Findings Of Fact At the administrative hearing which was scheduled for the time and place shown above, Mr. Carlos Viciedo, Sr., father of the minor student named as Respondent herein, announced that his son, Carlos Viciedo, Jr., had been moved to Los Angeles, California, by his Mother. The student, Carlos Viciedo, Jr., has been enrolled in the school system of Los Angeles, and removed from the Dade County School system. The principal at South Miami Junior High School where Carlos Viciedo, Jr., was enrolled prior to the transfer to Douglas MacArthur Senior High School -- South, verified that papers have been received from the Los Angeles, California, school system to demonstrate that the student has requested a transfer from the schools in Dade County to the schools in Los Angeles. Mr. Carlos Viciedo, Sr., plans to join his family in Los Angeles, and the enrollment of his son in the school system there is permanent.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County dismiss the proceeding it initiated to effect a transfer of the Respondent, Carlos Viciedo, Jr., from South Miami Junior High School to the Alternative Education Program at Douglas MacArthur Senior High School -- South. THIS RECOMMENDED ORDER entered on this 17th day of February, 1983. WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1983. COPIES FURNISHED: Michael J. Neimand, Esquire Suite 300 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Carlos Viciedo, Sr. 1122 Southwest 134th Place Miami, Florida 33183 Phyllis O. Douglas, Esquire Assistant Board Attorney Dade County Public School 1410 Northeast 2nd Avenue Miami, Florida 33132 Dade County School Board 1410 Northeast 2nd Avenue Miami, Florida 33132
The Issue Whether Respondent committed the acts alleged in the Notice of Specific Charges filed September 28, 2010, and, if so, the discipline, if any, that should be imposed against Respondent's employment.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. At all times relevant to this proceeding, Respondent has been on a professional service contract that is subject to a collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade (hereinafter "the UTD Contract"), applicable Florida Statutes, applicable rules adopted by the Florida State Board of Education as set forth in the Florida Administrative Code, and Petitioner's adopted policies and procedures. Article XXI, Section 1.B(1)(a) of the UTD Contract provides that "Any member of the instructional staff may be suspended or dismissed at any time during the school year, provided that the charges against him/her are based upon Florida Statutes." The School Board has adopted Rule 6Gx13-4A-1.21, Responsibilities and Duties, which provides in pertinent that: All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the workplace is expressly prohibited. School Board Rule 6Gx13-4A-1.213, Code of Ethics, requires employees of Petitioner to abide by state regulations. The Principles of Professional Conduct for the Education Profession in Florida are set forth in Florida Administrative Code Rule 6B-1.006. Subsections (3)(a) and (e) thereof provide as follows: Obligation to the student requires that the individual: Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's physical health and/or safety. * * * (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement. Petitioner has employed Respondent as a full-time P.E. teacher at South Miami Heights since the 2006-07 school year. South Miami Heights is a public school located in Miami-Dade County, Florida. Respondent has not been the subject of any disciplinary actions by Petitioner other than the incident that is the subject of this matter. Respondent's practice throughout her tenure at South Miami Heights was to require students arriving at P.E. to line up, stop talking, and generally exhibit good behavior prior to starting class. On those occasions when students were not well- behaved, Respondent required the students to walk in an orderly fashion until they calmed down and showed they were ready for class. On hot days, she would required them to walk around the inside corridors of the school, while on cooler days the students would walk outside. In prior years, with a different principal, Respondent would have the students walk in front of the principal's office, who would then go out and call the students to attention to get them to calm down. During the 2009-10 school year Respondent taught P.E. at South Miami Heights to second, third, fourth, and fifth-grade students between the hours of 8:30 a.m. and 3:00 p.m. Her last P.E. class started at 2:00 p.m. and ended at 3:00 p.m. Students in her last class typically brought their book bags with them. On April 15, 2010, at approximately 2:00 p.m., third- grade students from Ms. Fuentes-Garcia's class walked from her class to Respondent's class. There were approximately 25 students in the class. Each student had a book bag. When Respondent took responsibility for the class, many students were talking or otherwise misbehaving. Respondent directed all students in the class to make laps around an outdoor basketball court by walking the white lines that define the outer boundaries of the basketball court. The temperature on April 15, 2010, was 81 degrees. The students were exposed to the sun while they were walking. Respondent required the students to carry or wear their backpacks while walking around the outdoor basketball court.1 According to Respondent, the students were required to walk around the basketball court until they calmed down. She had no idea how long the students would have to walk until they calmed down when she first directed them to start walking. All students in the class were required to walk without stopping for 32 minutes. A student who tried to put her book bag on the ground was told by Respondent to pick it up and keep walking. At the end of the 32-minute period, Respondent escorted the class back to the vicinity of Ms. Fuentes-Garcia's classroom and had the students walk in an orderly fashion to the playground, where they played games until approximately 2:54 p.m. There was a water fountain on playground, but it was not functioning on April 15, 2010. Water was available in a building adjacent to the playground. The students were not permitted to drink water between 2:00 p.m. and 2:54 p.m. At approximately 2:54 p.m. the students left the playground and entered the adjacent building to drink water. A video of the students walking the white lines of the basketball court was captured by the school's security cameras. In one portion of the video, a child can be seen dragging a backpack on the ground. It cannot be determined from the video whether the backpack had wheels. In another portion of the video, Respondent can be seen monitoring the students while standing in the shade of a tree. On April 16, 2010, Ms. Hernandez, the school principal, received complaints from four or five parents of students in the class. M.V., the mother of one of the students in the class, confronted Respondent about the incident on April 16, 2010. This parent testified, credibly, that Respondent told her that she had the class walk the white lines of the basketball court to calm them down and as punishment for being hyper. Following the complaints, the matter was referred to Petitioner's Civil Investigation Unit (CIU) where it was assigned to CIU investigator Terri Chester. Ms. Chester prepared a report after she concluded her investigation. Ms. Duboulay reviewed the report with Respondent in a Conference for the Record on June 8, 2010, and provided Respondent an opportunity to respond to Ms. Chester's report.2 Thereafter a Disciplinary Review Team convened and reviewed the case and concluded that probable cause existed that Respondent had committed the violations subsequently alleged in the Notice of Specific Charges dated September 23, 2010. The Disciplinary Review Team recommended that Respondent be suspended without pay for 30 days based on the totality of the circumstances of the case and the exposure of the students to harm. The manner in which Respondent disciplined her class on April 15, 2010, did not reflect credit on herself or on Petitioner. The manner in which Respondent disciplined her class on April 15, 2010, was inconsistent with her duty to "make reasonable effort to protect the student from conditions harmful to learning and/or to the student's physical health and/or safety."3 There was insufficient evidence to establish that Respondent "intentionally expose[d] a student to unnecessary embarrassment or disparagement." Petitioner followed all relevant procedures in prosecuting this disciplinary proceeding.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order sustain the suspension of Respondent's employment without pay for a period of 30 workdays. DONE AND ENTERED this 14th day of March, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 14th day of March, 2011.
The Issue The issues in this case are whether Respondent violated Section 231.28(1)(i), Florida Statutes (2000), and Florida Administrative Code Rule 6B-1.006(3)(a) and (e), by using unauthorized methods of disciplining a student before allowing the student to visit the school nurse. (All chapter and section references are to Florida Statutes (2000) unless otherwise stated. Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.)
Findings Of Fact Petitioner is the state agency responsible for regulating certified teachers in the state. Respondent holds Florida Educator's Certificate Number 416888. Respondent's Florida teaching certificate is valid through June 30, 2003. Respondent is employed as a Special Education Teacher at Moore Haven Junior High School (the "school") in the Glades County School District (the "District"). Respondent has a long-standing practice in his classroom of disciplining male students by making them do push-ups and hold books while their arms are extended in front of them. Both practices violate rules and policies of the school and the District. Respondent had actual or constructive knowledge that discipline by push-ups and holding books violated the policies of the school and the District. The student handbook distributed to each teacher, including Respondent, prescribed the authorized methods of discipline. None of the authorized methods included pushups or holding books. Respondent submitted some evidence that administrators in the school deviated from officially stated policies and rules by condoning unauthorized methods of discipline such as pushups or holding books. However, the evidence submitted by Respondent was less than a preponderance of the evidence and was adequately refuted by evidence submitted by Petitioner. All of the students in Respondent's class are exceptional education students. Each student has an identified disability. Any method of discipline other than that authorized by applicable policies and rules must be clearly stated and authorized in each student's individual education plan ("IEP"). C.W. was an exceptional education student in Respondent's class on February 9, 2000. The IEP for C.W. did not authorize any alternative methods of discipline. During class on February 9, 2000, Respondent approached C.W. because C.W. had his head on his desk during class. Respondent instructed C.W. to do his assignment. C.W. complained that he felt sick and requested to see the school nurse. Respondent and C.W. exchanged brief repartees. The evidence is less than clear and convincing that during the exchange Respondent prevented C.W. from going to the nurse's office. Some witnesses testified that Respondent refused C.W.'s request to go to the nurse's office. Other witnesses in the classroom during the exchange testified that Respondent initially instructed C.W. to go to the nurse's office but that C.W. refused either to go to the nurse's office or to do his assignment. The testimony of all of those witnesses was credible. Because C.W. refused to do his assignment in class, Respondent instructed C.W. to stand at the back of the class with his arms extended in front of him. C.W. complied with Respondent's instruction. Respondent successfully completed the alternative method of discipline that required C.W. to stand at the back of the class. However, Respondent failed to effectuate other unauthorized methods of discipline that Respondent attempted. When Respondent placed books in C.W.'s arms, C.W. did not hold the books in his arms. Rather, C.W. dropped his arms, and the books fell to the floor. When Respondent instructed C.W. to do push-ups, C.W. refused Respondent's instruction. C.W. left Respondent's classroom under his own volition and went to the office of the school nurse. The evidence does not reveal the amount of time that transpired between Respondent's initial instruction for C.W. to stand at the back of the class and the time when C.W. left for the nurse's office. Therefore, there is no evidentiary basis to quantify the delay in medical attention. When C.W. arrived at the nurse's office, the school nurse determined that C.W. was feverish, suffered chills, and that his complexion was "splotchy." The nurse telephoned C.W.'s parents. The parents took C.W. home and subsequently to the hospital. The examining physician at the hospital diagnosed C.W. as suffering from mastoiditis. The physician admitted C.W. to the hospital for two days and successfully treated the medical condition. The medical condition represented an exigent threat of harm to C.W.'s physical safety within the meaning of Rule 6B-1.006(3)(a). As previously found, however, the evidence is less than clear and convincing that Respondent violated Rule 6B-1.006(3)(a) by failing to make a reasonable effort to protect the student from a medical condition that was harmful to the student's physical safety. Conflicting evidence was less than clear and convincing evidence that Respondent delayed C.W.'s attempt to see the school nurse or the length of any delay allegedly caused by Respondent. C.W. left Respondent's class under his own volition and went directly to the nurse's office. The conflicting evidence was less than clear and convincing that any delay between Respondent's initial contact with the student and the student's departure to the school nurse was significant enough that Respondent failed to make a reasonable effort to protect C.W. from conditions harmful to the student's physical safety. The evidence is clear and convincing that Respondent violated Rule 6B-1.006(3)(a) by failing to make a reasonable effort to protect C.W. from conditions harmful to learning. The methods of discipline attempted by Respondent were harmful to C.W.'s ability to learn, violated C.W.'s IEP, and violated school policy. For the same reasons, Respondent violated Rule 6B-1.006(3)(e) by intentionally exposing a student to unnecessary embarrassment and disparagement. Administrative staff at the school conducted a full investigation of the matter. Upon conclusion of the investigation, the District issued a written letter of reprimand to Respondent. The letter of reprimand issued by the District is disciplinary action by Respondent's employer. The judicial doctrine of double jeopardy does not preclude disciplinary action by Petitioner against Respondent's license. No evidence shows that Respondent has any prior disciplinary history by either Petitioner or the District. Petitioner seeks to have Respondent's teaching certificate suspended for 12 months. However, Petitioner's proposed penalty is based on the premise that Respondent committed all of the allegations in the Administrative Complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding Respondent guilty of violating Section 231.28(1)(i) and Rule 6B-1.006(3)(a) and (e), and suspending Respondent's teaching certificate in Florida for six months. DONE AND ENTERED this 2nd day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ DANIEL MANRY 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 2nd day of February, 2001. COPIES FURNISHED: Ron Weaver, Esquire Ron Weaver & Associates 528 East Park Avenue Tallahassee, Florida 32301-1518 Kathleen M. Richards, Executive Director Educational Practices Commission Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Program Director Professional Practices Commission Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Carl Zahner, Esquire Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399 Moses N. Mwaura 214 Tenth Street Post Office Box 856 Moore Haven, Florida 33471
Findings Of Fact Respondent was an employee of the School Board of Dade County, Florida, more particularly a Title One teacher at Miami Carol City Senior High School during the 1981-1982 school year. On May 6, 1982, John Cohn was a student in Respondent's fourth period class. Arnold Coats was a substitute teacher working with Respondent in Respondent's classroom on that day. After Respondent had given the students an assignment, Cohn requested and received permission to leave the classroom to go to the bathroom. While absent from the classroom, Cohn decided he wished to speak with Ronald Golemhieski, another teacher at Miami Carol City Senior High School. Cohn returned to Respondent's classroom to request permission. Coats came to the door and gave Cohn permission to go talk to Golembieski, but Cohn decided he should get permission from Respondent since Respondent was the teacher of the class. Cohn waited in the doorway of Respondent's classroom. When he finally got Respondent's attention, he beckoned with his finger, requesting Respondent to come to the doorway. Respondent went to the doorway, and Cohn requested Respondent's permission to go talk to Golembieski. Respondent grabbed Cohn, pulling him forcefully into the classroom. Commotion broke out in the classroom, and someone yelled for assistance. Golembieski heard the commotion, as did Victoria Bell, the hall monitor. When they arrived at Respondent's classroom, Respondent and Cohn were struggling with each other. They were face to face, and Respondent had his arm around Cohn's neck with his hand on Cohn's throat in a choking manner. Golembieski grabbed Cohn away from Respondent and, after separating them, took Cohn to his classroom to calm him down. Bell and Coats pushed the rest of the students back into their seats and restored order in Respondent's classroom. When the altercation ended, Cohn's shirt was torn and he had scratches on his chest. Just prior to Respondent's outburst, Cohn did nothing to provoke Respondent in any way and was not disrespectful to Respondent. When Cohn got Respondent's attention, Respondent both looked at Cohn and walked to the doorway in a normal manner, thereby giving no warning that he intended to touch Cohn in any way. Respondent interpreted Cohn's beckoning with his finger as an invitation to fight, although Respondent admits that Cohn said nothing to him indicating that he wished to fight.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Notice of Charges, approving Respondent's suspension and dismissing him as an employee of the School Board of Dade County, and denying any claim for back pay. DONE and RECOMMENDED this 31st day of August, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1983. COPIES FURNISHED: Jesse J. McCrary, Jr., Esquire 3000 Executive Plaza, Suite 800 3050 Biscayne Boulevard Miami, Florida 33137 Ellen L. Leesfield, Esquire 2929 SW Third Avenue, Fifth Floor Miami, Florida 33129 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 NE Second Avenue Miami, Florida 33132
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against her, and, if so, what disciplinary action should be taken, if any.
Findings Of Fact Respondent holds Florida teaching certificate numbered 533966, covering the area of dental assistant on the vocational instructional level, which is valid through June 30, 1999. She holds a doctorate degree in community college teaching. Respondent began teaching at Miami-Dade Community College in 1979 and began teaching in the Dade County School System in 1983. In January of 1984 she began teaching at North Miami Senior High School and still teaches classes in health occupations at that school. At the start of the 1991-92 school year, Respondent was on maternity leave. She returned to work on April 1, 1992. Prior to Respondent's return to work, a substitute teacher was employed to cover Respondent's classes. The substitute teacher had never taught before. She telephoned Respondent several times a week for guidance and instructions. She did not have a code of conduct for students in the classes. The tests she administered to the classes were open book tests. Wendy Maisonet was a student in Respondent's second period medical skills class. During the 1991-92 school year and for the several years prior thereto Wendy had been warned, reprimanded, counseled, and suspended on a number of occasions both for cutting classes and for exhibiting defiance of school authorities. Wendy liked the substitute teacher because the students were allowed to do what they wanted in that teacher's class. When Respondent returned to work, she established a code of conduct for students in her classroom and enforced that code. Wendy did not like Respondent's methods of teaching, which included requiring the students to stay in their seats during class and not talk to each other. On April 7, 1992, Respondent gave Wendy a notice of unsatisfactory progress. On May 13, 1992, Respondent gave Wendy a second notice of unsatisfactory progress. Wendy believed that she never gave Respondent any problems in that class because, as she testified, she mostly slept during Respondent's class or just sat there and did nothing. On May 20, 1992, Wendy came to Respondent's class late. The class had already started when she came in. Wendy brought with her a petition which she had decided to circulate among the students in Respondent's second period class seeking to have Respondent fired because Wendy did not like Respondent's teaching methods or "her attitude." Wendy began circulating the petition during the class, which caused her to be in and out of her seat. She also talked back and forth with the other students, even those across the room from her, as the petition was being circulated. Respondent directed Wendy to be quiet. Respondent directed Wendy to stay in her seat. Wendy ignored those instructions. Thereafter, Wendy got up from her seat and walked across the room to retrieve her petition from Jose Perez. She talked to Jose and then began to return to her seat. As she was walking toward her seat with her petition in her hand, Respondent walked up to Wendy and took the paper from Wendy's hand. Respondent put the paper in her pocket, turned, and began walking away from Wendy. Wendy went after her, fully intending to take the paper back from Respondent. With both hands, she grabbed Respondent and held Respondent so firmly that Respondent could not move her upper body. Wendy then began shaking Respondent violently. Respondent was squirming and trying to break away from Wendy but could not. Respondent pleaded with Wendy to let her go, to get away from her, and to stop hurting her. Wendy continued shaking Respondent and would not release her hold. Respondent began crying, and she became afraid. Her heart started racing, and she felt dizzy. Respondent moved her head as though she were going to bite Wendy on the arm, and Wendy released her grip. Respondent did not bite Wendy. However, that trick made Wendy mad. She balled up her fists to punch Respondent, but one of the male students got between Wendy and Respondent. He stopped Wendy from striking Respondent and told Wendy to leave the classroom. Wendy then called Respondent "a fucking bitch", packed up her books, and left the classroom to go to the principal's office to complain about Respondent. Respondent summoned administrative personnel and the police. The police officer who arrived immediately after Wendy attacked Respondent interviewed both Respondent and Wendy. He examined Wendy's arms after Wendy accused Respondent of biting her, but Wendy's arms had no marks on them. At the final hearing, although Wendy testified that Respondent bit her, she admitted that it did not hurt and it did not leave a mark. On the other hand, Respondent showed administrative staff at the school the red marks on her upper arms caused by Wendy grabbing Respondent and holding her against her will. Those marks were still visible on Respondent's arms hours after the attack. Wendy was suspended for five days for her battery on Respondent. Wendy never returned to Respondent's class; instead, she had her mother come to the school and remove Wendy from that class. Respondent is 5 feet 4 inches tall. Wendy is 5 feet 8 1/2 inches tall. Wendy is quite overweight. Although Wendy testified she was not as overweight during the 1991-92 school year and only weighed 190 pounds at the time that she physically assaulted Respondent, the police report made on that date lists Wendy's weight as 237 pounds. Approximately a week to ten days after the attack, Respondent asked Mildred Hernandez, one of her second period students, to step outside the classroom so Respondent could speak to her for a moment. Respondent asked her if she had seen what happened on May 20, 1992. Mildred told Respondent what she had seen and also told Respondent that she had not been asked for a statement as part of the school's investigation. Respondent asked her if she would go to the assistant principal's office and tell the assistant principal what she had seen. Mildred told Respondent that she did not want to get involved and that the class was taking a test that period. Respondent gave her a pass to go to the principal's office and told her not to worry about the test because Respondent would give her an "A" on the test as long as she was at the assistant principal's office giving a statement. Respondent never asked Mildred to change her testimony. Respondent specifically asked her to tell the assistant principal truthfully what she had seen. By going to the assistant principal's office to give the statement, Mildred missed the rest of Respondent's class period and missed the beginning of her next class that day. Respondent knew that Mildred was an excellent student and did not think it was fair to make her miss the exam and then take a make-up exam when giving a statement was the reason for missing the exam. The substance of Mildred's statement and subsequent testimony was not related to receiving an "A" on that examination. After she gave her statement to the assistant principal, Respondent never discussed her statement with her, never asked her what had happened when she went to the assistant principal's office, and never again discussed the events of May 20, 1992, with her. Before Respondent returned to work from her maternity leave, Mildred had been receiving "A"s and "B"s in that class. For the nine-week grading period between Respondent's return to work and the end of the school year, Mildred received a "B" in Respondent's class.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against her in this cause. DONE and ENTERED this 24th day of June, 1994, at Tallahassee, Florida. LINDA M. RIGOT 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 24th day of June, 1994. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 93-5697 Petitioner's proposed findings of fact numbered 1-3, 7 and 11 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 4-6, 8-10, 13 and 14 have been rejected as not being supported by the weight of the competent evidence in this cause. Petitioner's proposed finding of fact numbered 12 has been rejected as being irrelevant to the issues under consideration in this cause. Respondent's proposed findings of fact numbered 1-17, 19-21, 23, and 25-27 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 18, 22, and 24 have been rejected as not being supported by the weight of the competent evidence in this cause. Respondent's proposed finding of fact numbered 28 has been rejected as not constituting findings of fact but rather as constituting argument of counsel. COPIES FURNISHED: Robert J. Boyd, Esquire Bond & Boyd, P.A. Post Office Box 26 Tallahassee, Florida 32302 William Du Fresne, Esquire Du Fresne & Bradley 2929 Southwest Third Avenue, Suite One Miami, Florida 33129 Karen B. Wilde, Executive Director Education Practices Commission The Florida Education Center, Room 301 325 West Gaines Street Tallahassee, Florida 32399 Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issued posed herein is whether or not the Respondent School Board of Dade County's reassignment of Petitioner/student, Valerie Patrice McDonald, from Miami Springs Junior High School to the Jan Mann Opportunity School North, should be upheld.
Findings Of Fact Valerie Patrice McDonald, Petitioner, is a student enrolled in the Dade County Public School System. Petitioner was enrolled in Miami springs Junior High School in August of 1978. Petitioner's guidance records indicates no serious behavioral problems and that her attendance at school is excellent. Her academic progress has been a steady B and C average since enrolling in the public school system. Petitioner was referred to the guidance office of Miami Springs Junior High School on numerous occasions during the 1978-1979 school year for various disciplinary problems. For example, on September 25, 1978, Petitioner was referred by her mathematics teacher for playing and not working in class. For this referral, she was counseled. Again, on October 25, 1978, she was referred by the social studies teacher for "being involved in a classroom disturbance with another student wherein pencils were broken, books were thrown out the window and the students began kicking each other. A parent conference was requested." On November 3, 1978, Petitioner was referred by the physical education teacher for "striking another student in the locker room for no apparent reason. Petitioner counseled and warned by principal." Again, on November 16, 1978, Petitioner was counseled for being loud and for refusing to remain quiet when requested. Petitioner was placed outside the classroom door by her English teacher. This pattern of disruptive behavior continued through March of 1979 when Petitioner was involved in a fire incident in the girl's physical education locker room. Based on this incident and the culmination of the prior behavioral problems, an administrative placement was requested by the school board for Petitioner to be assigned to the Opportunity School, which request was approved on April 3, 1979. Since that time, Petitioner has been attending the Jan Mann Opportunity School. Charles W. Bales, principal of Miami Springs Junior High School, testified that the assignment of Petitioner to the Opportunity School is beneficial inasmuch as it permits the student to utilize the benefits of smaller class settings, better individualized instruction; smaller class enrollments; better counselor to pupil ratio and basic educational program which enables a "disruptive" student to succeed in an individualized instructional setting. (TR 18-20) Testimony also reveals that the Opportunity School has a full-time visiting teacher who serves as the contact person for resolving any individual problems such as attendance or other behavioral problems for students at the Opportunity School. Ms. Helen Wilson, Petitioner's mother, requested that Principal Bales reassign Petitioner from three of her teachers due to matters which Ms. Wilson considered to be personal in nature. Principal Bales explained that there were approximately 1500 students at the school and that it was impossible for him to reassign students when personal differences of opinions exist between their teachers. Additionally, Principal Bales testified that students reassigned to the Opportunity School may request a transfer back to the regular school program following the close of the grading periods. Inasmuch as Petitioner has been attending the Jan Mann Opportunity School since March, 1979, it appears that she will be eligible for a reassignment to the regular school program provided that her grades, attendance, and behavioral pattern is such that she can function normally in the regular school program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner's petition filed herein be dismissed. Additionally, it is requested that the Respondent give full consideration to Petitioner's request that she be reassigned to the regular school program when such a request is properly filed with the school board. RECOMMENDED this 27th day of August, 1979, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1979. COPIES FURNISHED: Ms. Helen Wilson 3311 North West 52 Street Miami, Florida 33142 Michael J. Neimand, Esquire Dade County School Board Lindsey Hopkins Building Miami, Florida 33132
