The Issue The issue in this case is whether Respondent, Daniel Presmy, committed the violations alleged in the Recommendation for Suspension and Termination for Employment, and if so, what disciplinary action should be taken against him.
Findings Of Fact Daniel Presmy (hereinafter "Presmy" or "Respondent") has been a teacher for six years with Palm Beach County School Board (hereinafter "School Board"). He has always taught elementary students. Presmy has had no prior disciplinary action taken against him by the Superintendent of Palm Beach County School Board or the School Board. Presmy was a certified teacher in the School Board of Palm Beach County. On December 11, 2006, while in his classroom Presmy was teaching his third-grade class, and three students who were not students in his classroom showed up and disrupted the class. Presmy requested that the students leave his room. The students did not leave upon the initial request. One student informed Presmy that a student in the class had his eraser. Presmy then asked his class who had the eraser. Subsequently, an eraser flew to the front of the classroom and fell on the floor. Presmy picked up the eraser and handed the eraser to the student who had requested it. Presmy turned back to his class and was hit on the temple with the eraser. Presmy turned back around toward the student who he had given the eraser to and the student raised his hand. Again, Presmy told the student to leave. The student continued to stand in the middle of the doorway to Presmy's classroom and would not leave. While Presmy remained in his classroom, he used his fingertips to push the student's head and told the student (hereinafter "student victim") to "leave and don't come back here." Presmy "didn't think that [he] was doing anything wrong by telling him to leave with a gesture to leave." Presmy's reaction of touching the student was inappropriate. However, no evidence was demonstrated that the student was hurt during the incident. Presmy did not press the buzzer or contact and ask for any assistance regarding the incident because he didn't think it was necessary. On December 11, 2006, Officer Price was paged regarding the incident and she returned the call. She was informed that a student reported that he had been hit by a teacher at Roosevelt. Price interviewed the student victim and witnesses regarding the incident with Presmy. The School Board initiated an investigation into the incident. During the investigation, Respondent met with Detective Walton. Presmy told the investigator that he pushed the student victim in the head and told him to leave.2 The investigator concluded his investigation and presented the case to the State Attorney’s Office for review. As a result, Daniel Presmy was criminally charged with Battery as a violation of Florida Statutes. On August 2, 2007, Presmy pled guilty to the battery charge as a negotiated plea agreement so as not to put himself and his family through a lengthy trial and under the advice of his lawyer. His sentence was 45 hours community service, 12 weeks of anger management, 12 months of probation with early termination after six months and a $595 court fee. Petitioner alleges Respondent, by his conduct, violated School Board Policies 0.01, 1.013 and 3.12, and State Board of Education Rules 6B-1.001 and 6B-1.006. Subsequently, the School Board of West Palm Beach County at a meeting on October 24, 2007, voted to suspend Presmy without pay effective October 25, 2007, and initiated dismissal proceedings.
Recommendation Upon consideration of the Findings of Fact and the Conclusions of Law reached, it is RECOMMENDED that Palm Beach County School Board find Presmy had inappropriate physical contact with a student but apply the progressive disciplinary policy to determine his punishment. DONE AND ENTERED this 11th day of August, 2008, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY 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 11th day of August, 2008.
The Issue (1) Whether facts and circumstances demonstrate the existence, on August 20, 2019, of an immediate and serious danger to the health, safety, or welfare of the students of Championship Academy of Distinction at Davie, Inc.-5422 d/b/a "Championship Academy" ("Championship") justifying the immediate termination of its charter by the Broward County School Board ("School Board") pursuant to section 1002.33(8)(c); and (2) whether the School Board formulated one or more agency statements that constitute unadopted rules, in violation of section 120.54(1)(a), and applied one or more of those unadopted rules as the basis for its agency action immediately terminating Championship's charter.1 1 Championship's rule challenge petition, as filed, also challenged an adopted School Board rule under section 120.56(3). This challenge was abandoned at the beginning of the final hearing.
Findings Of Fact The Parties Championship is a Florida not-for-profit corporation that holds the charter for numerous charter schools throughout Florida, including in Broward County, Florida. Championship was the holder of the charter for Championship Academy of Distinction at Davie, Inc., the charter school for which the charter was immediately terminated by the School Board on August 20, 2019.4 Pursuant to Article IX, section 4 of the Florida Constitution, the School Board is the political subdivision that operates, controls, and supervises all district public schools in Broward County, Florida.5 3 CS for CS Senate Bill 7030 (2019) substantially amended section 1006.12, Florida Statutes, regarding safe-school officers. This legislation was published as chapter 2019-22, Laws of Florida (2019) and has been codified in numerous Florida Statutes, including section 1006.12. 4 For purposes of this Final Order, including the stipulated facts, all references to "Championship" are to the Championship Academy of Distinction at Davie, Inc., the charter school for which the charter was terminated on August 20, 2019. 5 The School Board is an educational unit, as that term is defined in section 120.52(6), and, therefore is an "agency" for purposes of chapter 120. Pursuant to section 1002.33(8), Florida Statutes, the charter termination proceeding is conducted pursuant to sections 120.569 and In Florida, charter schools are nonsectarian public schools that operate pursuant to a charter contract with a public sponsor. § 1002.33(1), Fla. Stat. In this case, the School Board is the sponsor for Championship. Stipulated Facts At a regularly scheduled meeting, the School Board approved a renewal Charter School Agreement (the "charter"), dated April 5, 2016, with Championship. The charter became effective on July 1, 2016, for a term of five years. At a regularly scheduled meeting on August 20, 2019, the School Board voted to immediately terminate Championship's6 charter pursuant to section 1002.33(8)(c). As the basis for its action, the School Board concluded that the particular facts and circumstances indicated that an immediate and serious danger to the health, safety, or welfare of Championship's students existed on that date, due to Championship's failure to comply with and implement the requirements of section 1006.12, by failing to arrange for the assignment of one or more safe-school officers for the protection and safety of students, school personnel, and property, without interruption, during all school hours of every school day, and for repeatedly allowing a licensed security guard other than a safe-school officer to possess a firearm on Championship's campus in violation of section 790.115(2)(a), Florida Statutes. The School Board's notice of termination of the charter was delivered to Championship on August 22, 2019. The first day of the 2019-2020 school year for the students at Championship was Wednesday, August 14, 2019. Students attended classes at Championship on Wednesday, August 14, through and including Friday, 120.57(1). Additionally, pursuant to section 1001.41(2), Florida Statutes, the School Board is required to adopt its policies pursuant to the rulemaking procedure in section 120.54. 6 In the Joint Prehearing Stipulation, the parties interchangeably refer to "Championship" and the "Charter School." For consistency, the stipulated facts in this Final Order are modified to refer to "Championship." August 16, 2019, and on Monday, August 19, through Thursday, August 22, 2019. Pursuant to section 1022.33(8)(c), Florida Statutes, the School Board assumed operation of Championship after it immediately terminated Championship's charter. On August 14, 2019, Championship had an armed security guard, rather than a safe-school officer pursuant to one of the four options authorized and required by section 1006.12, present on its campus. On August 15, 2019, Championship had an armed security guard, rather than a safe-school officer pursuant to one of the four options authorized and required by section 1006.12, present on its campus. On August 14, 2019, Detra Adams observed a person sitting behind the front desk at the Charter School. Championship's principal, Todd Dupell, told her that that person was an armed guard. On August 15, 2019, starting at approximately 2:37 p.m., a police officer from the Davie Police Department was present on Championship's campus. A police officer from the Davie Police Department was present on Championship's campus during all school hours on Friday, August 16, 2019; during all school hours on Monday, August 19, 2019; and during all school hours on Tuesday, August 20, 2019. On August 19, 2019, Broward County Schools Superintendent Robert Runcie, Leslie Brown, and School Board Deputy General Counsel Robert Vignola received a copy of an email dated August 16, 2019, from Davie Police Department Captain Christopher Chastain to Todd Dupell, stating, in part: We will meet with the Town Administrator Monday morning to finalize everything. In the interim[,] there will be an officer at your location on school days. We hope to have an approved agreement ready for signing by Monday afternoon which will provide you with what is being requested by the county. Runcie stated the following during the School Board meeting on August 20, 2019: "I know, I think it was late on Thursday afternoon, and certainly on Friday when we checked, there was a full-time officer there from the City of Davie." Brian Katz, the School Board's Chief Safety, Security, and Emergency Preparedness Officer, stated the following regarding whether the Charter School was in compliance with section 1006.12, during the School Board meeting on August 20, 2019: "as of today [August 20, 2019], they are." School Board member Nora Rupert stated the following regarding a written communication she received from the Mayor of Davie, Judy Paul, during the School Board meeting on August 20, 2019: The Mayor of Davie, Judy Paul, says there presently are Davie officers in the three Davie charter schools, and the executed agreement will be forwarded, specifically, Championship, excuse me, when completed today. We take care of our own, ["]we["] meaning their city. They've always been a very good, good partner with us. I asked if I could say this publicly, and she said yes. This is for the public record. I also forwarded it to the attorney, as well as the Superintendent the minute I received it, and just so my colleagues could have that information, I had to say it here. Vignola stated the following during the School Board meeting on August 20, 2019: If there's an officer there [at Championship] now and . . . if there is a representation from appropriate officials in the City [Town of Davie] that they see themselves as having a binding obligation to provide safe-school officer coverage with continuity, that goes to your threshold question of whether immediate termination is appropriate. The following exchange occurred between School Board member Laurie Rich Levinson and Vignola during the School Board meeting on August 20, 2019: Levinson: "So, Mr. Vignola, I know it's a difficult question, but legally, where are we? As of today, we are going to have an agreement with the Town of Davie that this school is covered, so as of today, we're not able to terminate a contract." Vignola: "If we get that representation from the city, I think that I would counsel voting against immediate termination." School Board member Donna Korn stated the following during the meeting of the School Board on August 20, 2019: "Do I believe that our decision will be overturned? Unfortunately, to the extent we have a very mixed message, I do." Vignola stated the following at the meeting of the School Board on August 20, 2019: Right now, today, they have, as I've been—it's been reported to me, they have a safe[-]school officer on campus today that would be compliant. As for what they have down the road, the law is not very clear as to an obligation. There's nothing in here that says have a contract in place. At an emergency meeting held on August 27, 2019, the School Board voted against immediately terminating its charter school agreement with The National Ben Gamla Charter School Foundation, Inc. ("Ben Gamla Charter School"), pursuant to section 1002.33(8)(c), concluding that the particular facts and circumstances did not indicate that an immediate and serious threat to the health, safety, or welfare of that charter school's students existed on August 27, 2019. The School Board was aware, at its August 27, 2019, meeting that the security guard at the Ben Gamla Charter School campus was not a certified guardian pursuant to section 1006.12. School Board member Dr. Rosalind Osgood stated the following during the August 27, 2019, meeting of the School Board regarding the Ben Gamla Charter School: It was a problem because there were not enough law enforcement officers in the whole state even available to meet the demands of the legislature, so we had to be very creative in the way that we made decisions to keep our kids in the traditional public schools safe[,] with requiring that they have military or law enforcement background and training, which again, we keep hearing limited the pool, but it's the . . . safest way that we can address it. Runcie stated the following during the meeting of the School Board on August 27, 2019, regarding the Ben Gamla Charter School: "[s]o I think they're [Ben Gamla Charter School] working to try to get to a point where they have a sustainable plan, but if they currently have a plan, no matter how short-term it is, and they're able to have a safe[-]school officer on campus, they're technically in compliance." Chief of the Plantation Police Department, W. Howard Harrison, stated during the meeting of the School Board on August 27, 2019, that the Plantation Police Department did not provide any officers for the campus of Ben Gamla Charter School on August 14 through 16, and August 26, 2019. A Plantation Police Department Officer was provided to Ben Gamla Charter School for half a day on August 19, 2019, and an officer from the Broward County Sheriff's Office provided coverage for August 27, 2019. The School Board did not designate, assign, or provide any safe-school officers at Championship for the 2019-2020 school year. Championship timely filed a Petition for Formal Administrative Hearings with the School Board, requesting an administrative hearing on the School Board's immediate termination of its charter. The School Board referred Championship's request for hearing to DOAH on September 11, 2019. Findings of Fact Based on Evidence at Final Hearing Safe-School Officer Statute In response to the tragic school shooting at Marjory Stoneman Douglas High School that occurred on February 14, 2018, the Florida Legislature enacted the Marjorie Stoneman Douglas High School Public Safety Act, a portion of which is codified at section 1006.12, the statute titled "Safe-school officers at each public school." Certain provisions of section 1006.12 have given rise to the matters in dispute in these consolidated proceedings. School Board Communications and Actions Regarding Charter School Compliance with Section 1006.12 On or about March 8, 2019, the Florida Department of Education ("DOE") contacted the School Board, requesting information regarding the status of compliance, by all public schools in the Broward County Public Schools District ("District"), including charter schools, with the statutory requirement in section 1006.12 for a safe-school officer to be present at each school. The request set a March 22, 2019, deadline for each school in the District, including charter schools, to provide that information to DOE. The School Board contacted all charter schools in the District, requesting that they provide the information requested by DOE by March 22, 2019. Championship did not provide the requested information by that date. The amendments to section 1006.12 enacted as part of SB 7030 became law on May 8, 2019. On May 15, 2019, Katz conducted an informational meeting with charter school personnel to inform them of the requirements of newly- amended section 1006.12, and to provide instructions to upload compliance documentation into the Charter.Tools application. Dupell attended the meeting. On June 28, 2019, Commissioner of Education Richard Corcoran sent a letter (the "Corcoran Letter") to the representatives of charter schools regarding compliance with newly-amended section 1006.12. The letter provided information regarding the options for meeting the requirement to have at least one safe-school officer present on campus while school is in session. The Corcoran Letter particularly addressed the expanded school guardian option codified at section 1006.12(3), and the new school security guard option codified at section 1006.12(4). The letter stated, in pertinent part: [E]very public elementary, middle, and high school in Florida, including all Florida charter schools, must have a Safe-School Officer (SSO) physically present on each campus while school is in session. . . . All charter schools without current [safe-school officer] coverage have until August 1 to come into compliance for the 2019-2020 school year For those charter schools that choose to treat our requests for information as optional, our only option going forward will be to use the full extent of the law to ensure compliance. On July 9, 2019, Katz and Leslie Brown, the School Board's Chief Portfolio Officer, issued a memorandum directed to the charter schools in the District. The memorandum stated: "[t]he statute requires each charter school to implement one of the safe-school officer options." The memorandum listed the options and explained that the first three options, with some legislative revisions, had been available to charter schools in the 2018-2019 school year. The memorandum further stated: [t]he School Board has taken no action to deny any charter school access to any of the safe-school officer options summarized above and more fully detailed in [s]ection 1006.12, Florida Statutes." Citing the Corcoran Letter, the memorandum stated, in boldface type: If one of the Safe[-]School Officer options is not confirmed by your location by August 1st,[2019,]such facts and circumstances will be considered by your charter school sponsor to present an immediate and serious danger to the health, safety, or welfare of your charter school's students. Please be advised that, under those circumstances, the school district will request the School Board of Broward County, Florida, to "use the full extent of the law[,]" as urged by Commissioner Corcoran and immediately terminate your charter agreement pursuant to [s]ection 1002.33(8)(c), Florida Statutes. July 9, 2019, memorandum, Exhibit JE-4 (emphasis added). From this memorandum, it is apparent that the School Board interpreted the phrase "use the full extent of the law," as referenced in the Corcoran Letter, to mean immediately terminating a noncompliant charter school's charter. In so stating, the School Board was not merely following guidance set forth in the Corcoran Letter—which did not mention immediate termination of a charter as a sanction for noncompliance with section 1006.12—but, instead, was articulating its own sanction, which it would impose for noncompliance with section 1006.12.7 The memorandum further stated: "[p]lease upload into Charter.Tools, under the benchmark entitled Senate Bill 7030, the attached form and pertinent documentation that confirms that your implemented Safe[-]School Officer option is in compliance with [s]ection 1006.12, Florida Statutes, for the 2019-2020 school year. This documentation is due by August 1, 2019." On July 31, 2019, the School Board sent a follow-up email to the principals of the charter schools in the District, reminding them of the August 1, 2019, deadline. 7 To this point, in response to an email from Broward County Public Schools Superintendent Robert Runcie dated August 15, 2019, Corcoran counseled against immediate charter termination to sanction noncompliant charter schools, recommending instead that the District take immediate steps to provide safe-school officer coverage at a noncompliant charter school, followed by steps to ensure that the school maintained coverage and implemented a long term solution. The School Board conducted another meeting with charter school principals on August 1, 2019, at which Katz highlighted the four safe-school officer options available under section 1006.12, and reminded the charter school principals of the School Board's position that charter schools were solely responsible for establishing and assigning one or more safe-school officers for their campuses. Championship did not meet the August 1, 2019, deadline to upload the safe-school officer documentation into Charter.Tools. Katz testified at the final hearing that the School Board did not establish or assign any safe-school officers at any charter schools in the District, including Championship, in the 2019-2020 school year. Actions Taken by Championship Regarding Safe-School Officer Requirement in 2019-2020 School Year On Friday, August 2, 2019, Linda Williamson, office manager for Championship, emailed Lieutenant Patricia Ravine of the Davie Police Department regarding obtaining a school guardian while Championship's security guard was in training to become certified as a School Guardian. Ravine told her that the Broward County Sheriff's Office ("BSO") was in the process of developing the guardian program, and that the Davie Police Department had a contract with the School Board for all 13 of its school resource officers to be assigned to the 12 traditional public schools in Davie. Ravine suggested that Championship contact a security agency, and she also suggested, as an alternative to a temporary guardian, that Championship secure the services of a Davie Police Department private duty detail officer. On or about Friday, August 9, 2019, Championship submitted a Private Duty Detail Application ("Application") to the Davie Police Department, requesting private duty detail officer coverage for Championship from 7:30 a.m. to 3:30 p.m. for each school day, beginning on August 14, 2019, and ending on September 28, 2019. Private duty detail coverage consists of voluntary coverage by off-duty police officers whose presence is not guaranteed by the police department. To that point, the Application states, in pertinent part: "[e]very reasonable effort will be made to fill the detail request, but there is no guarantee that it will be filled. Members of the Davie Police Department, who are authorized to work Private Duty Detail, do so voluntarily during their off duty hours." The first day of the 2019-2020 school year for District schools, including Championship, was August 14, 2019. On August 14, 2019, the Davie Police Department did not send a private duty detail police officer to provide safe-school officer services to Championship, and Championship did not have any other persons qualified under any of the safe-school officer options in section 1006.12 present on its campus that day. On August 14, 2019, Championship did have present on its campus an armed security guard, Steven Carbone, who Championship had hired to provide school safety services on its campus. Although Carbone had not yet completed the school guardian training program, he met the other safe-school officer requirements set forth in section 1006.23, including having completed a psychological evaluation which indicated that he was suitable for the position, and holding Class D and Class G licenses under chapter 493, Florida Statutes. Additionally, Carbone was trained regarding domestic and foreign terrorism, explosives, improvised explosive devise recognition, and identification of hazardous materials. Detra Adams, Curriculum Supervisor of Secondary Literacy for the District, visited Championship's campus on August 14, 2019. She did not view a safe-school officer who met the requirements of section 1006.12 on Championship's campus that day. However, she did observe a person at the front desk wearing a security uniform and bearing a firearm. That person ultimately was identified as Carbone. Adams met with Dupell, who told her that Championship had procured the service of an armed security guard (Carbone) who was present on campus that day. Dupell acknowledged that Championship had not submitted the required documentation to the District to have an armed security guard on campus. He told Adams that Carbone was registered for a school guardian training program8 and that once he completed the training, Championship would submit the certification documents to the District. Dupell also told Adams that Championship had arranged for a Davie private duty detail police officer to be present at the school on some, but not all, school days. On August 15, 2019, the Davie Police Department did not send a private duty detail police officer to provide safe-school officer services to Championship, but did send an on-duty police officer who arrived shortly before the end of the school day. Donte´ Fulton-Collins, Director of the Charter Schools Management Support Department for the District, visited Championship's campus on August 15, 2019, and did not observe a safe-school officer meeting the requirements of section 1006.12 on campus that day. However, she did observe an armed security guard on that date. That person ultimately was identified as Carbone. Katz, along with Damien Kelly of the DOE Safe Schools Office, visited Championship's campus on August 15, 2019, to discuss with Dupell the need for Championship to secure the services of a safe-school officer who met the requirements of section 1006.12. At that meeting, Dupell provided documentation to Katz showing that Championship had filed the Application with the Davie Police Department, 8 On July 31, 2019, Championship entered into an agreement with the BSO to provide Carbone training to serve as a safe-school officer pursuant to the Aaron Feis School Guardian option under section 1006.12(3). The training course was only offered every three months, so when Carbone was hired to fill the safe-school officer position at Championship, the soonest he could obtain training by BSO was early September 2019, after the 2019-2020 school year had begun. requesting to have private duty detail officer coverage until Carbone could complete the training to satisfy the requirements for certification as a school guardian under section 1006.12(3). Dupell also provided Katz a list of dates for which Davie Police Department had signed up to provide private duty detail coverage at Championship between August 14 and September 28, 2019. Katz observed that for many of the shifts on school days during that period, no officers had signed up to provide coverage at Championship. In sum, for the first two days of the 2019-2020 school year, Championship was not in compliance with section 1006.12 because it did not have present on its campus an individual who met the statutory requirements to serve as a safe-school officer. Championship does not dispute that it was not in compliance with section 1006.12 on those days. For the first two days of the 2019-2020 school year, Championship did have an armed security guard, Carbone, who had been hired by Championship specifically to provide school safety services to protect the health, safety, and welfare of its students. As discussed above, although Carbone had not yet been trained as a school guardian, he met the other requirements to be a school guardian. Pursuant to an electronic mail exchange between Championship and Ravine on the afternoon of August 15, 2019, the Davie Police Department guaranteed police officer coverage for Championship's campus, for the full school day, on all the days requested in the Application for which no private duty detail officer had volunteered. Thus, by the afternoon of August 15, 2019, Championship had secured guaranteed police officer coverage from the Davie Police Department—albeit not pursuant to a fully-executed contract. Pursuant to this informal arrangement, a police officer from the Davie Police Department was present and provided safe-school officer services on Championship's campus for the entire school day on August 16 and 19 through 22, 2019. On Wednesday, August 22, 2019, Championship and the Town of Davie, Florida, executed a Safe School Officer Agreement ("SSO Agreement") for a term commencing on August 14, 2019, and ending no more than 90 days later. Article 2 of the SSO Agreement states, in pertinent part, T[own] shall assign a certified police officer to serve as a [Safe School Officer ("SSO")] at the charter school for a period not to exceed the school year [(sic)] to allow C[harter] to otherwise become compliant with the [c]hapter 2019-22, Laws of Florida (2019) . . . . The certified police officer assigned to the school will be working in an overtime capacity. There is no guarantee that the same officer will work at the school on a daily basis. The parties agree that this does not include any after[-]hours activities, sports programs, aftercare, etc. Assignment of SSOs. The Town may change the law enforcement officer assigned to participate as a[n] SSO at any time during the Agreement. Unless precluded by emergency circumstances, the T[own] shall at all times maintain an SSO on duty during those regular school hours. "Regular school hours" shall be defined as the respective [p]articipating school's posted bell schedule. Wherever possible, the T[own] shall assign a replacement SSO during the time that the assigned SSO is absent when students are required to be in attendance during regular school hours. Pursuant to the SSO Agreement, the Town of Davie guaranteed police officer coverage for Championship for every school day during regular school hours, commencing on August 14, 2019, and ending no more than 90 days later. This coverage was to be provided by private duty detail officers when available, and if no private duty detail officers were available, safe-school officer coverage would be provided by an on-duty police officer. Because the SSO Agreement was not fully executed until August 22, 2019, and because no private duty detail officers had volunteered to provide safe-school officer coverage at Championship on August 14 and 15, 2019, the Davie Police Department did not provide coverage on those dates. However, as found above, pursuant to the informal arrangement for private duty detail coverage that Championship had made with the Davie Police Department on August 15, 2019, a Davie police officer was physically present and provided safe-school officer services on Championship's campus on August 16 and 19 through 22, 2019. Thereafter, the Davie Police Department provided safe-school officer services to Championship under the SSO Agreement for the rest of the 2019- 2020 school year, until all District schools were closed in March 2020 due to the COVID-19 pandemic. Other School Safety Measures Taken by Championship Cynthia Dotson, Chief Executive Officer of the management company who provides services to small charter schools, including Championship, testified regarding the measures that Championship has implemented on its campus to protect the health, safety, and welfare of its students and staff. The Championship campus is located in a fenced facility within a small business park in a cul-de-sac. The school has one point of ingress and egress for the public, and additional means of ingress and egress for the provision of fire, life, and safety support services. Championship screens persons entering the campus through a software application used to determine whether that person has a criminal record. It also utilizes a video camera system to provide surveillance of the interior and exterior of the campus, an audio communication system consisting of an intercom system and walkie-talkies, and a software application through which faculty members can report suspicious activity to the appropriate authorities. Additionally, Championship has hired a retired SWAT team to train all of its employees to respond to active assailant situations on campus in order to mitigate any threat and prevent injury and loss of life. To this end, Championship conducts monthly code red drills in both the summer months and the school year. Before the 2017-2018 school year, Championship hired a school security guard, Yoan Herrera, to provide school safety services to its campus. Herrera became certified by the BSO on November 15, 2018, to serve as an Aaron Feis Guardian on Championship's campus.9 He provided those services to Championship until approximately mid-March 2019. After Herrera left his position, Championship retained the temporary services of the King Security Agency ("King") to provide school security services while it searched for a replacement school security employee. After an exhaustive search that yielded very few qualified applicants, Championship hired Carbone to fill the school security guard vacancy. Carbone had been an employee of King and had provided school security services to Championship during the last few months of the 2018-2019 school year. As noted above, Carbone's psychological evaluation indicated that he was suited for the position. Additionally, he had training regarding domestic and foreign terrorism, explosives, improvised explosive device recognition, and identification of hazardous materials, and he also held Class D and Class G licenses. After Championship hired Carbone, he was immediately enrolled in the Aaron Feis School Guardian certification program offered by the BSO. However, due to the high demand for such training and limited program 9 Notably, even though Herrera was present on Championship's campus while carrying a firearm for the entire 2017-2018 school year and a portion of the 2018-2019 school year, and for part of that time, provided school security services in a capacity other than as a safe- school officer pursuant to section 1006.12, no evidence was presented at the final hearing showing that the School Board considered Herrera's presence on Championship's campus as constituting a violation of section 790.115(2), warranting immediate termination of Championship's charter. offerings, Carbone was unable to begin the training before early September 2019. Thus, assuming he successfully completed the program, he would not have been certified as a school guardian pursuant to section 1006.12(3) until October 2019. Ultimately, Carbone did not successfully complete the training program. Additionally, on August 19, 2019, Championship hired Andre Chambers to serve as a safe-school officer at its campus. At the time Chambers was hired, he already was certified as an Aaron Feis School Guardian pursuant to section 1006.12(3). He began providing safe-school officer services on Championship's campus in September 2019, and did so until all District schools, including Championship, were closed in March 2020 due to the COVID-19 pandemic. School Board's Immediate Termination of Championship's Charter As a result of Championship's failure to have a safe-school officer meeting the requirements of section 1006.12 on its campus on August 14 and 15, 2019, School Board personnel prepared an agenda item recommending immediate termination of the Charter for consideration at the School Board's next regular meeting, scheduled for August 20, 2019. At the final hearing, Brown and Katz testified that the School Board determined that Championship's failure to have, on campus, a safe-school officer who met the requirements of section 1006.12, constituted an immediate and serious danger to the health, safety, or welfare of Championship's students, which commenced on August 14, 2019, and continued through August 20, 2019, when the School Board immediately terminated Championship's charter. Brown acknowledged that the School Board was aware that as of August 16, 2019, Championship had a police officer from the Davie Police Department physically present on its campus. She testified that this did not change the School Board's position that an immediate and serious danger to the health, safety, or welfare to Championship's students existed. As she put it: [t]he services were piecemeal, there was nothing that we could depend on, nothing had been established and nothing had been assigned. . . . There was no evidence that [having a Davie police officer on campus] was going to be the case as each—each minute or hour or day that was going to continue. Katz and Brown also testified that the School Board interpreted section 1006.12 as requiring a charter school to have in place a fully-executed contract for a safe-school officer in order to meet the statute's requirement that a safe-school officer be "established and assigned" to the school. To this point, Katz testified that having a Davie Police Department police officer present on campus would not, by itself, meet the safe-school officer requirement, because an executed contract "establishing" the presence of the officer also is required by the statute. He stated: "I believe both things are necessary, the agreement and presence. A fully[-]executed contract and presence [J]ust to be clear, a contract that states that there will be coverage, not a contract that says there may be coverage."10 Katz and Brown also testified that the School Board interprets section 1006.12 as placing the responsibility solely on the charter school to secure a safe-school officer for its campus. To this point, Katz testified that the School Board has "always believed that they [charter schools] were responsible for . . . assigning or establishing a safe school officer for every one of their schools." 10 In the stipulated facts set forth above, Katz stated, in response to a question from a School Board member at the August 20, 2019, meeting, that if Championship had a law enforcement officer present on its campus on that day, it was in compliance with section 1006.12. At the final hearing, Katz testified at the final hearing that this statement assumed the existence of a fully-executed contract on that date. As discussed above, the evidence establishes that the SSO Agreement was not fully executed until August 22, 2019. Brown testified that the School Board views Florida law as prohibiting the District from assigning a safe-school officer to a charter school. To that point, she testified that if a charter school wished to secure the services of a school resource officer under section 1006.12(1) to meet the safe-school officer requirement, the charter school would have to directly contract with the law enforcement agency to do so.11 Further to this point, Katz testified that the School Board did not have the authority to assign a law enforcement officer whose services are contracted by the District to provide safe-school officer coverage on a charter school's campus.12 Both Brown and Katz testified that the School Board met the requirement in section 1006.12 to "collaborate with charter school governing boards to facilitate charter school access to all safe-school officer options available" by providing information, presentations, and training to charter schools regarding the statute's safe-school officer requirements and available options for meeting those requirements. Katz acknowledged at the final hearing that Championship having an armed security guard who was not a safe-school officer present on its campus to provide school security services did not pose an immediate and serious danger to the health, safety, or welfare of the students at Championship. Fulton-Collins testified that she assisted in preparing the School Board agenda item recommending the immediate termination of Championship's charter because, as she put it: 11 Section 1006.12(1), establishing the school resource officer option, states: "A school district may establish school resource officer programs through a cooperative agreement with law enforcement agencies." § 1006.12(1), Fla. Stat. (emphasis added). Notably absent from this provision is language authorizing charter schools to do so. 12 Section 1002.33(12)(a) states: "A charter school shall select its own employees. A charter school may contract with its sponsor for the services of personnel employed by the sponsor." § 1002.33(12)(a)(emphasis added). This provision appears to authorize a school board to contract with a charter school to establish or assign a safe-school officer at the charter school, pursuant to a partnership between the school board and a law enforcement agency or security agency as provided in the first sentence of section 1006.12. all charter schools must be in compliance with any requirements that the Legislature has deemed to be necessary to protect the health, safety, and welfare of the students. The Legislature specifically found in section 1006.12 . . . that the establishment or assignment of a safe school officer on a charter school campus is necessary for the protection of school personnel, property, students, and visitors. And by failing to do so, failing to establish and assign a safe school officer on the campus, Championship created an immediate and serious danger to the health, safety, and welfare of its students. Fulton-Collins testimony, T. Vol. I, p. 192. Fulton-Collins acknowledged that section 1006.12 does not expressly state that charter schools are responsible for establishing and assigning their own safe-school officers.13 However, she maintained that charter schools are solely responsible for establishing and assigning safe-school officers for their own campus, and that the School Board's duty is "not impeding [them] on any opportunity that they have to secure a safe-school officer." Broward County Public Schools Superintendent Robert Runcie confirmed that the School Board interprets section 1006.12 as placing the sole responsibility on charter schools to secure their own safe-school officers. To this point, Runcie testified: " [j]ust as we [the District] go and secure [safe- school officers], by any means necessary, to have them on our campuses, [charter schools] are also required to go and use whatever means they can to secure them." Runcie also confirmed the School Board's position, articulated by Katz and Brown, that for charter schools to be in compliance with section 1006.12, a person meeting the requirements of one of the safe-school officer options 13 Notably, during the 2019 Legislative Session, the Legislature expressly rejected an amendment to SB 7030 that would have amended the first sentence of section 1006.12 to also require "charter schools, as applicable" to establish and assign one or more safe-school officers at its school facility. must be physically present on the school campus for the entire school day, and a fully-executed contract must exist, guaranteeing the presence of the safe-school officer on the campus each school day, for the full term of the contract.14 Runcie testified that the School Board interprets the terms "establish and assign" to require that both of these conditions be met for the charter school to be in compliance with section 1006.12. He acknowledged that section 1006.12 does not expressly state that a fully-executed contract is required for compliance with the statute.15 To this point, he testified: [t]he statute, itself, may not specify a contract. It says what you are required to do. And the reason why it doesn't specify a contract is that there are several means to do it. There are some school districts, like Miami, I believe Palm Beach may be similar, but there's a handful of them where they actually have their own police force. So they're not going to have a contract in order to meet that[.] So the legislation is not going to be that specific because there's varying ability in how school districts and charter schools go about securing safe- school officers. So it wouldn't have that . . . degree of specificity. Runcie testimony T., Vol. II, pp. 44-45. Further to this point, Runcie testified: It [(the statute)] doesn't specifically require that, but the—so, again, the statute speaks to multiple 14 Runcie testified that in the School Board's view, section 1006.12 does not require an executed long term contract, such as a school-year-long contract, securing safe-school officer services; rather, the School Board interprets the statute as requiring a fully-executed contract that guarantees continuous presence of a safe-school officer on campus for the duration of the contract's term, whatever that term is. 15 See paragraph 243, below. To the extent a statute does not specify the precise means by which it is to be implemented, rulemaking may be necessary in order for an agency to implement the statute. See § 120.52(16), Fla. Stat. (defining "rule" as a statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits information not specifically required by statute or by an existing rule). avenues, multiple ways of securing a safe-school officer. A couple of those don't require a contract. Again, if you have your own police force or you're using an armed guardian. So, for example, we actually have some schools that we have put in our detectives from our school investigative unit when we needed to. So we have 15, 20 police officers, if you will. So some districts, their whole entire system, they have their own police department. Or you can hire an individual, put him through the guardian program, have them become certified. Outside of doing those two things you would actually have to have a contract or some types of established agreement, an arrangement to be able to fulfill that. Runcie testimony, T. Vol. II, pp. 58-59. The School Board terminated Championship's charter on August 20, 2019, because Championship did not have a safe-school officer present on its campus for the first two days of the 2019-2020 school year, and because as of August 20, 2019, Championship did not have a fully-executed contract with the Town of Davie guaranteeing the presence of a police officer to serve as a safe-school officer on Championship's campus; thus, the School Board considered these circumstances to constitute an immediate and serious danger to the health, safety, or welfare of the students at Championship, warranting immediate termination of the charter pursuant to section 1002.33(8)(c). Safety-Related Circumstances on Championship's Campus in the 2019- 2020 School Year Three parents of students who attended Championship in the 2019-2020 school year testified regarding the safety-related circumstances on Championship's campus at the beginning of the school year leading up to the School Board's termination of Championship's charter on August 20, 2019. Specifically, Anne-Valerie Daniel-Laveus, the mother of three students enrolled at Championship during the 2019-2020 school year and a teacher at Championship during that school year, testified that she observed a school security guard present at the school every day. In her experience as a teacher at Championship and as a mother whose children were enrolled there, she perceived conditions at Championship as being safe. To that point, no other parents or students relayed to her any concerns they had regarding safety at Championship at any time during the 2019-2020 school year, including on August 14 through 20, 2019. She was not aware of any incidents, threats, or weapons-related incidents having taken place at Championship at any time during the 2019-2020 school year. Sandra Acosta, the mother of a student enrolled at Championship, testified that she took her child to school daily during the 2019-2020 school year, that she always saw a security guard present on campus when she did so. She always felt that her child was safe at Championship, and that she was not aware of any incidents in which the safety of the students at Championship was threatened. Melissa Bustamante, the mother of two students enrolled at Championship during the 2019-2020 school year and a member of Championship's governing board since 2011, also testified regarding conditions at Championship during the 2019-2020 school year, including on the school days between August 14 and 20, 2019. Specifically, when she took her children to school, she always observed a security guard at the front of the school, which is the only publicly-accessible entrance to the school facility. She was not aware of any bomb threats, weapons threats, or trespassing by unauthorized persons on Championship's campus during the 2019-2020 school year, nor was she aware of any parents of Championship students having expressed concerns regarding safety-related matters at the school during the 2019-2020 school year. As a member of Championship's governing board, she verified that the school had secured the presence of a Davie police officer on campus before, and for some time after, the charter was terminated, and also had secured a school guardian (Chambers) to serve as a safe-school officer for the remainder of the 2019-2020 school year. No evidence was presented showing that there were any actual or imminent threats or dangers to the health, safety, or welfare of the students at Championship on any school days between August 14 and 20, 2019. Additionally, no evidence was presented showing that the presence of Carbone, who had been hired by Championship specifically to provide school safety and security services and who provided those services, presented a threat or danger to the students at Championship on August 14 through 16, 19, and 20, 2019. To the contrary, the witnesses who observed Carbone testified that he was at the front entrance to the school performing his school protection duties. None of them testified that they perceived him as a threat or saw him threatening or endangering the students, and all of them testified that his presence was one reason they perceived Championship's school campus as being safe. Additionally, as noted above, Katz conceded at the final hearing that Championship's having an armed security guard on campus to provide school security services on August 14 through 16, 19, and 20, 2019, did not present an immediate and serious danger to Championship's students. Championship's Standing The School Board took action on August 20, 2019, to immediately terminate Championship's charter, pursuant to section 1002.33(8)(c). Although the School Board subsequently operated Championship for the 2019-2020 school year while these proceedings were pending, if the School Board were to prevail in Case No. 19-4818, Championship's charter would be permanently terminated and the charter school could no longer operate. Thus, the School Board's immediate termination of Championship's charter has caused Championship to suffer an immediate, direct injury that is within the scope of these proceedings, which are brought under sections 1002.33 and 1006.12. Additionally, as discussed below, the School Board applied unadopted rules to Championship in these proceedings to terminate its charter. Findings of Ultimate Fact Immediate Termination of Charter under Section 1002.33(8)(c) Championship's Noncompliance with Section 1006.12 did not Cause Immediate and Serious Danger to Its Students Pursuant to the foregoing, it is found, as a matter of ultimate fact, that the School Board did not prove, by clear and convincing evidence, that an immediate and serious danger to Championship's students was in existence on August 20, 2019, when it immediately terminated Championship's charter. The School Board contends that Championship's failure to have present on its campus a person who met the statutory qualifications for serving as a safe-school officer on August 14 and 15, 2019, coupled with its failure to have a fully-executed contract securing the services of a safe-school officer for Championship by August 20, 2019, constituted an immediate and serious danger to the health, safety, or welfare of Championship's students warranting immediate termination of its charter, pursuant to section 1002.33(8)(c). However, the School Board presented no evidence of any particular facts and circumstances showing that an immediate and serious danger to Championship's students was in existence on August 20, 2019—whether due to Championship's failure to have a person on campus who met the statutory qualifications for serving as a safe-school officer plus a fully-executed contract securing the services of a safe-school officer for Championship, or for any other reason. To that point, there was no evidence presented showing that there were any threats or actions constituting a threat—such as bomb threats, trespassing by unauthorized persons, armed persons presenting a danger or threat, or any other circumstances on Championship's campus that existed on August 20, 2019—or on any other school day in the 2019-2020 school year, for that matter. To the contrary, Championship presented the testimony of three witnesses stating that to their knowledge, there had been no threat or danger whatsoever to Championship's students at any time during the 2019-2020 school year, including on the school days before and including August 20, 2019. Each of these witnesses was in a position to have personally known whether, or be informed if, there had been any actual, immediate threat or danger to the health, safety, or welfare of Championship's students. The very most that may be inferred from the evidence is that not having a person who was qualified as a safe-school officer on campus may have presented a potential threat to Championship's students on August 14 and 15, 2019. However, even such a potential threat—to the extent it may have existed—was substantially diminished by the presence of a trained, armed security guard who had been hired specifically to provide protection to the students, faculty, and staff on campus, and who had satisfied most of the requirements, including the psychological evaluation, to become certified as a school guardian. Further, starting on August 16, 2019, a Davie police officer was present and provided safe-school services on Championship's campus every day for the rest of the school year, including on August 20, 2019, when the School Board immediately terminated Championship's charter. There is no dispute that these law enforcement police officers met the qualifications expressly stated in section 1006.12 to serve as safe-school officers. Therefore, as of August 16, 2019, the only remaining ground for the School's Board's conclusion that an immediate and serious danger existed on Championship's campus warranting immediate termination of its charter was that a contract securing the guaranteed presence of a safe-school officer on Championship's campus had not yet been fully executed. However, no evidence was presented showing that Championship's failure to have a fully-executed contract for a safe-school officer constituted any danger—much less an immediate and serious danger—to its students. Accordingly, there was no factual or circumstantial basis for finding that an immediate and serious danger to Championship's students existed on August 20, 2019, when its charter was terminated. Based on the foregoing, it is found, as a matter of ultimate fact, that the evidence failed to establish the existence of an immediate and serious danger to Championship's students on August 20, 2019, as a result of Championship not having a safe-school officer on August 14 and 15, 2019. Additionally, it is found, as a matter of ultimate fact, that the evidence failed to establish the existence of an immediate and serious danger to Championship's students on August 20, 2019 (or on August 14 through 16, and 19, 2019), as the result of Championship not yet having secured a fully- executed contract guaranteeing the presence of a safe-school officer on Championship's campus. Presence of Armed Security Guard Did Not Constitute an Immediate and Serious Danger As previously discussed, no evidence was presented showing that Carbone presented any threat or danger to the students at Championship on August 14 through 16, 19, or 20, 2019. The witnesses who observed him on those days testified that he performed his school protection duties, and he did not threaten or endanger Championship's students. Additionally, the evidence establishes that the school security and protection services that Carbone provided on Championship's campus on these days were school-sanctioned activities. To that point, Championship hired Carbone for the specific purpose of providing school security services to its students. As such, Carbone was given express permission by Championship's governing board to be on campus specifically to provide school security services to enable and support school-related activities. Based on the foregoing, it is found, as a matter of ultimate fact, that the presence of the armed security guard on Championship's campus on August 14 through 16, 19, and 20, 2019, did not constitute an immediate and serious danger to the health, safety, or welfare of Championship's students warranting the immediate termination of its charter under section 1002.33(8)(c). Unadopted Rules Applied to Championship to Terminate Charter Section 120.57(1)(e)1. states, in pertinent part: "[a]n agency or administrative law judge may not base agency action that determines the substantial interests of a party on an unadopted rule." This provision prohibits an ALJ or an agency from basing agency action that determines the substantial interests of a party on an unadopted rule. Because this statute is directed at, and specifically circumscribes, the authority of the ALJ, or the agency, as applicable, neither the ALJ nor the agency is authorized to base agency action on an unadopted rule, regardless of whether a party has alleged that a particular agency statement constitutes an unadopted rule. The evidence establishes that in immediately terminating Championship's charter, the School Board determined Championship's substantial interests based on two unadopted rules. Unadopted Rule Interpreting Section 1002.33(8)(c) The evidence shows that the School Board has determined that the failure of a charter school (in this case, Championship) to have, on campus, a safe-school officer who meets the requirements of section 1006.12, to constitute an immediate and serious danger to the health, safety, or welfare of the charter school's students, warranting immediate termination of the school's charter. In so determining, the School Board has interpreted section 1002.33(8)(c)—specifically, the first sentence of that statute16—to define a charter school's failure to comply with section 1006.12 as per se constituting an immediate and serious danger to the health, safety, or welfare of the school's students. This interpretation ascribes a meaning to the first sentence of section 1002.33(8)(c) that is not readily apparent from the literal reading of the statute. Indeed, the first sentence of that section specifically speaks to the "particular facts and circumstances" showing that an immediate and serious danger to the health, safety, or welfare of the charter school's students exists. Thus, the statute's plain language requires that the particular facts and circumstances of each particular case be considered to determine whether those particular facts and circumstances constitute an immediate and serious danger that exists at the time the charter is immediately terminated. Nowhere does the statute's plain language speak to, or authorize, a school board to formulate a categorical determination that a defined set of facts and circumstances—here, noncompliance with section 1006.12—per se constitutes an immediate and serious danger to the charter school's students. It is indisputable that the School Board's interpretation of section 1002.33(8)(c) requires compliance and has the direct and consistent effect of law. This interpretation requires a charter school to comply with section 1006.12—including all of the interpretive gloss the School Board has placed on that statute by imposing the requirement that a fully-executed safe-school officer contract be in place to be in compliance—or face having its charter immediately terminated on the basis of such noncompliance. 16 The first sentence of section 1002.33(8)(c) states: "[a] charter may be terminated immediately if the sponsor sets forth in writing the particular facts and circumstances indicating that an immediate and serious danger to the health, safety, or welfare of the charter school's students exists." § 1002.33(8)(c), Fla. Stat. The evidence also establishes that the School Board uniformly applies this interpretation of section 1002.33(8)(c) to all charter schools in the District. Therefore, the School Board's interpretation of section 1002.33(8)(c) to determine that a charter school's noncompliance with section 1006.12 per se constitutes an immediate and serious danger to the health, safety, or welfare of the charter school's students is a rule. This interpretation has not been adopted as rule pursuant to section 120.54, and, thus, constitutes an unadopted rule, as defined in section 120.52(20). The School Board applied this unadopted rule to Championship to determine that an immediate and serious danger to the health, safety, or welfare of Championship student's was in existence on August 20, 2019, such that its charter must be terminated. Unadopted Rule Interpreting Section 1006.12 The evidence also establishes that the School Board interprets section 1006.12 as requiring a charter school to have in place, at the time the school is in session, a fully-executed contract with an appropriate safe-school officer entity, guaranteeing that a safe-school officer will be present on the school's campus for the entire school day for the specified term of the contract.17 Nowhere in the plain language of section 1006.12 is there an express requirement for a charter school to have a fully-executed contract for safe- school officer services in order to be in compliance with the statute. Thus, the School Board's interpretation of section 1006.12 imposes a requirement that is not apparent from the literal reading of the statute. 17 Runcie, Katz, and Brown each testified that a fully-executed contract is necessary for a charter school to meet the statutory requirement that a safe-school officer be "established and assigned" to the school. This interpretation of section 1006.12 requires compliance and has the direct and consistent effect of law. Specifically, it requires a charter school to either have a fully-executed contract for safe-school officers in place by the time school is in session, or face having its charter immediately terminated on the basis of such alleged noncompliance. The evidence also shows that the School Board uniformly applies this interpretation of section 1006.12 to all charter schools in the District. Therefore, the School Board's interpretation of section 1006.12 as requiring a charter school to have in place, at the time the school is in session, a fully-executed contract with an appropriate entity that guarantees that a safe-school officer will be present on the school's campus for the entire school day for the specified term of the contract, is a rule. This interpretation has not been adopted as rule pursuant to section 120.54, and, thus, constitutes an unadopted rule, as defined in section 120.52(20). The School Board applied this unadopted rule to Championship to determine that Championship was not in compliance with section 1006.12 on August 20, 2019, such that an immediate and serious danger to its students was in existence on that date, warranting immediate termination of its charter. Alleged Unadopted Rules Challenged under Section 120.56(4) Championship alleges that in immediately terminating its charter, the School Board has formulated and applied two agency statements which constitute unadopted rules. As articulated in the Rule Challenge Petition, these statements are: "[T]he School Board's unadopted policy that it is not legally required to provide safe-school officers to charter public schools within its borders"; and "[T]he School Board's policy of failing to collaborate with charter schools to facilitate access to safe-school officers pursuant to section 1006.12. . . by directing charter schools to either comply with the statute or risk having their charters terminated." Each of these alleged unadopted rules is separately addressed. Alleged Unadopted Rule that School Board is not Legally Required to Provide Safe-School Officers to Charter Schools in the District The School Board takes the position that it is not required by section 1006.12 to establish or assign safe-school officers to charter schools in the District, and that the responsibility for securing a safe-school officer for a charter school rests solely with the charter school itself. To this point, the School Board contends that the only circumstance under which it ever would be required to assign a safe-school officer to a charter school is if it denied the charter school access to a safe-school officer—which the School Board claims means actively preventing a charter school from securing a safe-school officer, and then declares it has not done so.18 As more fully discussed below, the School Board's interpretation of section 1006.12 ascribes a meaning to the statute that is not readily apparent from a reading of the statute's plain language. Further, the School Board's interpretation requires compliance and has the force and effect of law because it directs charter schools to secure their own safe-school officers and imposes the penalty of charter termination for failure to do so. . The School Board's interpretation of section 1006.12 is applied to every charter school in the District, and, thus, is a statement of general applicability. Therefore, the School Board's statement that it is not required to establish and assign safe-school officers to charter schools except when it has affirmatively prevented a charter school from securing a safe-school officer, is an unadopted rule. 18 The July 9, 2019, memorandum from Brown and Katz to charter school principals states, in pertinent part: "The School Board of Broward County has taken no action to deny any charter school access to any of the safe-school officer options summarized above and more fully detailed in [s]ection 1006.12." The School Board applied this unadopted rule to Championship such that it did not assign a safe-school officer to its campus for the 2019-2020 school year. This led to the School Board determining Championship noncompliant with section 1006.12 and immediately terminating its charter on that basis. Alleged Unadopted Rule that School Board has a Policy of Failing to Collaborate to Facilitate Charter School Access to Safe-School Officers Championship also alleges that "the School Board has a policy of failing to collaborate with charter schools to facilitate access to safe-school officers pursuant to section 1006.12. . . by directing charter schools to either comply with the statute or risk having their charters terminated." By casting the alleged agency statement in these terms, Championship effectively asserts that by not establishing and assigning safe- school officers to charter schools, the School Board has a policy of "failing to collaborate" with charter schools in direct contravention of the second sentence in section 1006.12. The evidence does not show that the School Board has a policy of "failing to collaborate" with charter schools—which would be tantamount to the School Board having a policy of purposefully violating the statute. Rather, as more fully discussed below, the evidence shows that the School Board interprets the phrase "collaborate to facilitate" to mean that it is only required to communicate with charter schools and inform them regarding the safe-school officer requirements of section 1006.12, and to require them to provide documentation showing compliance.19 Championship disputes the correctness of this interpretation, and contends that instead, this phrase means that the School Board must 19 Championship has not challenged the School Board's interpretation of the phrase "collaborate to facilitate" as an unadopted rule in this proceeding. establish and assign a safe-school officer to each charter school if the charter school so chooses.20 Based on the evidence, and for the reasons more fully discussed below, it is determined that the School Board's alleged policy of "failing to collaborate" to facilitate charter school access to safe-school officers is not an unadopted rule. The School Board did not present evidence showing that to the extent the alleged agency statements constituted rules, rulemaking was not feasible or practicable, as provided in section 120.54(1)(a)1. and 2.
Findings Of Fact At all times material hereto, the Respondent Jimmy Buoy has been employed by the School Board of Dade County as a School Resource Specialist, a non-instructional employee, at Madison Junior High School in Miami, Florida. He was hired for that position in January, 1980, by a Mr. Stergen, who was then the principal of Madison Junior High School. His duties at that time included maintaining the security of the students and school premises at Madison Junior High School, supervising the school monitors, enforcing school board policies and Madison Junior High School regulations, enforcing the school's dress code with reasonable force if necessary, and administering corporal punishment. In November 1982, Thelma Davis became the principal at Madison Junior High School. Although she took away Respondent's authority to administer corporal punishment, the remainder of Respondent's duties remained the same. Among his other duties, he continued to have the authority to enforce the school's dress code and the authority to use reasonable force in enforcing that dress code. In August 1984, a reorganization resulted in the school resource specialists being organizationally located within the special investigative unit of the school system. Pursuant thereto, area supervisors gained authority and control over school resource specialists at schools within each area however, the principals maintained their individual authority and supervision over the school resource specialist(s) employed at their schools. whether the principal's supervisory control over the school resource specialist was joint, concurrent, or "line supervision" with the area supervisor, the job description issued at the time for school resource specialists specified that the school resource specialist, among other duties, "performs other safe school activities as assigned by the principal." On three occasions prior to April 26, 1985, Tracy Merchison, a student at Madison Junior High School, had a hat in his possession while on school premises, a violation of the school's dress code. Respondent confiscated Tracy's hat on each of those occasions in accordance with his long-standing procedures for doing so: Respondent returned the hat to the student at the end of the school day if it was the student's first offense; Respondent retained the hat in his possession until the end of the school year if it was the student's second or subsequent offense. The student could regain possession of his hat prior to the end of the school year, however, if the student's parent made contact with the Respondent. Respondent used the opportunity of such parental contact to advise the parent regarding the school's dress code and to enlist the parent's support in obtaining that student's compliance with the dress code. Tracy's mother had been so contacted, and Tracy's hats had been returned to him, the last hat being returned to him a day or two before April 26, 1985. On April 26, 1985, Respondent observed Tracy Merchison outside the school library with a hat in his hand, the same hat that had just been returned to him after being confiscated for its appearance on the school grounds. Respondent approached Tracy and asked Tracy for his hat. Tracy refused to give Respondent his hat. Respondent repeatedly requested the hat, and Tracy repeatedly refused. After several requests, Respondent reached for the hat, and Tracy started switching the hat back and forth between his hands behind his back to keep it away from Respondent. Respondent continued to request the hat while reaching for it still hoping that Tracy would voluntarily and calmly relinquish it. Finally, Respondent grabbed one of Tracy's arms to hold it still and took the hat from Tracy's hands with his other hand. As Respondent then stepped away from Tracy, Tracy reached out with both of his hands and shoved Respondent in the chest pushing Respondent backward. Respondent grabbed the front of Tracy's shirt with both of his hands and pushed Tracy against the wall. Respondent spoke to Tracy telling him essentially to control himself so he would not get hurt and to stop showing off for his friends. Respondent then released his hold on Tracy. Tracy started walking away from Respondent but started cursing and threatening Respondent. Respondent said "Fine, Tracy. Fine, but I have the hat." Tracy came back to Respondent and started pushing against Respondent attempting to get his hat back from Respondent. As Tracy continued to lean against and shove Respondent, Respondent again grabbed Tracy and shoved him back against the wall. After he shoved Tracy into the wall, he then pushed Tracy against a pole a few feet away from the wall, and the momentum forced Tracy's head to move backward hitting the pole. Respondent released Tracy, and Tracy ran into the attendance office yelling, using profanity, and threatening Respondent with physical harm. Tracy grabbed a stick with a nail on one end of it which is used for picking up papers from the ground and started out of the office still yelling that he was going to "get" Respondent. He was restrained, however, by Principal Davis and Assistant Principal Thompson, and the stick was taken from him. Tracy then grabbed a stapler in his continuing attempt to "get" Respondent, and Principal Davis wrestled the stapler away from him. Tracy tried to again get the stick with the nail in it but was again restrained by the administrative personnel. Respondent at that point came into the office, told Principal Davis what had transpired, and left the office to break up a fight on the physical education field. Since Tracy failed to calm down, he was not permitted to leave school by himself. Rather, Principal Davis, after being unable to contact Tracy's parents, had someone drive Tracy home. No other disciplinary action has been taken by Petitioner against Respondent prior to or subsequent to the incident in question, and Respondent continues to enforce the dress code at Madison Junior High School in accordance with his normal procedures. Respondent continues to have authority to enforce the dress code at Madison Junior High School.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding Respondent Jimmy Buoy not guilty of the allegations contained in the Formal Notice of Charges filed against him and awarding full back pay and benefits for the period of time that he was suspended from his employment. DONE and RECOMMENDED this 17th day of September, 1986, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 1986. COPIES FURNISHED: Leonard Britton, Superintendent. School Board of Dade County 1410 Northeast Second Avenue Miami, Florida 33132 Phyllis O. Douglas Assistant Board Attorney Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Frank R. Harder, Esquire. Twin Oaks Building, Suite 100 2780 Galloway Road Miami, Florida 33165 Dan J. Bradley, Esquire 2950 S.W. 27th Avenue Suite 310 Coconut Grove, Florida 33133
Findings Of Fact During the 1985-86 school year, Respondent Daisy Perez-Cernuda was a student in the eighth grade at Riviera Junior High School. During that school year, Respondent arrived late for her first period class or simply did not attend that particular class. On December 2, 1985, Respondent became angry in that class because someone was in her seat when she arrived late. when the teacher Mrs. Vogel tried to calm her, Respondent started moving toward the teacher in a menacing way while screaming at her. Respondent was permanently removed from Mrs. Vogel's class. Respondent was instead appointed to be an office aide during the first period. Although normally bestowed as a privilege, the administration gave Respondent this assignment after her behavior in Mrs. Vogel's class in an attempt to rehabilitate Respondent by giving her a sense of responsibility and an opportunity to be successful. On February 25, 1986, Respondent came to Mrs. Vogel's classroom to deliver the attendance report during third period, together with the third period office aide. Since Mrs. Vogel knew that Respondent was an office aide only during the first period, she went to the office later in the day to inquire as to why Respondent was not attending her third-period class. When Respondent, who happened to be in the office at the time, saw Mrs. Vogel approach the principal, she started screaming at Mrs. Vogel and threatening Mrs. Vogel with physical harm. The principal had to physically block Respondent's path as Respondent moved toward Mrs. Vogel in what appeared to be an attempt to carry out her threats. On four occasions during the school year, Respondent was placed in the School Center for Special Instruction, a class wherein students serve in-door suspensions, due to her defiant and disruptive behavior. On two occasions, she left that classroom as soon as the security guard or assistant principal who accompanied her there had left. On one of those occasions-- March 3, 1986-- Respondent started screaming, yelling, and threatening students in that classroom to the extent that the other students became frightened for their physical safety and Respondent had to be removed by a security guard. On the last occasion--March 11, 1986--Respondent came in yelling racial slurs, profanities, and threats of physical violence to other students in that class. On December 6, 1985, Respondent threatened another student with physical violence during physical education to the extent that she disrupted two classes that were on the physical education field at that time. As a result of the above-described incidents, Respondent's failing grades in all classes, Respondent's cutting classes in addition to those already described above, Respondent's refusal to do her work while in class, Respondent's ten suspensions between October 1985 and March 1986, and Respondent's excessive absences and tardiness, a staffing conference was held on March 19, 1986, to consider Respondent's re-assignment into an educational alternative program. At that conference attended by Respondent, Respondent's mother, and numerous school system personnel, Respondent once again became uncontrolled. Her yelling and screaming of profanity culminated with her threat of physical violence against Mrs. Chapman, her counselor at Riviera Junior high School. No corporal punishment is administered at Riviera Junior High School. Respondent is a totally indisciplined child who should benefit by placement in an educational alternative program which has very small classes thereby allowing substantial individual attention to each student. Respondent would benefit from such special attention since it is clear from the demeanor of her parents at the final hearing in this cause that neither of them has any control over Respondent. Moreover, neither one appears to understand the need to discipline Respondent since neither one finds her behavior in school at all inappropriate.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered assigning Respondent Daisy Perez- Cernuda to the educational alternative program at J. R. E. Lee until such time as her performance reveals that she can be returned to the regular school program. DONE and RECOMMENDED this 4th day of September, 1986, at Tallahassee, 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 4th day of September, 1986. COPIES FURNISHED: Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami, Florida 33132 Phyllis O. Douglas Assistant Board Attorney Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Jaime Claudio Bovell, Esquire 1401 Ponce de Leon Boulevard Coral Gables, Florida 33134 Daisy Perez-Cernuda 4520 S.W. 5th Street Miami, Florida 33134 Ramon Perez-Cernuda #405 8871 Fountainbleau Boulevard Miami, Florida 33172
Findings Of Fact During the 1988-1989 school year, Respondent was a student in the eighth grade at Southwood Middle School a/k/a Southwood Junior High School. Respondent was a student in the Industrial Arts class of Richard C. Altman during the 1987-1988 school year. While in that class Respondent repeatedly engaged in conduct which defied the authority of Mr. Altman, interfered with other students learning, and compromised the safety of the other students in the class. On several occasions he turned on dangerous machinery without authorization, without wearing goggles as required, and in defiance of Mr. Altman's instructions. Frequently he engaged in conduct that would call attention to himself and distract other students from their work. Some of Respondent's conduct included throwing objects in class, thereby posing a danger to other students. On many occasions Mr. Altman discussed Respondent's behavior with him; however, Respondent would continue demonstrating a "nasty" temper, defiance, and lack of respect. In addition, Respondent was often late to class and simply refused to participate in productive class work. Consequently, he was unable to derive any benefit from the learning experience available to him in Mr. Altman's class. Because of his frequent disruptions, he also precluded other students from learning. Mrs. Isabelle Norton had Respondent as a student in her history class during the 1988/1989 school year. In that class he did not turn in any of his homework assignments, never brought material to class, and was never prepared when he came to class which was infrequent. He did very little class work and usually engaged in talking and distracting the class from the normal class work. When his talking became a problem, Mrs. Norton moved Respondent to the back of the class where he then would place his head on a table and sleep. In one instance when Mrs. Norton confronted Respondent about his disruptive behavior, he indicated that he was going to "punch her." As a result of Respondent's defiance, poor performance, and disruptive conduct, he received an "F3F," which constitutes a failing academic and conduct grade and the lowest rating for effort. Ultimately, Respondent was removed from Mrs. Norton's class with the result that the educational process in her class improved. It is the practice at Southwood Junior High School for teachers and school administrators to submit reports relative to troublesome student behavior. Such reports are prepared on forms called Student Case Management Referral Forms and are generally reserved for serious behavior problems. Mr. Altman and Mrs. Norton each issued Student Case Management Referral Forms on Respondent regarding his disruptive behavior in the classroom, tardiness, excessive talking, safety violations and teacher defiance. Respondent also received Student Case Management Referral Forms from other teachers relating similar disruptive conduct. In one of these incidents Respondent and another student were throwing rocks at a school bus. As a result of this activity, a female student passenger was struck on the head, causing a laceration and requiring her to receive surgical stitches. Respondent faced expulsion from school for that conduct. In an attempt to focus Respondent's attention on his need to improve his behavior, Kenneth S. Cooper, the assistant principal, together with other teachers and counselors, tried numerous techniques to help Respondent. One technique tried with Respondent was to get him to enroll in a crime prevention program at the Optimist School. Notwithstanding all these efforts, including many student and parent conferences, warnings and suspensions, a positive change in Respondent's behavior was not achieved. At Southwood Junior High School, like other schools within the regular school program, the average number of students in a classroom is about thirty- five. Such schools are not geared to address peculiar student needs nor provide individual students with continuous special attention. On the other hand, opportunity schools have a ratio of teachers to students of about 9 to 1. At opportunity schools, students are the subject of individualized educational plans, and there are more counselors on staff, including a psychologist. The opinion of the teachers and administrators who dealt with and had conferences regarding Respondent is that the more structured environment of an opportunity school would be better for him and that permitting Respondent to remain in a regular school program would be of no benefit to him inasmuch as he is not making any progress. Due to Respondent's poor grades and unacceptable conduct, a child study team conference between teachers and an administrator was held to discuss Respondent's lack of progress. At that conference it was decided to administratively assign Respondent to an opportunity school.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered assigning Respondent Erik Wilson to the Youth Opportunity School-South until such time as his performance reveals that he can be returned to the regular school program. DONE AND ENTERED this 18th day of July, 1989, in Tallahassee, Leon County, 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 18th day of July, 1989. COPIES FURNISHED: Madelyn P. Schere, Esquire School Board Administration Building 1450 Northeast Second Avenue Miami, FL 33132 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, FL 33132 Frank A. Howard, Jr., Esquire Board Attorney Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, FL 33132 Jamie C. Bovell, Esquire 370 Minorca Avenue Coral Gables, FL 33134 Mrs. Willie Mae Wilson 17520 Homestead Avenue Perrine, FL 33157
The Issue Whether Petitioner has cause to terminate Respondent's employment as a school monitor as alleged in the Notice of Specific Charges filed January 25, 1995.
Findings Of Fact At the times pertinent to this proceeding, Respondent was employed by the Petitioner as a security monitor at Hialeah-Miami Lakes Senior High School, one of the public schools in Dade County, Florida. The job duties as a school security monitor require him to patrol the school propery to detect and prevent illegal activity on school premises, to prevent unauthorized persons from coming on campus, and to report to the school administrators any problem or potential problem observed on school grounds. Prior to the incident that resulted in this termination prooceeding, Respondent had been reprimanded for sexually harrassing three female students. Respondent had attended conferences at which he was informed as to how he was expected to conduct himself on the job and how he was to interact with members of the public, students, teachers, and administrators. Following his reprimand, Respondent was individually counseled as to his expected behavior. The incident that resulted in this termination proceeding occurred May 5, 1994, on the school campus while the Respondent was on duty. Also on duty was Jannine Garribian, a substitute teacher that Respondent had been dating. Immediately before the incident described below, Respondent became involved in a loud argument with another male security monitor over whether this other man had had intimate relations with Ms. Garribian. Following this argument with the other security monitor, Respondent went to the drama room where Ms. Garribian was carrying out her assigned duties. In the presence of students, Respondent physically grabbed Ms. Garribian, shook her, and made loud accusations about her and the other security monitor. He attempted to drag her from the room so he could talk to her. She struggled with him. He grabbed her neck and pushed her against the wall. They then left the room for a short period of time. When they returned, Respondent told a student that Ms. Garribian was a slut and a whore. He called her a devil and said that she was a cold, evil person. When Respondent left he took Ms. Garribian's car keys with him. Ms. Garribian and the students who witnessed this incident were very upset. Carroll Williams, an assistant principal at the school, retrieved Ms. Garribian's car keys from Respondent. Respondent was thereafter ressigned to the regional office pending an investigation. Thereafter, upon recommendation of the school principal, the School Board suspended Respondent's employment without pay and intiated these termination proceedings. Respondent testified at the formal hearing that he did not want to be reinstated to his job with the Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that terminates Respondent's employment as a school security monitor. DONE AND ENTERED this 16th day of June, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 16th day of June, 1995. COPIES FURNISHED: Gerald A. Williams, Esquire Mack, Williams, Haygood & McLean, P.A. 1450 Northeast Second Avenue Suite 562 Miami, Florida 33132 Mr. Carlos Izquierdo 560 West 79th Street Hialeah, Florida 33014 Octavio J. Visiedo, Superintendent Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132
The Issue The issue in this case is whether Petitioner has just cause to suspend Respondent for 15 days without pay and return her to an annual contract.
Findings Of Fact Ms. Gabriele has been employed by the School Board since October 13, 1997. As a member of the School Board's instructional staff, Ms. Gabriele's employment was subject to section 1012.33, which provides that her employment will not be suspended or terminated except for just cause. During the 2010-2011 school year, Ms. Gabriele was a teacher at Bashaw Elementary School (Bashaw). As a teacher, Ms. Gabriele was required to abide by all Florida Statutes which pertain to teachers, the Code of Ethics and the Principles of Conduct of the Education Profession in Florida, and the Policies and Procedures Manual of the School Board. On February 17, 2011, an Office of Professional Standards (OPS) file was opened regarding Ms. Gabriele based upon allegations that, on February 9, 2011, Ms. Gabriele asked a teacher's aide, Brenda Twinem (Ms. Twinem), in the presence of students, "Can I kill a kid today?", and, on February 16, 2011, Ms. Gabriele called a female student to the front of the classroom and yelled at her in the presence of other students and a parent. On April 18, 2011, another OPS file was opened regarding Ms. Gabriele based upon an allegation that she made intentional contact with a witness (Ms. Twinem) who was involved in a recent OPS investigation into the alleged misconduct of Ms. Gabriele. On April 19, 2011, the School Board notified Ms. Gabriele of its intent to place her on paid administrative leave pending the OPS investigation. On June 3, 2011, the superintendent notified Ms. Gabriele of his intent to recommend the suspension of her employment for 15 days without pay, the dates of which to be determined by her principal, and a return to annual contract status. The June 2011 AC notified Ms. Gabriele of the School Board's intent to suspend her employment and set forth the basis of the superintendent's recommendation for suspension. In the AC, the School Board charged that Ms. Gabriele had engaged in actions which constituted just cause under Section 6.11 of the Policies and Procedures Manual of the School Board. These actions included: immorality, misconduct in office, corporal punishment, excessive force, and violation of Florida Administrative Code Rules 6B-1.006(3)(a) and 6B-1.006(3)(e). Joshua Bennett (Principal Bennett) became the principal of Bashaw in September 2010. Among his many other duties during the 2010-2011 school year, Principal Bennett was responsible for the supervision of the Bashaw teachers, including Ms. Gabriele, who was a fifth-grade teacher. Ms. Gabriele's class size fluctuated from 18 to 22 students during the 2010-2011 school year. It was noted that, during the math instruction period, there were changes in the number of students in her classroom, and it changed when Principal Bennett moved a student out of her class. Principal Bennett received some parent complaints and concerns regarding Ms. Gabriele shortly after he became Bashaw's principal. Based on these complaints, Principal Bennett collected information from the parents and decided to have an informal conversation with Ms. Gabriele. He also determined to walk through her classroom more frequently during the school year. Further, Principal Bennett recommended to Ms. Gabriele that she take some behavior management classes. Ms. Gabriele had the services of a paraprofessional (a/k/a a teacher's aide), Ms. Twinem, for a specific amount of time (40 to 50 minutes) during a particular day each week. While working for Ms. Gabriele as a paraprofessional, Ms. Twinem would check off homework, sort papers, grade papers, or work with groups of students as she was directed. In February 2011, Ms. Twinem approached Ms. Gabriele to provide her information. There were several students engaged in conversations in close proximity to Ms. Gabriele as she sat at her desk. According to Ms. Twinem, Ms. Twinem was standing beside Ms. Gabriele's desk when Ms. Gabriele looked at her and, in a frustrated tone, stated, "Can I kill a kid?" (Gabriele's Statement). Ms. Twinem was speechless because she thought it was inappropriate for Ms. Gabriele to make that statement in front of students. Ms. Twinem told Principal Bennett of Gabriele's Statement shortly thereafter. Ms. Twinem wrote her own account of Gabriele's Statement. Ms. Twinem's account contained her thought that Ms. Gabriele was joking, but she (Ms. Twinem) did not "know how it [Gabriele's Statement] was interpreted by the students." Clearly, at that time, Ms. Twinem had concerns about what the students thought of Gabriele's Statement. Ms. Gabriele admitted to making Gabriele's Statement. At hearing, she testified that, at the time she made the statement, the students were working with their partners, and it was loud in the classroom. After a student had asked her the same question several times, Ms. Gabriele made Gabriele's Statement. Although Ms. Gabriele testified that she was not frustrated, mad or upset when she made the statement, that she just made the statement "off-the-cuff kind of thing," this is not credible. According to Ms. Gabriele, the student's question involved a long-standing classroom practice of the students placing their completed assignments in a pink bin. If the student was indeed asking or questioning this long-standing practice, it would be natural for some type of frustration or exasperation to be expected. Ms. Gabriele conceded that, even if Gabriele's Statement had been made in jest or in a joking manner, it was inappropriate. Also in February 2011, Principal Bennett had a specific complaint involving a parent's (E.B.) observation during a visit to Ms. Gabriele's classroom. With Ms. Gabriele's knowledge that she was in the classroom, E.B. had come to pick up her student and to search for some misplaced homework in the classroom. E.B. observed a female student (later identified by the initials N.A.) go to the front of the classroom where Ms. Gabriele was yelling at her. E.B. described Ms. Gabriele's actions as ". . . really reaming the kid, . . . And she just didn't seem like she was letting up, and the child was just very distraught." E.B. observed N.A. to be "really teary eyed . . . Not in a full cry, but looked like she would break down." E.B. thought Ms. Gabriele's behavior was "pretty harsh," loud in a real demanding way, and fierce. E.B testified that, had Ms. Gabriele been yelling at E.B.'s student, she "probably would have yanked her in the hall and had a few words." E.B. was appalled at Ms. Gabriele's behavior and reported her observation to Principal Bennett. As a result of her conversation with Principal Bennett, E.B. followed up with a letter to the principal detailing what she had witnessed in Ms. Gabriele's classroom, as well as other observations she had while chaperoning a school field trip with Ms. Gabriele's class. E.B. requested to be kept informed of what action was being taken and volunteered to be in the classroom when her scheduled permitted. Shortly thereafter, an OPS investigation was opened regarding Ms. Gabriele. Debra Horne (Ms. Horne) is a specialist in the OPS. Ms. Horne conducted an investigation of E.B.'s classroom observation and Gabriele's Statement by interviewing Ms. Twinem; 11 students from Ms. Gabriele's class, including N.A.; and Ms. Gabriele. Ms. Twinem and the students' statements were taken on February 18, 2011, making them almost contemporaneous with the events. During the OPS interviews with the 11 students, all 11 stated that Ms. Gabriele yells at the students, and one student said her yelling was "extreme." Five of the students stated Ms. Gabriele embarrassed them or other students by her actions; four stated Ms. Gabriele called students different names, such as "toads," "toadettes," "hillbilly," or "baby"; and three said she made them cry or other students cry. During her OPS interview, N.A. stated that Ms. Gabriele had made her cry and that it embarrassed her a lot. N.A. further stated that Ms. Gabriele yelled at her and other students a lot.2/ During Ms. Twinem's OPS interview regarding Gabriele's Statement, she described Ms. Gabriele as being frustrated and using a frustrated tone when it was spoken. At the hearing Ms. Twinem also testified that she thought Gabriele's Statement was made "out of frustration," but that it was "inappropriate" nonetheless. Ms. Gabriele's OPS interview occurred on March 17, 2011. Ms. Horne conducted the OPS interview and followed her standard procedures in telling Ms. Gabriele the substance of the investigation. Aside from being told what her rights and duties were regarding the investigation, Ms. Gabriele was also reminded of the School Board policy regarding her cooperation with the investigation and her responsibility to not interfere with it or communicate with any witnesses to the investigation. Ms. Gabriele's interview included questions about E.B.'s letter, including E.B.'s classroom observations, and Gabriele's Statement. Ms. Gabriele confirmed she was aware that E.B.'s letter was sent "downtown." Ms. Gabriele maintained that she thought the only issue in the initial investigation was E.B.'s letter. This position is thwarted when one reviews her OPS interview wherein Ms. Gabriele was questioned about both E.B.'s letter and Gabriele's Statement. Although during the OPS interview Ms. Gabriele stated she did not remember the incident with N.A. crying, she did admit that if E.B.'s recollection of the incident with N.A. was correct that she, Ms. Gabriele, could "have handled it differently" by calling the student off to the side to discuss the issue. Also, during the OPS interview, Ms. Gabriele admitted that Gabriele's Statement was inappropriate when made to a coworker in the presence of students. Ms. Gabriele received a copy of the School Board's initial OPS investigative report in April 2011. Within that report, and through Ms. Gabriele's testimony, she acknowledged receipt of that investigative file,3/ which included all the information obtained during the initial OPS investigation, including her own interview regarding E.B.'s letter and Gabriele's Statement. In Section III of the initial OPS investigative report (for E.B.'s letter and Gabriele's Statement) and through her hearing testimony, Ms. Horne detailed her standard routine with respect to the description given to each witness at the start of his/her interview. Further, Ms. Horne advised School Board employees of their obligation to cooperate with the investigation as well as the School Board's Policy 6.13.4/ Ms. Gabriele testified that she was aware of the policies. On Monday morning, April 18, 2011, when Ms. Twinem reported to Ms. Gabriele's classroom to sort papers and check homework, she was subjected to questions by Ms. Gabriele regarding whether or not Ms. Twinem had, in fact, reported Gabriele's Statement to Principal Bennett. Ms. Gabriele testified she found out that Ms. Twinem was upset or bothered by Gabriele's Statement during one of her meetings with Principal Bennett. However, neither her testimony nor Principal Bennett's testimony reflected upon any meeting between those two on that Monday morning or the week prior for Ms. Gabriele to make that connection. Further, as Ms. Gabriele testified, she "obviously" knew that Ms. Twinem was the person who reported Gabriele's Statement, as she was the only other adult in the classroom at the time it was uttered. Ms. Twinem testified that she felt like "a deer in the headlights" when Ms. Gabriele asked her about reporting Gabriele's Statement. Ms. Twinem admitted to Ms. Gabriele that she had reported Gabriele's Statement to the principal "a long time ago." Ms. Twinem testified she was "anxious and nervous and like just didn't feel good" when Ms. Gabriele confronted her. Ms. Twinem reported this first encounter to Principal Bennett because she thought it should not have occurred. Later that same morning, Ms. Gabriele came into Ms. Twinem's office and told Ms. Twinem that she shouldn't tell anyone about their prior conversation because Ms. Gabriele could get in trouble. Ms. Twinem reported this second encounter to Principal Bennett. Still, later that same day when Ms. Twinem was in her office, Ms. Gabriele stood at the door and said that Ms. Twinem had gotten her (Ms. Gabriele) in trouble, because she had reported the second contact to the principal. Ms. Twinem reported this third contact to Principal Bennett. Principal Bennett testified that, after Ms. Twinem reported the first contact by Ms. Gabriele, he conferred with the OPS personnel as to what he should do. Based on direction from OPS, Principal Bennett hastily attempted to arrange a meeting with Ms. Gabriele to give her a verbal directive about contacting any witnesses involved with the investigation. Before the meeting could occur, Ms. Twinem reported that Ms. Gabriele had contacted her again. Prior to the third encounter, Principal Bennett issued a verbal directive to Ms. Gabriele about contacting any witnesses involved in the investigation. His directive included an admonishment "to cease and desist talking to the other employees about the OPS matter." Principal Bennett recounted that he told Ms. Gabriele that she was "not to talk to any other employees about the open investigation." Ms. Gabriele admitted she spoke with Ms. Twinem three times on April 18, 2011. Ms. Gabriele claimed that she did not understand who she could or could not talk to with respect to the investigation and that she only wanted to apologize for making Ms. Twinem upset about Gabriele's Statement. Ms. Gabriele admitted she knew it was Ms. Twinem who reported Gabriele's Statement to the principal. In the event Ms. Gabriele had questions about who she could or could not talk to, she had the opportunity to ask either Principal Bennett or Ms. Horne. Such dialogue apparently did not occur.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Manatee County School Board enter a final order suspending Ms. Gabriele for 15 days without pay and returning her to an annual contract. DONE AND ENTERED this 8th day of December, 2011, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 8th day of December, 2011.
The Issue Whether just cause exists for Petitioner to suspend Respondent without pay and terminate his employment as a school security monitor.
Findings Of Fact The Parties Petitioner is a duly-constituted school board charged with operating, controlling, and supervising all free public schools within Miami-Dade County, Florida, pursuant to Article IX, section 4(b), Florida Constitution and section 1001.32, Florida Statutes. At all times relevant, Respondent was employed with Petitioner pursuant to a professional services contract as a school security monitor at John F. Kennedy Middle School ("JFKMS"), a public school in Miami-Dade County, Florida. Respondent has been employed with Petitioner as a school security monitor at JFKMS since 2010. At all times relevant, Respondent's employment was governed by the collective bargaining agreement between Miami- Dade County Public Schools and the United Teachers of Dade Contract, Petitioner's rules, and Florida law. Notice of Specific Charges Petitioner's Notice of Specific Charges, which constitutes the administrative charging document in this proceeding, was filed on January 26, 2016. In the Notice of Specific Charges, Petitioner alleges that Respondent picked up J.F., a JFKMS student, and dropped him to the floor, and also alleges that Respondent grabbed J.F. by the hood of his sweatshirt in such a manner that J.F. complained of being unable to breathe. The Notice of Specific Charges charges Respondent with having committed misconduct in office, as defined in Florida Administrative Code Rule 6A-5.056(2), including violating specified rules and School Board policies incorporated therein; and with having committed gross insubordination, as defined in rule 6A-5.056(4). The Evidence Adduced at Hearing The events giving rise to this proceeding occurred on or about May 19, 2015, at JFKMS. That day, Respondent was on duty as a school security monitor. At the time of the incident giving rise to this proceeding, Respondent was monitoring the "spill-out" area at JFKMS. The spill-out area is the area outside of the cafeteria where students congregate after they have finished eating.2/ It is separated from a courtyard by a wall consisting of bars. A gate connects the spill-out area to a courtyard.3/ Respondent saw J.F. slap a student on the head and then initiate a slap-boxing episode with another student. Slap-boxing is a form of play-fighting in which the participants slap each other with open hands rather than hit each other with fists. Although it is play-fighting, slap- boxing can, and often does, escalate into real fighting if the participants are hurt or become angry. Slap-boxing is contrary to Petitioner's policies governing student conduct and discipline, including the Code of Student Conduct.4/ Respondent ordered J.F. and the other student to stop slap-boxing. Thereafter, they exited the spill-out area and went into the courtyard, where they continued to slap-box. Respondent began to close the gate separating the courtyard from the spill-out area. Thereafter, the interaction between Respondent and J.F. that gave rise to this proceeding occurred. J.F. did not testify at the final hearing. To establish that Respondent engaged in the conduct specifically alleged in the Notice of Specific Charges, Petitioner presented the testimony of Officer Delontay Dumas, an officer in Petitioner's Police Department. Dumas was assigned to, and on duty at, JFKMS on the day of the events giving rise to this proceeding. Through his school radio, Dumas heard shouting that there was a fight going on. When he arrived at the spill-out area, he observed Respondent and J.F., who, at that point, appeared to have been separated from each other by staff members and students. Dumas did not personally see the events that gave rise to this proceeding. Petitioner presented video footage recorded by two surveillance cameras, hereafter referred to as "Camera 5" and "Camera 6," located in the spill-out area. Although Dumas did not personally witness the events, he identified Respondent, J.F., and another person (D.M.) shown in the video footage. Dumas also provided some narrative description of the events depicted in the footage.5/ The quality of the video footage from both Cameras 5 and 6 generally is poor. One can reasonably assume, based on the very small size of the images in the video footage, that the cameras are located considerable distances from the specific location within the spill-out area where the incident occurred. As such, one is unable to clearly——or, in some instances, at all——see or identify who is present and what is happening. When the image is enlarged to "full size," the resolution becomes extremely poor, again making it very difficult to impossible to clearly, if at all, see or identify who is present and what is happening. No audio recording associated with the video footage from either camera was provided. Camera 5 is a panning surveillance camera.6/ As such, it does not continuously monitor or depict a specific location within the spill-out area; rather, the footage depicts a particular location for a brief period before the camera pans to another location in the spill-out area. Thus, one is not able to see a continuous sequence of events occurring in any given location within the spill-out area. The only video footage from Camera 5 that is relevant to this proceeding is that showing the gate between the spill- out area and courtyard. The following constitutes the pertinent timeline7/ of events, with a description of the events as observed by the undersigned, at the time shown on the timestamp on the relevant video footage from Camera 58/: 13:01:44 A person who appears to be Respondent (as identified by Dumas in connection with testimony regarding Camera 6) is standing at the gate between the spill-out area and the courtyard, and closes the gate. 13:02:49 Students are at the gate, which is open. Respondent is not at the gate. 13:03:16 Student is in the gate, which is open. Respondent is not at the gate. 13:03:52 A student in a red shirt exits gate into courtyard. Respondent is not at the gate. 13:04:26 No one is at/in the gate, which is open. 13:05:02 The gate is open and several people are standing near or in it. No one can be identified due to poor image quality. The small image is dark and distant; the "full size" image has such poor resolution that one is unable to identify the persons shown in the footage. 13:05:04 - 13:05:06 Respondent is identified from the white emblem on the back of his black shirt (as seen more clearly in the footage from Camera 6). He is standing in the open gate and is facing into the courtyard. The students near him are not and cannot be identified. It appears that Respondent closes the gate at approximately 13:05:06. 13:05:35 A person who appears to be Respondent is standing at the gate, inside the spill out area. The gate door is closed. A person can be seen on the other side of the gate door. That person cannot be definitively identified due to the poor video quality. Two other people, who cannot be identified, are standing inside the spill-out area near the Respondent. 13:06:11 A person who appears to be Respondent is standing at the gate, inside the spill out area. The gate is closed. A person can be seen on the other side of the gate door. That person may be J.F., but he or she cannot be definitively identified due to the poor video quality. 13:07:09 The gate is open and two persons are standing near each other. The person in dark clothing appears to be Respondent and the person in a white top appears to be J.F. However, neither the small nor "full-size" video images are of sufficient quality or provide sufficient resolution to definitively discern the actions of these persons. 13:07:23 Respondent is standing in the open gate facing into the courtyard, and the white emblem is visible although not legible. The student, who appears to be J.F., appears to be on the other side of the gate in the courtyard. 13:07:27 Three other persons, who are unidentified, are now standing in close proximity to Respondent. 13:07:52 The gate is open, Respondent and a student, who appears to be J.F., appear to be engaged with each other. The student appears to be moving toward or pushing Respondent. Although the image resolution is too poor on both small and "full size" to enable one to precisely see the respective positions of these persons, J.F.'s head does not appear to be covered by the hood. 13:07:53 The person who appears to be J.F. is inside the spill-out area. Respondent is in the gateway, but it is not possible to determine whether Respondent is touching J.F. or vice versa. 13:07:54 The person who appears to be J.F. is in the spill-out area, and the person who appears to be Respondent appears to be crouching next to him. However, it cannot be determined whether Respondent is touching J.F. or vice versa. The video footage for Camera 5 ends at 13:08:12. Based on the foregoing, the undersigned finds that the video footage for Camera 5 does not definitively depict, and therefore does not establish, that Respondent picked up J.F., dropped him to the floor, or grabbed the hood of his sweatshirt such that it caused J.F. to be unable to breathe, as is alleged in the Notice of Specific Charges. The poor quality of the video footage does not enable the viewer, with any reasonable certainty, to identify persons shown at numerous key points in the footage or to precisely see or determine the actions in which they are engaged.9/ Accordingly, the undersigned finds the video footage from Camera 5 unpersuasive to show that Respondent engaged in the conduct alleged in the Notice of Specific Charges. Camera 6 is a stationary surveillance camera located in the spill-out area.10/ The following constitutes the pertinent timeline11/ of events, with a description of the events as observed by the undersigned, at the time shown on the timestamp on the relevant video footage from Camera 612/: 13:01:36 – 13:01:45 Respondent (who is identified by Dumas) appears in the video field and walks to the gate separating the spill-out area from the courtyard. At this point, the white emblem identifying him as a school security monitor can be seen on the back of his shirt but it is not legible due to the poor quality of the video footage. 13:01:46 – 13:02:13 Respondent is standing at the gate. Several students walk into and out of the spill-out area through the gate. 13:01:14 Respondent walks away from the gate, toward another part of the spill-out area. 13:02:34 Respondent is no longer visible in the video footage. 13:02:52 J.F. (identified by Dumas), who is wearing a white hooded sweatshirt and khaki shorts, appears in the video footage. He is accompanied by, and interacting with, other students. 13:03:19 J.F. and another student, who is wearing a red top and khaki pants, are interacting with each other. J.F. briefly turns around and faces the direction in which Respondent previously walked as he left the field of view. By 13:03:24, J.F. has turned back in the opposite direction and walks away from the other student. 13:03:33 Respondent reappears on the right-hand edge of the video footage, coming from the direction J.F. faced as he briefly turned, before turning back around and walking away. 13:03:48 J.F. is in close proximity to, and interacting with, the student in the red top. 13:03:50 J.F. exits the spill-out area through the gate and goes into the courtyard. By 13:03:53, the student in the red top also has exited the spill-out area into the courtyard. Respondent can be seen near the lower right- hand corner of the video footage, facing in the direction of J.F. and the student in the red top. By this time, movement in the courtyard can be seen on the left-hand edge of the video footage. Respondent begins to walk toward the gate. 13:04:24 Respondent walks toward the gate between the spill-out area and the courtyard. 13:04:33 Respondent stands at the gate. 13:04:35 Respondent is no longer visible at the gate; it appears that he moved through the gate toward or into the courtyard. 13:04:36 J.F. moves back into the spill-out area. He appears to be falling backward into the spill-out area, and in doing so, appears to fall into other students, who are walking by. Respondent is not visible. 13:04:37 J.F. appears to regain his balance and appears to stand upright or nearly upright. Respondent is not visible. 13:04:38 J.F. again appears to be falling backward, with his back facing the gate. Respondent is not visible. A person, who cannot be identified, is standing in the gate and appears to crouch down. 13:04:38 A student wearing red enters the spill-out area from the courtyard and partially obscures the view of J.F. Respondent is not visible. 13:04:39 A person wearing black, who cannot be clearly seen and cannot be identified by viewing the video footage, appears to be standing over J.F., who appears to be lying on the ground. 13:04:40 The person wearing black, who cannot be clearly seen or identified by viewing the video footage, appears to bend down over J.F., then stands up. It appears that J.F. is sitting up. The view of J.F. and the person wearing black largely is obscured by student bystanders, including the student in the red top, who is running away from the location of J.F. and the person wearing black. 13:04:41 Neither J.F. nor the person wearing black are visible in the video footage. 13:05:17 A person wearing black is standing at the gate. The person cannot be identified by viewing the video. J.F. is not visible. 13:05:17 – 13:07:00 The person wearing black is standing at the gate. Many students walk by and stand, obscuring the view of the gate. Students exit and enter the spill- out area through the gate. J.F. is not visible. 13:07:01 - 13:07:56 The person in black is no longer visible at the gate. Many students walk by and stand, obscuring the view of the gate. Students exit and enter the spill-out area through the gate. J.F. is not visible. 13:07:57 Respondent (as identified by Dumas) is seen standing at the gate. A student wearing a light green or blue top is standing in a position that partially obscures the view of Respondent. J.F. is not visible. 13:08:10 J.F. (as identified by Dumas) is standing next to Respondent at or in the gate. 13:08:13 J.F. moves forward from the gate into the spill- out area and appears to be crouching or bending down. 13:08:14 J.F. swings around such that he is facing the spill-out area and appears to grasp the bars that comprise the separation wall between the spill-out area and the courtyard. Respondent appears to briefly place his arm on J.F.'s torso. 13:08:15 Respondent and J.F. are seen standing next to each other in the gate. 13:08:17 J.F. appears to have backed up and is holding onto the bars. The view of J.F. is obscured by another person wearing a white short-sleeved shirt and dark pants, previously identified as D.M. by Dumas, who stands next to J.F. Starting at 13:08:18 to the end of the video footage at 13:12:01, the notation "[No Recorded Data]" intermittently appears for brief intervals in the lower left corner of the video footage. Simultaneously with this notation, the video footage briefly freezes before resuming, causing the footage to appear jerky and to rapidly skip forward. 13:08:30 J.F. appears to be standing in the spill-out area. The view of Respondent is almost completely obscured by D.M. 13:08:34 J.F. is in the spill-out area standing next to Respondent at the gate. They do not appear to be in any physical contact with each other. The view of both J.F. and Respondent is partially obscured by D.M. 13:08:35 - 13:08:49 D.M. almost completely blocks the view of Respondent and J.F. 13:08:49 Respondent and J.F. are standing in the gate. 13:08:52 J.F. begins to move side-way into the spill-out area and appears to crouch slightly. His back is facing the camera. 13:08:54 – 13:09:00 J.F. is upright and standing in the spill-out area next to and facing Respondent, who is standing at the gate. 13:09:01 J.F. appears to be facing, and moving back away from, Respondent. He is standing up and his arms are spread away from his body. 13:09:02 J.F. is crouching forward and facing Respondent. One arm is visibly spread away from his body. 13:09:03 J.F. is standing upright in the spill-over area, facing Respondent, who is standing in the gateway. 13:09:04 J.F. has bent over, and his sweatshirt appears to have ridden up in the back such that you can see a bit of his back between the bottom of the sweatshirt and the top of his shorts. His head appears to be visible. J.F. has substantially obscured the view of Respondent. 13:09:05 J.F.'s right arm is raised, and his head is slightly lowered but still visible. J.F.'s sweatshirt is ridden up in the back. J.F. has substantially obscured the view of Respondent. 13:09:07 J.F.'s right arm is again raised and he is facing Respondent. 13:09:08 J.F. bends over, then stands upright. Respondent is standing in the gate and as J.F. stands up, he largely obscures the view of Respondent. 13:09:10 J.F. is rising up from the bent-over position. Respondent appears to grasp J.F. on his upper back and under his right arm. 13:09:10 J.F. is bent over and Respondent's hand appears to touch J.F.'s upper back. 13:09:11 J.F. bends over and spins around. J.F.'s head is not visible. The sweatshirt appears to be covering his head. 13:09:12 Respondent's arm appears to circle J.F.'s waist. J.F. twists around into an upright position. J.F.'s back is to the camera. The sweatshirt appears to be covering the back of his head. J.F. is grasping one of the bars comprising the separation wall with one hand. 13:09:12 Respondent's arm appears to circle J.F.'s waist and he slightly lifts J.F. as he attempts to move him through the gate back into the courtyard. J.F. is grasping the bars of the separation wall with one hand. 13:09:14 – 13:09:16 J.F. pulls away from Respondent and backs into the spill-out area. He appears to still be wearing the sweatshirt and his head no longer appears covered by the sweatshirt. 13:09:17 By this point, students are almost completely obscuring the view of both J.F. and Respondent. 13:09:18 The view of Respondent and J.F. is completely blocked by students. A white object, which cannot be specifically identified, is briefly seen being flung. Between 13:09:18 and 13:12:01, when the video footage ends, students have gathered, completely obscuring the view of Respondent and J.F. Although the video footage from Camera 6 appears to show that Respondent briefly touched J.F. on the torso and upper back and placed his arm around J.F.'s waist, it does not show Respondent picking up J.F., dropping him to the floor, or grabbing the hood of his sweatshirt such that J.F. was unable to breathe, as alleged in the Notice of Specific Charges. The poor quality of the video footage——specifically, the small size of the footage as originally shot by the camera and its extremely poor resolution when enlarged to "full size"——does not enable the viewer, with any reasonable certainty, to identify persons shown at numerous key points in the footage or to precisely see or determine the actions in which they are engaged. Accordingly, the undersigned finds that the video footage from Camera 6 does not constitute persuasive evidence that Respondent engaged in the conduct alleged in the Notice of Specific Charges. When Dumas spoke with J.F. after the incident occurred, he took custody of J.F.'s sweatshirt, and the sweatshirt was admitted into evidence at the final hearing. The sweatshirt has a vertical rip approximately one-half inches long at the front center of the neck. Dumas testified that J.F. told him that he (J.F.) had ripped off his sweatshirt because Respondent had grabbed the hood, which was choking him.13/ As noted above, Dumas did not witness the incident, so he did not see J.F. rip the sweatshirt. Dumas did not see the sweatshirt before J.F. gave it to him, and it was ripped when Dumas received it. Petitioner also presented the testimony of student D.C.M., who was present in the spill-out area on the day in question and saw the incident. D.C.M. saw J.F. slap-boxing with another student in the courtyard. He testified that Respondent ordered J.F. and the other student to "hurry up and get back inside" the spill- out area. However, he also testified that Respondent blocked the gate between the courtyard and spill-out area to prevent J.F. and the other student from re-entering the spill-out area14/; that they tried to get back through the gate; and that the other student ultimately made it through the gate but J.F. did not. D.C.M. testified: "[a]nd then I saw [Respondent] like ——I guess he had picked [J.F.] up and put him on the ground." D.C.M. testified that he saw J.F. get up off of the ground, laughing; that J.F. again tried to force his way back through the gate; that Respondent, who was attempting to lock the gate, blocked J.F. with his body to prevent him from coming back through the gate; and that J.F. did finally "get his body a little bit through." D.C.M. testified that "[Respondent] has him against like the gate——right there, there's like metal bars, then he had him holded [sic], so I guess he had his——had [J.F.] by the hoodie of the jacket. Then I guess [J.F.], he said, 'Let me go. I can't breathe. I can't breathe.'" D.C.M. testified that at that point, J.F. became angry, ripped off his jacket, and freed himself from Respondent's grasp. J.F. then tried to hit Respondent. D.C.M. testified that he restrained J.F. and at that point, another school security monitor responded to the incident. On cross-examination, D.C.M. testified that when J.F. tried to re-enter the spill-out area, "I guess [Respondent] had picked him up and then like put him on the ground." On balance, the undersigned does not find D.C.M.'s testimony persuasive to establish that Respondent engaged in the conduct alleged in the Notice of Specific Charges. Although D.C.M. was present and claimed to have seen the events, his testimony regarding the specific conduct with which Respondent is charged was repeatedly qualified with the preface "I guess." As such, D.C.M.'s testimony regarding Respondent's actions and conduct is equivocal and indefinite. D.C.M. did not state, unequivocally, that he saw Respondent pick J.F. up and put him on the ground or that he saw Respondent grab the hood of J.F.'s sweatshirt. As such, D.C.M.'s testimony does not persuasively establish that Respondent engaged in the specific actions with which he is charged in the Notice of Specific Charges. Respondent also testified regarding the incident. He observed J.F. and another student (who was wearing a red shirt) running around, slapping other students, and engaging in slap- boxing with each other in the spill-out area. Respondent twice directed them to stop. They exited the spill-out area and went into the courtyard, where they resumed slap-boxing. In order to isolate them in the courtyard to prevent them from engaging in further disruptive behavior involving other students in the spill-out area, Respondent walked over to close the gate between the spill-out area and the courtyard. Respondent testified, credibly, that he intended to separate them from each other once he had isolated them in the courtyard. Once Respondent began to close the gate, J.F. and the other student ran toward the gate to try to get back inside the spill-out area. The student wearing the red shirt got through the gate and back into the spill-out area. Respondent testified, credibly, that J.F. also attempted to get through the gate, but ran into him and fell down. Respondent caught J.F. under his arm, walked him back out of the spill-out area, and closed the gate in order to isolate J.F. until the class bell rang. Respondent testified, credibly, that he explained to J.F. that he was to remain in the courtyard until the class bell rang, at which point Respondent would let him back into the spill-out area. J.F. continued to try to re-enter the spill-out area. Respondent did not call for another security monitor to assist him, because, in his judgment, the situation at that point was calm and under control. J.F. then pulled on the gate with sufficient force that Respondent lost his grasp on the gate, which opened. At that point, J.F. again tried to re-enter the spill-out area. Respondent again blocked J.F. with his body to prevent him from re-entering the spill-out area. In the course of blocking J.F. from re-entering the spill-out area, Respondent testified, credibly, that he caught the back of J.F.'s hooded sweatshirt and tried to move him back outside of the gate. At that point, J.F. squeezed out of his sweatshirt, threw it at him, and started throwing punches and cursing at him. Respondent attempted to stop or deflect the punches. Until that point, Respondent had not tried to call for assistance because, in his words, "it literally went from zero to 60 like that." Respondent acknowledged that before the incident escalated to the point that J.F. threw punches at him, he had placed his hands on J.F.; however, this was after J.F. had run into him, and Respondent did so in order to guide J.F. back out of the gate. Respondent testified that he did not recall having otherwise placed his hands on J.F. Respondent also stated that he grabbed the hood of J.F.'s sweatshirt as J.F. tried to squeeze past him back into the spill-out area. However, he denied having pulled the hood of the sweatshirt with force sufficient to prevent J.F. from going through the gate because he already had blocked J.F. with his body. In response to being asked why he did not "just let [J.F.] through," Respondent responded that he did not allow J.F. to re-enter the spill-out area because J.F. already had slapped other students, was running around, and had caused a disturbance, and that allowing him back into the spill-out area would have "opened it up further to more disturbance." The undersigned finds Respondent's account of the events credible and persuasive. The video footage from Camera 6 appears to show Respondent briefly touching J.F. on his torso, upper back, and waist; however, it is noted that Respondent testified that he did "not recall" having touched J.F. other than picking him up under the arm to guide him back out into the courtyard. This apparent inconsistency with the video footage from Camera 6, as observed by the undersigned, is credited to Respondent's lack of perfect recall rather than lack of candor. Importantly, Respondent persuasively and credibly denied having picked J.F. up and dropping him on the ground and grabbing him by the hood of his sweatshirt such that he could not breathe. As described above, the video footage does not contradict Respondent's testimony on these key points. Petitioner also presented the testimony of Tremaine Morgan, another school security monitor at JFKMS who arrived at the scene of the incident involving Respondent and J.F. as it was concluding. Specifically, Morgan saw J.F. throwing punches at Respondent and he saw a student grab and try to restrain J.F. as he was doing so. He did not see the entire incident, so did not see Respondent engage in the conduct alleged in the Notice of Specific Charges. Morgan stated that he did not see or hear any calls from Respondent on his school radio, but he also acknowledged that it was loud in the spill-out area at lunchtime, so that such calls would not be able to be heard. Morgan testified regarding his understanding of the proper procedure for handling instances of slap-boxing between students. According to Morgan, the students are first to be given the directive to stop, and that if they do not respond, the school administration should be called so, as he put, it "a higher power will take care of it." He testified that in his experience, that course of action has resolved the issue. On cross-examination, Morgan acknowledged that separate instances of slap-boxing between students is not necessarily identical or similar, and that in some instances, slap-boxing can escalate into real fighting. He testified that for that reason, students are not allowed to slap-box at school. Morgan's testimony apparently was presented to establish or demonstrate the correct way that an incident of slap-boxing is to be handled by a school security monitor. However, Petitioner did not present any evidence showing that Morgan possessed any greater authority, expertise, or knowledge regarding proper procedures than did Respondent. Further, as a fine, but key, point——the alleged conduct giving rise to this proceeding did not occur as Respondent was breaking up a slap-boxing episode between J.F. and the other student. The evidence shows that by the time J.F. and Respondent had physical contact with each other, J.F. and the other student already had ceased slap-boxing, the student in the red top already had re-entered the spill-out area, and J.F. was in the process of directly disobeying Respondent's directives to remain in the courtyard by attempting to run and squeeze past him to re-enter the spill-out area. The persuasive evidence establishes that J.F., not Respondent, initiated the physical contact between them when he ran into Respondent while trying to run through the gate, then again made physical contact with Respondent as he attempted to squeeze through the gate, in direct defiance of Respondent's order to remain in the courtyard. Only after J.F. had made physical contact with Respondent twice, in direct disobedience of Respondent's directives to stay out of the spill-out area and in the courtyard, did Respondent grab J.F.'s sweatshirt by the hood. Accordingly, Morgan's testimony as to how slap-boxing incidents should be handled is not directly relevant to the specific circumstances present in this case. Further, under any circumstances, the persuasive evidence establishes that Respondent did direct J.F. and the other students to stop slap-boxing, twice, and that they disregarded his directives. Mary Kate Parton,15/ principal at JFKMS, testified that school security monitors should not place their hands on a student unless the student presents a danger to himself or others, and that whether touching of a student by a school security monitor is inappropriate depends on the specific circumstances with which the school security monitor is presented in a given situation. She concurred that students at JFKMS are not allowed to slap-box, and she acknowledged that whether a school security monitor's response to slap-boxing episodes depends on the specific circumstances and situation. Respondent previously has been disciplined for having inappropriate physical contact with students at JFKMS. Specifically, in April 2013, Respondent was reprimanded for touching a student on the shoulder as he took her to the school office after she called him a racial slur. He was directed by the then-principal of JFKMS to, among other things, refrain from any physical touching of students. However, he also was directed to follow Miami-Dade County Public Schools Procedures for Safe Restraint when necessary, which authorize the reasonable use of physical force when necessary under certain circumstances, such as to quell a disturbance threatening physical injury to others, for self-defense, or to prevent harm or injury to the student, self, or others. In November 2013, Respondent was suspended for 12 days for engaging in horseplay with a student that resulted in them falling to the ground; at the hearing, Respondent acknowledged that he had been too familiar with the student and that his conduct in that instance had been inappropriate. In addition to the previously-issued directives, Respondent was directed to adhere to the Standards of Ethical Conduct, School Board Policy 4210; the Code of Ethics, School Board Policy 4210; and the Student Supervision and Welfare Policy, School Board Policy 4213. Additionally, he was directed, in pertinent part, to refrain from inappropriate communication with students in a way or manner such that they would perceive his position to be a friend rather than adult and a professional; to refrain from inappropriate physical contact in a way or manner that does not directly relate to his job as a security monitor; and to be a credit to himself in his employment and in the community. These incidents are not probative of whether Respondent again engaged in inappropriate touching of a student that led to this proceeding.16/ They are relevant only to the issue of whether Respondent's actions at issue in this proceeding constitute gross insubordination. Findings of Ultimate Fact Whether Respondent committed the offenses charged in this proceeding is a question of ultimate fact to be determined by the trier of fact in the context of each alleged violation. Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1985); McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995). Misconduct in Office Having considered the evidence, the undersigned finds that Petitioner has not established, by a preponderance of the competent, credible, and persuasive evidence, that Respondent's actions in this case constitute misconduct in office, as defined in rule 6A-5.056(2), which incorporates rule 6A-10.080, rule 6A- 10.081, and Standards of Ethical Conduct, School Board Policy 4210; the Code of Ethics, School Board Policy 4210; and the Student Supervision and Welfare Policy, School Board Policy 4213. As discussed in greater detail above, the video camera footage simply does not show, with any degree of clarity or precision, that Respondent engaged in the conduct with which he is charged in the Notice of Specific Charges——i.e., picking up J.F. and dropping him to the floor and grabbing him by the hood of his sweatshirt such that he was unable to breathe.17/ Further, as discussed above, D.C.M.'s testimony was equivocal regarding Respondent's specific actions, and, as such, was not sufficiently persuasive to find that Respondent engaged in the conduct alleged in the Notice of Specific Charges. As discussed above, the video footage does show, with some reasonable certainty, some physical contact between Respondent and J.F.18/ The undersigned finds that this contact constituted the use of reasonable force which was appropriate under the circumstances, and that Respondent's actions in attempting to physically block J.F. from re-entering the spill- out area (where he already had been disruptive and physically engaged with other students) were consistent with the JFKMS procedures for dealing with disruptive behavior by a student. Specifically, Respondent testified, credibly, that, consistent with the JFKMS protocol for dealing with disruptive student behavior, he directed J.F. and the other student to stop slap-boxing with each other. He did so twice; both times, they disobeyed those directives. Once J.F. and the other student exited into the courtyard, Respondent attempted to isolate them in that area so they would not return to the spill-out area and resume in behavior that was disruptive and potentially dangerous to themselves and other students. At that point, J.F. and the other student stopped slap-boxing and attempted to get past Respondent, with one of them actually succeeding. Respondent blocked the gate with his body, consistent with the type of reasonable force that is authorized under circumstances where the student's behavior may result in injury to himself or others.19/ As discussed above, the evidence shows that J.F. made the initial contact with Respondent by running into him, at which point J.F. fell to the ground. Thereafter, as Respondent again tried to prevent him from returning into the spill-out area——while telling him he had to remain in the courtyard until the class bell rang——J.F. again attempted to squeeze past him. At this point, Respondent was justified in holding J.F. to prevent him from re-entering the spill-out area, where he previously had engaged in disruptive behavior (which could have escalated into a real fight) and had shown no inclination to stop even after being directed twice to do so. As discussed above, Respondent did not attempt to call for the assistance of another school security monitor or administration until J.F. ripped off his sweatshirt and started throwing punches at him, because until that point, Respondent considered the situation under control. Under these circumstances, the undersigned finds that Respondent did not engage in conduct constituting misconduct in office as defined by rule 6A-5.056(2). Gross Insubordination The undersigned also finds that Respondent's actions do not constitute gross misconduct, as defined in rule 6A- 5.056(4). In connection with the April 2013 reprimand of Respondent for inappropriate physical contact with a student, the then-principal of JFKMS issued directives that included the following: "[r]efrain from any physical touching of students." Another directive appeared to temper this directive by stating: "[f]ollow MDCPS Procedures for Safe Physical Restraint when necessary." In connection with the suspension of Respondent in September 2013, for horseplay with a student, the following additional directives were issued: "[r]efrain from inappropriate physical contact with students in a way or in any manner that does not directly relate to your job as a school security monitor." Here, the evidence does not show that Respondent's actions constitute the intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority. With respect to the April 2013 directives, to the extent they direct Respondent, as a school security monitor, to literally refrain from any physical contact with students, they are directly contrary to School Board Policy 5630, titled "Corporal Punishment and Use of Reasonable Force," which expressly authorizes school staff members, which includes school security monitors, to, within the scope of their employment, "use and apply reasonable force to quell a disturbance threatening physical injury to others, . . . in self-defense, or for the protection of persons and property." To the extent the principal's April 2013 directives are contrary to this School Board policy, they were (and are) unreasonable. Respondent's actions also do not violate the additional directives issued in September 2013 in association with his suspension. As discussed above, Respondent's conduct under the circumstances present in this case, where J.F. had engaged in disruptive behavior having the potential to escalate into a fight that could harm or injure himself or others, constituted use of reasonable force——which consisted of blocking J.F. as he tried to re-enter the spill-out area after having been told he was to remain in the courtyard until the class bell rang, and holding J.F. when J.F. again disobeyed that directive and again made physical contact with Respondent. The evidence also shows that, consistent with the September 2013 directive, Respondent followed MDCSP Procedures for safe restraint when necessary. As discussed above, Respondent twice told J.F. and the other student to stop slap- boxing, and he also repeatedly told J.F. to remain in the courtyard until the class bell rang. He gave these directives before engaging in physical restraint of J.F. by blocking, and then holding, him when he disobeyed, ran into Respondent, and ultimately, tried to punch Respondent. Further, Respondent's actions with respect to J.F. were directly related to his job as a school security monitor. Under these circumstances, the undersigned finds that Respondent did not engage in gross insubordination under rule 6A-5.056(2).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a final order dismissing the Notice of Specific Charges against Respondent, reinstating Respondent's employment as a school security monitor, and awarding Respondent back pay for the period of his suspension without pay. DONE AND ENTERED this 7th day of April, 2016, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 2015.
