluminum. Mr. Fullington was assigned to work with Steven Montgomery and, as they were walking to the truck with their assignments, Mr. Montgomery told Mr. Fullington that he overheard Mr. Akers telling someone that Mr. Fullington never showed up at a particular school to complete a work order. Mr. Montgomery believed that Mr. Akers was repeating something that someone else had told him about Mr. Fullington, and Mr. Montgomery told Mr. Fullington that he needed to clear up the misunderstanding. Mr. Fullington was upset to hear that Mr. Akers believed he had not completed a work assignment, and he wanted Mr. Akers to know that the information he was repeating was not correct. Mr. Fullington asked Mr. Montgomery to go back to the foremen's office with him so he could resolve the matter immediately. Mr. Fullington and Mr. Montgomery went back into the foremen's office area. Mr. Akers was sitting at his desk, which was made of metal. Mr. Fullington approached the desk and dropped the metal clipboard he was carrying onto the top of Mr. Aker's desk, next to his computer, in such a manner that it made a loud noise. Mr. Fullington began "hollering" at Mr. Akers, saying something about Mr. Akers trying to set him up.9 It was clear to Mr. Akers that Mr. Fullington was upset and angry, but Mr. Akers did not have any idea what Mr. Fullington was talking about. At the time, Mr. Akers felt threatened by Mr. Fullington; he was caught off guard by the outburst and does not recall saying anything in response to Mr. Fullington's accusations. When Mr. Fullington left the foremen's office, he forcefully kicked or pushed open the door to the hallway. Although Mr. Akers considered the incident very serious, he did not report the incident to his supervisor or call the police or security. Another foreman, John DiGregorio, who was in the room at the time of the incident, became nervous during the incident, primarily because of Mr. Fullington's size.10 Mr. DiGregorio immediately called his supervisor, Frank Brighton, whose office was on the floor above that of the foremen. Mr. Brighton came down to the foremen's office and questioned Mr. DiGregorio and Mr. Akers about the incident. Mr. Brighton reported the incident to Mr. Akers supervisor, Anthony Adams. Several days after the incident, Mr. Fullington asked Mr. Akers if he had felt threatened during the incident; Mr. Akers responded in the affirmative, and Mr. Fullington apologized. At the hearing, Mr. Fullington testified that he felt very badly about having raised his voice to Mr. Akers in anger. He explained that, at the time, he was under a lot of pressure because the Conference-for-the-Record to discuss the events of August 18, 2001, was scheduled for November 6, 2001, and he was concerned that his job with the School Board was in jeopardy. Mr. DiGregorio, who has been a maintenance foreman with the School Board for 10 years, had never previously seen Mr. Fullington act in any way that could be considered hostile or threatening. Mr. DiGregorio described Mr. Fullington's demeanor as generally gentle and non-threatening. In the years that Mr. Akers has worked with Mr. Fullington as his foreman, the only time Mr. Fullington ever raised his voice in Mr. Akers' presence was during the November 2, 2001, incident. Subsequent to the incident, Mr. Akers did not feel that he needed any protection from Mr. Fullington, they continued their usual good working relationship, and Mr. Fullington's job performance continued to be satisfactory. November 6, 2001, Conference-for-the-Record. On November 6, 2001, Reinaldo Benitez, an Executive Director of the School Board's Office of Professional Standards, held a Conference-for-the-Record with Mr. Fullington to address Mr. Fullington's arrest for offering to commit prostitution, to review his record with the School Board, and to discuss his future employment status with the Miami-Dade County public school system. Mr. Fullington's inaccurate reporting of the overtime hours he worked on August 18, 2001, was also discussed. Mr. Fullington's prior disciplinary record was set forth in the Summary of the Conference-for-the-Record. With the exception of the four-month suspension in 1995, the only disciplinary action taken against Mr. Fullington was a verbal reprimand in 1990 for improper conduct. Mr. Fullington was given an opportunity at the Conference-for-the-Record to consider resigning his position; he refused. The following directives were given to Mr. Fullington on November 6, 2001: Adhere to all M-DCPS School Board Rules at all times, especially 6Gx13-4A-1.21, Responsibilities and Duties/Employee Conduct. Honor your work hours from 7:00 a.m. to 3:30 p.m. Adhere to all maintenance procedures and regulations at all times. Adhere to the most direct route when traveling from location to location, unless you obtain authorization from your supervisor. Refrain from submitting any fraudulent documents to M-DCPS at any time. Mr. Fullington was advised that dismissal from his employment was a potential disciplinary action. After the November 6, 2001, Conference-for-the-Record, Mr. Vadas, District Director of Maintenance Operations; Max Metzger, the Director of Maintenance Operations at the North Satellite; and James Monroe, Executive Director of Facilities Operations, met and reviewed the data submitted at the conference. As a result of their deliberations, Mr. Vadas sent a memorandum, dated November 13, 2001, to the Office of Professional Standards recommending that Mr. Fullington be terminated from his employment with the School Board.11 No one asked for Mr. Akers' input on the recommendation, discussed the recommendation with him, or explained to him the reasons for the recommendation that Mr. Fullington's employment be terminated. There is no evidence that, prior to his suspension in February 2002, Mr. Fullington violated any of the directives given on November 6, 2001. November 16, 2001, Conference-for-the-Record. On November 16, 2001, Mr. Metzger, held a Conference- for-the-Record, the purpose of which was "to address your [Mr. Fullington's] failure to follow the Maintenance Department's policies and procedures as they pertain to the use of M-DCPS vehicles, your verbal abuse towards your foreperson, and other performance-related issues."12 The administrators at the Conference-for-the-Record discussed a number of the issues with Mr. Fullington, including Mr. Fullington's use of a School Board vehicle to visit a post office on personal business and Mr. Fullington's angry confrontation with Mr. Akers.13 No formal directives were given to Mr. Fullington as a result of this Conference-for-the-Record. Mr. Fullington was, however, reminded of the School Board policy that School Board vehicles are not to be used for personal business,14 of the School Board rules relating to employee conduct and to violence in the workplace, and of several other concerns.15 On January 15, 2002, a meeting was held during which Mr. Fullington was advised of the recommendation that he be dismissed from his employment with the School Board. Mr. Fullington was again offered the option of resigning his position. In a letter dated January 30, 2002, the Superintendent of Schools for Miami-Dade County notified Mr. Fullington that he was recommending to the School Board that, at its February 13, 2002, meeting, it suspend and initiate dismissal proceedings against him for "just cause." A letter to Mr. Fullington dated February 14, 2002, contained confirmation that the School Board had followed the Superintendent's recommendation. Summary Offering to commit prostitution. In the Notice of Specific Charges, the School Board included the allegation that Mr. Fullington "solicited prostitution from an undercover police officer."16 The School Board has, however, failed to establish by the greater weight of the evidence that Mr. Fullington solicited prostitution from Officer Starks. The testimony of Officer Starks and Mr. Fullington has been carefully considered, and there is nothing in either the testimony or the demeanor of Mr. Fullington and Officer Starks or in the other evidence presented on this issue that offers a cogent reason to accept Officer Starks' version of the incident over that of Mr. Fullington. This finding is based on a careful consideration of the totality of the evidence presented in this case relevant to the issue of whether Mr. Fullington solicited prostitution and a careful assessment of the credibility of Officer Stark and Mr. Fullington and of the persuasive value of their testimony.17 Consequently, discipline cannot be imposed on Mr. Fullington based on the allegations in the Notice of Specific Charges that he solicited prostitution. Additionally, the allegations that Mr. Fullington committed the offense while working overtime and while driving a School Board vehicle and that the School Board vehicle was impounded cannot form the basis for the imposition of discipline because the underlying allegation that he solicited prostitution has not been established.18 Reporting incorrect number of overtime hours worked on August 18,2001. In the Notice of Specific Charges, the School Board alleged that Mr. Fullington "falsely reported that he worked ten hours on that date [August 18, 2001]." Mr. Fullington does not dispute that he signed the Weekly Overtime Report and the Daily Status Report on August 18, 2001, certifying that he had worked 10 hours of overtime on that date and that the actual amount of time he worked on that day was not accurately reported on the forms. Even though credence is given to Mr. Fullington's explanation that he was so distraught by the events of August 18, 2001, that he did not look at the number of hours included on the forms, by signing the forms, Mr. Fullington certified that the number of overtime hours shown on the forms was correct. Mr. Fullington, therefore, submitted false information to the School Board, and he was not honest in his dealings with the School Board with respect to the overtime hours he worked on August 18, 2001. There was, however, no evidence presented by the School Board to support a finding that Mr. Fullington's inaccurate reporting of his hours for August 18, 2001, was so serious that his effectiveness as a School Board employee was impaired, and the totality of the evidence is insufficient to support a factual inference of impaired effectiveness. The School Board has failed to prove by the greater weight of the evidence that Mr. Fullington intentionally misrepresented the number of overtime hours that he worked on August 18, 2001. There is no evidence that Mr. Fullington intended to submit inaccurate information or that he engaged in any type of deceitful conduct in an attempt to ensure that he was paid for more overtime hours than he actually worked on August 18, 2001. And, given his many years of employment in the School Board's Maintenance Department, it is reasonable to infer that Mr. Fullington knew that Mr. Akers would have noted the discrepancy before submitting the forms to payroll. Use of the School Board van to go to the post office on personal business. The School Board has proven by the greater weight of the evidence that Mr. Fullington used a School Board vehicle for personal business when he went to the post office at about 12:30 p.m. on October 31, 2001, to collect a certified letter from the School Board. In doing so, Mr. Fullington violated the School Board's policy, set forth in the Maintenance Handbook that expressly prohibits the use of a School Board vehicle for personal business. Under the circumstances, Mr. Fullington committed a minor violation of Maintenance Department policy. Nonetheless, even though a minor offense, Mr. Fullington's use of the School Board's vehicle to go to the post office on October 31, 2001, constitutes the use of his access to School Board vehicles for his personal advantage. There was, however, no evidence presented by the School Board to support a finding that Mr. Fullington's use of a School Board vehicle for personal business on this occasion was so serious that his effectiveness as a School Board employee was impaired, and the totality of the evidence is insufficient to support a factual inference of impaired effectiveness. The School Board failed to present any creditable evidence to support its allegation in paragraph 7 of the Notice of Specific Charges that Mr. Fullington reported that he had worked at Barbara Goleman Senior High School from 7:30 a.m. to 1:00 pm. on October 31, 2001.19 Confrontation with Mr. Akers. Mr. Fullington did not controvert the evidence presented by the School Board that, on the morning of November 2, 2001, he confronted his foreman, Mr. Akers, about a negative comment Mr. Akers reportedly made about Mr. Fullington to other School Board employees; that he was angry and upset; that he shouted at Mr. Akers; and that he angrily and forcefully pushed the door open when he left the foremen's office. The evidence presented by the School Board is also sufficient to establish that Mr. Akers and Mr. DiGregorio perceived Mr. Fullington's behavior as threatening and that Mr. Akers felt fear during the confrontation. The impact of Mr. Fullington's conduct on this occasion is, however, mitigated by the testimony of Mr. Akers that he and Mr. Fullington worked together in a satisfactory supervisor-employee relationship after the November 2, 2001, incident and by the testimony of both Mr. Akers and Mr. DiGregorio that they have never felt threatened by or nervous around Mr. Fullington before or since the November 2, 2001, incident. The School Board has, therefore, established by the greater weight of the evidence that Mr. Fullington committed three offenses: He submitted two forms containing an inaccurate statement of his overtime hours on August 18, 2001; he used a School Board vehicle for personal business; and he confronted Mr. Akers in anger. However, none of the three offenses is inconsistent with the standards of public conscience and good morals or impaired Mr. Fullington's service in the community; none of the three offenses involves the constant or continuing intentional refusal to obey a direct order; none of the three offenses constitutes repeated violations of the law or repeated acts of indiscretion that persisted over an extended period of time, and none of the offenses was so serious that it impaired Mr. Fullington's effectiveness as a School Board employee. In light of Mr. Fullington's 19-year employment record with the School Board, which is marred by only one verbal reprimand and one four-month suspension, these three offenses, whether considered separately or cumulatively, are not sufficient to constitute "just and good cause" to suspend and dismiss Mr. Fullington from his employment with the School Board.
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 Counts I, II, IV, and V of the Notice of Specific Charges against Benjamin Fullington; Finding that Mr. Fullington engaged in conduct unbecoming a School Board employee, in violation of School Board Rule 6Gx13-4A-1.21(I); Reinstating Mr. Fullington to his position as a Plumber II with the School Board's Maintenance Department, with full back pay and benefits; and Issuing a written reprimand to be placed in Mr. Fullington's personnel file. DONE AND ENTERED this 30th day of September, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 30th day of September, 2002.
