Conclusions This cause coming on to be heard before THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA, at its meeting conducted on January 18, 2012, to consider (1) the Recommended Order of Dismissal rendered on November 16, 2011, by the Honorable Jessica E. Varn, Administrative Law Judge of the State of Florida, Division of Administrative Hearings, consisting of Findings of Fact, Conclusions of Law, and a Recommendation; (2) Petitioner’s Exceptions to Recommended Order of Dismissal; (3) Respondent’s Response in Opposition to Petitioner’s Exceptions; and (4) Costs Affidavit. THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA, having reviewed the entire record and transcript, and having heard oral arguments presented by representatives on behalf of the parties, and being fully advised in the Premises: IT IS THEREUPON ORDERED AND ADJUDGED BY THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA, that: 1. With Petitioner’s consent, THE SCHOOL BOARD does not rule upon paragraphs | through 13 and paragraphs 17 through 27 of Petitioner’s Exceptions to Recommended Order of Filed January 23, 2012 4:44 PM Division of Administrative Hearings After Schoo! Programs, Inc. vs. Broward County School Board DOAH Case Number: 11-5458BID SBBC AGENDA 011812HH1 Final Order Dismissal as they do meet the requirements for exceptions as such are outlined in Section 120.57(1)(k), Florida Statutes. 2. Paragraphs 14 through 16 inclusive of Petitioner’s Exceptions to Recommended Order of Dismissal are denied by THE SCHOOL BOARD to the extent that such paragraphs assert exceptions to findings of fact. 3. Paragraphs 14 through 16 inclusive of Petitioner’s Exceptions to Recommended Order of Dismissal are denied by THE SCHOOL BOARD to the extent that such paragraphs assert exceptions to conclusions of law. 4. The prayer for relief within Petitioner’s Exceptions to Recommended Order of Dismissal is denied by THE SCHOOL BOARD to the extent that it asserts an exception to the recommended penalty contained within the Recommended Order of Dismissal. 5. THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA accepts, approves and adopts in its entirety the Recommended Order of Dismissal and dismisses the bid protest of Petitioner AFTER SCHOOL PROGRAMS, INC. for lack of standing. 6. Costs in the amount of $2,255.57 are hereby awarded in favor of THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA and against the Petitioner, AFTER SCHOOL PROGRAMS, INC. DONE AND ORDERED in Fort Lauderdale, Broward County, Florida this_23 day of - 2012. THE SCHOOL BOARD OF BROWARD COYNTY, FLORIDA By: Ann Murray, Chair Page 2 of 4 After School Programs, Inc. vs. Broward County Schoo! Board DOAH Case Number: 11-5458BID SBBC AGENDA 011812HH1 Final Order JA A Supervisor, Officia Copies furnished to: ROBERT W. RUNCIE, Superintendent of Schools Office of the Superintendent The School Board of Broward County, Florida 600 Southeast Third Avenue — 10" Floor Fort Lauderdale, Florida 33301 HARRIS K. SOLOMON, ESQUIRE Brinkley Morgan Attorneys for Petitioner After School Programs 200 East Las Olas Boulevard — 19"" Floor Fort Lauderdale, Florida 33301 ROBERT PAUL VIGNOLA, ESQUIRE Office of the School Board Attorney Attorneys for Respondent School Board Kathleen C. Wright Administrative Building 600 Southeast Third Avenue - 11th Floor Fort Lauderdale, Florida 33301 STATE OF FLORIDA, DIVISION OF ADMINISTRATIVE HEARINGS The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Page 3 of 4 After Schooi Programs, Inc. vs. Broward County School Board DOAH Case Number: 11-5458BID SBBC AGENDA 011812HH1 Final Order APPEAL OF FINAL ORDER Pursuant to Section 120.68, Fla. Sta., a party to this proceeding may seek judicial review of this Final Order in the appropriate district court of appeal by filing a notice of appeal with Noemi Gutierrez, Agency Clerk, Official School Board Records, The School Board of Broward County, Florida, 600 Southeast Third Avenue — gn Floor, Fort Lauderdale, Florida 33301, on or before thirty (30) days from the date of this Final Order. A copy of the notice and a copy of this Final Order, together with the appropriate filing fee, must also be filed with the Clerk, Fourth District Court of Appeal, 1525 Palm Beach Lakes Boulevard, West Palm Beach, Florida 33401- 2399. If you fail to file your notice of appeal within the time prescribed by laws and the rules of court, you will lose your right to appeal this Final Order. fritz allwork doah bidprotest afterschoolprograms ASP-Final Order- 2012.1,18.final.doc Page 4 of 4
The Issue Whether Respondent, Barbara Aboushahba, committed the violations as alleged in the Administrative Complaint, and, if so, what disciplinary action should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner, Orange County School Board, is the governmental entity responsible for the operation, supervision, and control of public schools in Orange County, Florida, including the employment of personnel associated with the educational process. Respondent was employed by Petitioner as a kindergarten teacher pursuant to the terms of a professional services contract with Petitioner. Respondent is a member of the bargaining unit covered by the Collective Bargaining Agreement between the School Board of Orange County and Orange County Classroom Teachers Association. On June 25, 2003, Respondent received a written directive "to provide clarification or guidance" from the principal of the school where she taught that she "must avoid touching students except as is absolutely necessary to effect a reasonable and lawful purpose," and "to avoid even the appearance of verbal intimidation of students." On May 18, 2005, Respondent received a letter of reprimand for misconduct from her principal, because she "grabbed a student to get his attention." In the letter she was warned that "should there be another incident of a similar nature, discipline, up to and including dismissal, may be recommended." On May 31, 2005, Respondent received a letter of reprimand for violating "prior directives and [that you] again placed your hands on a student in a manner that could be interpreted as punitive." In addition, on that date Respondent received a directive that she avoid "touching a student in a manner that serves no educational or lawful purpose" and that she "must exercise care and professional judgment to avoid the appearance of the inappropriate use of physical intimidation." She was urged to "carefully consider when and how to respond to student behaviors." On May 26, 2006, Respondent was suspended without pay for five days as a result of "allegations that you used inappropriate force against a student" and that she "violated two previous directives regarding placing your hands on a student." On March 26, 2007, Respondent executed a Settlement Agreement to resolve an Administrative Complaint that had been filed by the Education Practices Commission in John L. Winn v. Barbara Aboushahba, Case No. 056-0009-V. The Settlement Agreement included a letter of reprimand and a $400.00 fine. On April 22, 2007, E.B., a ten-year-old student in Respondent's computer lab, had not completed his assignment. Respondent grasped E.B.'s hand and placed his hand on the computer keyboard and/or mouse, with her hand superimposed on his hand. This apparently upset E.B., who then pulled his shirt up and over his head. Respondent then pulled E.B.'s shirt down from his face and told him to "stop crying like a baby." E.B. was crying as a result of being upset by Respondent's actions. Respondent's touching of E.B. was minimal, but unnecessary and inappropriate. Her comment to him was callous and insensitive. Given the fact that this incident occurred less than one month after the above-referenced settlement with the Education Practices Commission, it is apparent that Respondent has not responded appropriately to the directives, reprimands, and guidance directed to similar inappropriate conduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent, Barbara Aboushahba's, "gross insubordination" constitutes "just cause" under Section 1012.33, Florida Statutes, to dismiss her from her employment as a teacher with Petitioner, Orange County School Board. DONE AND ENTERED this 7th day of March, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 7th day of March, 2008. COPIES FURNISHED: Brian F. Moes, Esquire Orange County School Board 445 West Amelia Street Post Office Box 271 Orlando, Florida 32802-0271 Lindsay N. Oyewale, Esquire deBeaubien, Knight, Simmons, Mantzaris & Neal, LLP 332 North Magnolia Avenue Post Office Box 87 Orlando, Florida 32802-0087 Ronald Blocker, Superintendent Orange County School Board Post Office Box 271 Orlando, Florida 32802-0271 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent's employment.
Findings Of Fact Ms. Williams has been employed by the School Board for 15 years and is currently a 12-month custodian at Longwood Elementary School (School), located in Seminole County, Florida. As a 12-month custodian, Ms. Williams is allowed sick and annual leave. Ms. Williams requested leave beginning July 7, 2010, to September 29, 2010, for back surgery. On August 10, 2010, the School received a letter dated July 8, 2010, from Ms. Williams's physician, advising that Ms. Williams had undergone surgery for a spinal disorder on July 7, 2010, and would need 12 weeks to recover prior to returning to work. On October 1, 2010, Ms. Williams called the School and advised that she was not able to return to work and requested leave from September 30, 2010, through October 28, 2010. Her physician sent a letter dated September 30, 2010, to the School, advising that Ms. Williams would need an additional four weeks for recovery. By this time, Ms. Williams had exhausted all her paid leave and was on leave without pay. Ms. Williams was unable to come to the School to sign the application for leave; however, the leave was approved by the principal of the School, Virginia Fisher (Ms. Fisher), who was Ms. Williams's direct supervisor. By November 2, 2010, Ms. Williams was still unable to return to work, and her physician sent another letter to the School, advising that Ms. Williams would need an additional four weeks for recovery. Ms. Williams requested leave from November 2, 2010, to November 30, 2010. Again, Ms. Williams was unable to come to the School to sign the application for leave, but it was approved by Ms. Fisher. By December 1, 2010, Ms. Williams was still unable to return to work and requested leave from December 1, 2010, through January 3, 2011. Her physician sent a letter to the School, stating that Ms. Williams needed an additional four weeks for recovery. Ms. Williams was unable to come to the School to sign the application, and the leave request was approved by Ms. Fisher. Ms. Williams's physician sent a letter dated December 27, 2010, to the School, stating that Ms. Williams had not quite reached maximum medical improvement with respect to her recovery and that he would need to see her in four weeks for reevaluation. Ms. Williams signed and submitted an application for leave for January 4, 2011, through January 24, 2011. The leave was approved. Ms. Williams's physician submitted a Return to Work/School Certificate dated January 21, 2011, to the School, stating that Ms. Williams would be able to return to work on January 24, 2011, with the following restrictions: "light duty with no repetitive lifting over her head, lifting restriction of = 30 lbs." Ms. Williams discussed the issue of light duty with Steve Bouzianis (Mr. Bouzianis), director of Human Resources, Staffing and Operations for the School Board. She told him that she had been advised by staff at the School that she needed to come back to work or submit a request for additional leave. Mr. Bouzianis informed her that she could not do the custodial job with the restrictions set by her physician. Ms. Williams was advised to submit a request for leave and was told that it would be approved. By February 18, 2011, Ms. Williams had not submitted a request for leave or submitted a letter from her physician stating that she needed to be absent from work due to an illness. By letter dated February 18, 2011, Ms. Fisher enclosed a leave request form and directed Ms. Williams to complete the form and return it to her, along with a physician's statement substantiating Ms. Williams's need for her absences no later than February 23, 2011. Ms. Fisher further advised that, if Ms. Williams could not obtain a physician's statement, Ms. Fisher would approve the leave for the remainder of the year as personal leave without pay. Ms. Fisher advised in the letter of the consequences for failure to request leave and stated: Should you fail to return to me your signed request for leave form and the supporting physician's statement (if applicable) by the date identified above [February 23, 2011], you will be considered as absent from duty without approved leave, and in violation of adopted School Board policy. In that event, the Superintendent of Schools will recommend to the School Board that you be suspended from your duties and further that your employment with the School Board of Seminole County, Florida[,] be terminated. The School received a letter dated February 22, 2011, from Ms. Williams's physician, who stated that Ms. Williams could return to work on January 24, 2011, with the same restrictions previously listed on the Return to Work/School Certificate. On February 23, 2011, Cynthia Frye (Ms. Frye), who is Ms. Fisher's assistant, attempted to call Ms. Williams at her sister's telephone number, which is the number that Ms. Williams had given the School to contact in case of an emergency. At the time, Ms. Williams was living with her sister and staying some of the time with her son. Ms. Frye called at 2:37 p.m., and got no answer, and called again at 3:15 p.m., at which time she spoke to Ms. Williams's sister. Ms. Frye told the sister that it was important that Ms. Williams call Ms. Frye. Ms. Williams had not called Ms. Frye by the morning of February 24, 2011. Ms. Frye attempted to call Ms. Williams twice during the morning of February 24, 2011, and three times during the afternoon. On the last call, she left a message with Ms. Williams's sister that it was imperative that Ms. Williams call Ms. Frye that night or Ms. Frye could not help Ms. Williams. By March 4, 2011, the School still had not heard from Ms. Williams. Ms. Fisher sent Ms. Williams a letter dated March 4, 2011, stating that, because Ms. Williams had not contacted the School to request leave, Ms. Williams's absences since January 25, 2011, were considered as absences from duty without approved leave. Ms. Fisher advised Ms. Williams that, based on Ms. Williams's third and continuing absences, Ms. Fisher would recommend to the superintendent of schools that Ms. Williams's employment with the Seminole County Public Schools be terminated. When questioned at the final hearing concerning her reasoning for not requesting leave, Ms. Williams indicated that she wanted to work, but the School would not let her come back to work with light duty restrictions. She contacted her attorney and, based on his advice, did not request leave. Ms. Williams's employment is governed by the Official Agreement between the Non-Instructional Personnel of Seminole County Board of Public Instruction Association, Inc., and the School Board (Agreement). Article VII of the Agreement provides: Section 4. * * * B. A regular employee who has been hired for four (4) or more years may only be terminated for just cause except as otherwise provided in A. above. * * * Section 5. A. Regular employees who have been hired for a minimum of three (3) continuous years (without a break in service) shall not be disciplined (which shall include reprimands), suspended or terminated except for just cause. * * * C. An employee may be suspended without pay or discharged for reasons including, but not limited to, the following provided that just cause is present: Violation of School Board Policy Violation of work rules Insubordination--Refusal to follow a proper directive, order, or assignment from a supervisor While on duty, the possession and/or the use of intoxicating beverages or controlled substances after reporting for work and until after the employees leaves the work site after the equipment, if applicable, has been checked in Endangering the health, safety or welfare of any student or employee of the District The conviction of a felony in the State of Florida or notice of conviction of a substantially parallel offense in another jurisdiction An act committed while off duty, which because of its publication through the media or otherwise adversely affects the employee's performance or duties, or disrupts the operations of the District, its schools, or other work/cost centers Excessive tardiness Damage to School Board property Improper use of sick leave Failure to perform assigned duties Other infractions, as set forth from time to time in writing and disseminated by the Superintendent or designee. * * * Section 11. Absence Without Leave Employees will be considered absent without leave if they fail to notify their principal, appropriate director or supervisor that they will be absent from duty and the reason for such absence. Absence without leave is a breach of contract and may be grounds for immediate dismissal. * * * Section 15. Employees shall report absences and the reason for such absences prior to the start of their duty day in accordance with practices established at each cost center. An employee who has been determined to have been AWOL shall be subject to the following progressive discipline procedures: 1st Offense--Written reprimand and one day suspension without pay. 2nd Offense--Five day suspension without pay. 3rd Offense--Recommendation for termination. Each day that an employee is AWOL shall be considered a separate offense. However, any documentation of offenses in this section shall be maintained in the employee's personnel file.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating Ms. Williams's employment with the School Board. DONE AND ENTERED this 28th day of July, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 28th day of July, 2011.
The Issue The issues to be determined are whether Respondent violated section 1012.315, Florida Statutes; Florida Administrative Code Rules 6A-5.056 and 6A-10.081(1) through (5); and School Board Policies 6.30(2), (3)(b), and 6.301(2), as alleged in the Statement of Charges and Petition for Termination (Petition); and, if so, what penalty should be imposed for these violations.
Findings Of Fact Petitioner, the School Board, is the constitutional entity authorized to operate, control, and supervise the St. Lucie County School System. The authority to supervise the school system includes the hiring, discipline, and termination of employees within the school district. Respondent was employed by the School Board as a teacher at Fort Pierce Westwood High School. He worked for the School Board since at least September 2007, albeit originally at a different school. Respondent signed a professional services contract with the School Board on or about February 12, 2010. He is covered by the collective bargaining agreement between the School Board and the St. Lucie County Classroom Teachers’ Association (CBA), as stated in Article I, section A of the CBA. On October 28, 2011, Respondent was advised of a meeting to take place on November 1, 2011, regarding a School Board investigation into alleged inappropriate contact with students. There is no indication in the record whether Respondent attended the meeting or gave any information. There is also no indication whether the investigation referenced in the October 28, 2011, letter is the same investigation giving rise to these proceedings. On March 3, 2014, Maurice Bonner, the Director of Personnel for the School Board, provided to Respondent a Notice of Investigation and Temporary Duty Assignment (Notice). The Notice advised that Respondent was being investigated regarding allegations of inappropriate contact with students, and that he was being placed on temporary duty assignment as assigned by the Personnel Office. Respondent signed the letter acknowledging its receipt on March 14, 2014. On April 1, 2014, Genelle Zoratti Yost, Superintendent of the School Board, wrote to Respondent with a reference line entitled Notice of Intent to Terminate Employment. The letter states, in pertinent part: On March 21, 2014 you were arrested for violating Section 800.04(6)(a)(b), Florida Statutes, “Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age.”[1/] Pursuant to the Arrest Warrant issued on March 21, 2014 you are not to be within 100 feet of Fort Pierce Westwood High School or Harbor Branch. As a result, you are unavailable to work on campus so your temporary duty assignment outlined in the notice of Temporary Duty Assignment provided to you on March 3, 2014 shall remain in full force and effect until further notice. Furthermore, you have not reported your arrest to the Superintendent within 48 hours as required. . . . Based on the information available to the School District there is sufficient information to charge you with violating the following [list of State Board of Education rule violations and School Board Policy violations]. . . . The April 1, 2014, letter notified Respondent that the superintendent would be recommending to the School Board that it terminate his employment, and provided him with notice of how he could request a hearing on the proposed termination. The letter also advised that, should he seek a hearing, the superintendent would recommend that he be suspended without pay pending the outcome of the hearing. Respondent signed the letter acknowledging receipt of it on April 3, 2014. Respondent requested a hearing with respect to his termination and was notified by letter dated April 23, 2014, that he was suspended without pay. Respondent’s request for hearing was forwarded to the Division, and the case was docketed as Case No. 14-1978. Because of the pendency of the criminal proceedings against Respondent, at the request of the parties, on September 30, 2014, Administrative Law Judge Darren Schwartz entered an Order Closing File and Relinquishing Jurisdiction, which closed the file with leave to re-open. On a date that is not substantiated in this record,2/ Respondent was tried by jury and convicted of seven counts of lewd or lascivious conduct in violation of section 800.04(6)(a) and (b) and nine counts of lewd and lascivious molestation in violation of section 800.04(5)(c)2. All 16 counts were second- degree felonies. On July 29, 2016, counsel for the School Board wrote to then-counsel for Respondent, advising him that in light of the jury verdict, notice was being given that on August 9, 2016, the superintendent would be recommending Respondent’s termination from employment. The letter also provided Respondent notice of his rights to a hearing in accordance with section 1012.33(6)(a). Counsel for Respondent notified the superintendent that Respondent continued to request a hearing in accordance with the CBA. On October 31, 2016, a Judgment and Sentence was entered in the case of State of Florida v. Dan Allen Hussan, Case No. 562014CF000857A (19th Judicial Circuit in and for St. Lucie County), adjudicating Respondent guilty of all 16 counts. Respondent was sentenced to 15 concurrent sentences of life in prison, with credit for 103 days served prior to sentencing. With respect to Count XVI, Respondent was sentenced to 15 years of sexual offender probation, consecutive to the sentence set forth in Count I. On November 7, 2016, Judge James McCann entered, nunc pro tunc to October 31, 2016, an Order of Sex Offender Probation with respect to Count XVI. The Order of Sex Offender Probation adjudicated Respondent guilty and set the terms for sexual offender probation following the life sentence. Respondent remains incarcerated. He also maintains that he is not guilty of the underlying charges. Petitioner contends that Respondent did not self-report his arrest as required by School Board policy. However, no competent, substantial evidence was presented to demonstrate Respondent’s failure to report. While a notice provided to him regarding this allegation was admitted into evidence, the accusation, standing alone, does not amount to evidence that the accusation is true.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Lucie County School Board enter a final order terminating Respondent’s employment based on a finding of just cause. DONE AND ENTERED this 25th day of April, 2017, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 2017.
The Issue The issue is whether, in violation of Section 231.36(1)(a) and (6), Florida Statutes, Respondent committed misconduct in office when he pawned a school laptop computer and, if so, what discipline should be imposed.
Findings Of Fact Respondent is 33 years old. His father has served Petitioner as a principal, and his mother has served Petitioner as a primary specialist; combined, Respondent's parents have 64 years' service in Petitioner's school system. Respondent attended high school locally, where he achieved prominence as a football player, and continued his football career in college. Petitioner hired Respondent in an instructional position on July 1, 1992, shortly after he obtained his bachelor's degree. Respondent began work as a pool substitute. At the time, he was also pursuing a master's degree in guidance. When a guidance job became available, Petitioner hired Respondent as a guidance counselor. After four years as a guidance counselor, Respondent became an assistant principal in March 2001 at a middle school. Three assistant principals help the principal at this middle school. Respondent's duties include supervision of discipline, safety, and maintenance of the school. On July 19, 2001, Respondent's principal assigned to Respondent an Apple G-4 Titanium laptop computer. Respondent understood that he was to use the computer for school-related job duties, such as staff development and classroom use. On August 25, 2001, Respondent took the computer to Richie's Pawn Shop in Tamarac to pawn the computer. Respondent disclosed to the pawn shop owner that the computer was owned by Petitioner, not Respondent. However, the pawn shop owner, who had known Respondent nearly 20 years earlier, when he had purchased items from the shop, nevertheless allowed Respondent to pawn the computer. Respondent signed a document that represented that he owned the computer. Pursuant to the agreement, the pawn shop owner gave Respondent $350. The agreement provided that Respondent could redeem the computer at anytime during the next 30 days by repaying the $350 plus a finance charge of $52.50. According to the agreement, at the conclusion of the first 30 days, Respondent could redeem the computer at anytime during the next 30 days by repaying the $350 plus a finance charge of $105. After 60 days, Respondent would lose the right to redeem the computer. Respondent used the money for expenses on a trip that he was taking that weekend to retrieve his four-year-old daughter, who was visiting Respondent's parents in Ocala. The following Monday, August 27, Respondent was back at work as an assistant principal. Respondent did not return to the pawn shop to redeem the computer for a little over two weeks. On September 12, Respondent returned to the pawn shop and attempted to redeem the computer. The prior day, though, a Broward County Sheriff's Officer, on a routine check of the pawn shop, had run the registration number of the computer that Respondent had pawned and learned that it was the property of Petitioner. The officer had informed one of Petitioner's investigators of the presence of the computer in the pawn shop. One of the law enforcement officers then ordered the pawn shop owner to hold the computer and not allow anyone to remove it. Pursuant to the order that he had received, the pawn shop owner informed one of Petitioner's investigators when Respondent tried to redeem the computer. Contrary to the allegation of the Administrative Complaint, Respondent went to the pawn shop to redeem the computer not knowing that Petitioner or law enforcement had discovered the wrongful pawning. Petitioner recovered the computer, undamaged. Petitioner's investigator correctly concluded that Respondent had not attempted or intended to deprive Petitioner of the computer permanently. He also correctly concluded that Respondent had not intended to deprive Petitioner permanently of the computer. Among the witnesses attesting to Respondent's value as an employee of Petitioner was Petitioner's Executive Director of Professional Standards and Special Investigation Unit. The Executive Director has served Petitioner for 28 years, including four years as a principal. While a principal, the Executive Director hired Respondent and found him a valuable employee. When the Professional Standards Committee recommended termination of Respondent, the Executive Director suggested to the Superintendent that he recommend a ten-day suspension and three-year demotion, which the Superintendent adopted as his recommendation to the School Board. Other witnesses with considerable knowledge of Petitioner testified to his enthusiasm, talent, energy, and competence as an employee of Petitioner. In particular, Respondent's principal, who has served Petitioner for 33 years, testified that Respondent showed considerable initiative and exceeded all expectations. Although unaware of the reason for Respondent's absence, the students and parents all missed Respondent. The principal testified that even the teachers were unaware of the reason for Respondent's absence. Describing Respondent as a "tremendous asset" to the school system, the principal testified that the incident did not diminish Respondent's effectiveness as an employee of Petitioner. The temporary loss of possession of the computer did not prevent Respondent from completing any of his work assignments, nor did it deprive anyone else from the use of a computer, as the school has dozens of extra computers. Respondent has not previously received discipline as an employee of Petitioner. Petitioner's Employee Disciplinary Guidelines provides in part: DISCIPLINARY GUIDELINES It is the intent of the School Board to treat all employees on a fair and equitable basis in the administration of disciplinary measures. Discipline is a corrective rather than a punitive measure. In dealing with deficiencies in employee work performance or conduct, progressive discipline shall be administered, except in situations where immediate steps must be taken to ensure student/staff safety. Progressive discipline may include, but is not limited to: informal discussion, oral warning, written warning, written reprimand, enrollment in professional skills enhancement programs, suspension without pay, demotion, change in contract status or termination of employment. There are certain categories of misconduct, however, which are so offensive as to render an employee no longer employable. The only appropriate disciplinary measure in these cases (See Section II, Category A) is the termination of the employment relationship with the Broward County School System (F.S., 231.28) The severity of the misconduct in each case, together with relevant circumstances (III (c)), will determine what step in the range of progressive discipline is followed. A more severe discipline measure will be used when it is in the best interest of the students of the community we serve. It is the intent that employees who have similar deficiencies in work performance or misconduct, will be treated similarly and compliant with the principle of just cause. * * * DISCIPLINARY ACTION (CATEGORY A) OFFENSE PENALTY Inappropriate sexual Dismissal conduct including, but not limited to, sexual battery, possession or sale of pornography involving minors, sexual relations with a student or the attempt thereof Sale/distribution of a Dismissal controlled substance Reckless display, Dismissal threatening with guns or weapons on School Board property or at School Board events (CATEGORY B) OFFENSE PENALTY (a) Committing a Suspension/Dismissal criminal act--felony * * * Unlawful possession, Suspension/Dismissal use or being under the influence of a controlled substance Driving Under the Suspension/Dismissal Influence under the scope of employment * * * (i) Possession of guns or Reprimand/Dismissal weapons on School Board property * * * (m) Any violation of The Reprimand/Dismissal Code of Ethics of the Education Profession in the State of Florida--State Board of Education, Administrative Rule 6B-1.001 * * * Misappropriation of Suspension/Dismissal Funds Insubordination, Reprimand/Dismissal which is defined as a continuing or intentional failure to obey a direct order, reasonable in nature and given by and with proper authority Unauthorized use of Reprimand/Dismissal School Board property * * * Section III of the Employee Disciplinary Guidelines reserves to the Superintendent and School Board considerable discretion in imposing discipline, including termination, for any just cause. This section identifies a wide range of aggravating or mitigating factors, including the severity of the offense, degree of student involvement, impact on the school and community, number of repetitions of the offense, length of time since the misconduct, employment history, actual damage, deterrent effect of discipline, actual knowledge of the employee about the misconduct, related misconduct by the employee, pecuniary benefit by the employee, mental or physical harm to persons in school or community, length of employment, employee's evaluation, and employee's adherence to self-reporting policy. Although the actions of Respondent in this case may also constitute misuse of institutional privileges, they are best defined as misconduct in office. The record fails to establish that these actions rise to the level of immorality. The unlawful pawning of a school computer reduces an employee's effectiveness as an employee of the school system, even if, as here, few administrators, teachers, students, or parents know of the misconduct. Unlawfully pawning a school computer is a betrayal of trust that, once detected, is necessarily known by at least some superiors of Respondent, and their knowledge of this misconduct reduces the trust they can place in Respondent and must be able to place in each employee, especially administrators. Numerous mitigating factors apply in this case. The offense is not especially severe, especially given Respondent's intent to redeem the computer prior to the maturity date of the pawn. Nothing in the record suggests that Respondent or any other of Petitioner's employees was prevented or impeded from performing his or her duties due to the pawning of the computer for less than three weeks. The incident does not involve students. It is an isolated incident, and Respondent has not previously been the subject of discipline during his ten-year tenure with Petitioner. Respondent has been an outstanding employee. Another mitigating factor is Respondent's relative youth. Obviously, aggravating factors are that the incident involves pecuniary gain on Respondent's part, although a relatively modest amount, and Respondent did not self-report. Another aggravating factor is the deterrent effect of discipline in this case. Petitioner is justifiably concerned with safeguarding its computers. Obviously, the most applicable provision from the disciplinary guidelines is unauthorized use of school property, for which the penalty ranges from reprimand to dismissal. In some respects, the pawning of the computer is a minor instance of the unauthorized use of school property because Respondent was without the computer for less than three weeks, did not need the computer during that time to perform his school work, did not consume the property or shorten its useful life during its unauthorized use, and never intended to permanently deprive Petitioner of the computer. Also, others at his school did not go without computers while Respondent's computer was in the pawn shop. In one respect, the pawning of the computer is a serious instance of the unauthorized use of school property because it is an expensive asset of the school. The disciplinary guidelines also require the imposition of progressive discipline. The range for the unauthorized use of school property is reprimand to dismissal. Petitioner has imposed demotion and suspension, which more closely approach dismissal than reprimand. Petitioner's selection of discipline in this case is driven mostly by a desire to achieve deterrence and fairness. Petitioner must discourage its many employees from pawning school computers and other expensive, portable electronic equipment, even in situations, as here, where they do not intend to deprive Petitioner permanently of the asset. Deterrence is a listed aggravating factor, and, given the potential for a problem with this kind of behavior, deterrence is the most important aggravating factor. The fairness issue is more problematic for Petitioner. Petitioner is commendably trying to treat Respondent as it has treated two other, nonadministrative employees who were caught misusing computers. In one case, an employee broke into a secure area, stole a computer, and pawned it. In the other case, an employee with authorized possession of a computer pawned it, possibly with the intent of permanently depriving Petitioner of its property. Otherwise, the facts concerning aggravating and mitigating factors in these two cases are not developed in this record. The three cases are the same in that employees pawned school computers, but, based on this record, the resemblances end there. Respondent is a relatively young person, who admittedly exercised poor judgment, but his employment record with Petitioner has been outstanding and this misconduct constitutes an isolated incident. An important part of this case is the testimony of experienced, mature coworkers and superiors, who are informed about the incident and have known Respondent for many years. Supporting Respondent in his effort at least to reduce the punishment, these employees provide a balanced view of the competing factors in finding the appropriate discipline. They weigh the importance of deterring employees from misusing expensive school equipment against the importance of, as provided by Petitioner's disciplinary guidelines, treating discipline not as punitive, but as corrective--in recognition of the fallibility of the human element and its preeminence among Petitioner's assets. The Administrative Complaint seeks a 10-day suspension and demotion under one factual misunderstanding--that Respondent did not redeem the computer until after he knew that Petitioner had uncovered the misconduct. Under all of the circumstances, including Petitioner's use of progressive, corrective discipline, the most serious discipline authorized by the disciplinary guidelines is a 10-day suspension without pay.
Recommendation It is RECOMMENDED that the Broward County School Board enter a final order finding Respondent guilty of misconduct in office and imposing a ten-day suspension without pay. DONE AND ENTERED this 2nd day of July, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 2002. COPIES FURNISHED: Dr. Franklin L. Till, Jr., Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Carmen Rodriguez, Esquire Carmen Rodriguez, P.A. 9245 Southwest 157th Street, Suite 209 Miami, Florida 33157 David T. Alvarez, Esquire Alvarez & Martinez, L.L.P. One East Broward Boulevard, Suite 604 Fort Lauderdale, Florida 33301
The Issue The nature of the instant controversy is whether Petitioner has just cause to terminate Respondent under section 1012.33, Florida Statutes (2015),1/ and whether Respondent's acts and/or omissions disqualify him from being employed in the Indian River County School District ("School District").
Findings Of Fact Based on the evidence presented at the final hearing, the undersigned makes the following findings of relevant and material facts: Respondent was employed by the School Board as a classroom teacher. As a teacher, Respondent was required to abide by all Florida Statutes which pertain to teachers, the Code of Ethics and Principles of Professional Conduct for the Education Profession in Florida, and all School Board policies. Testimony of William Fritz William Fritz, assistant superintendent for Human Resources and Risk Management, testified for the School Board. One of his primary duties is to conduct employee disciplinary investigations for the School Board. He is considered the "point person" for such matters. Fritz was informed by the fingerprint specialist in his office that Respondent had been arrested for felony DWLS. Subsequently, the same person informed him that Respondent had been convicted of the felony DWLS on October 6, 2015. The felony designation for Respondent's DWLS was based on this being his third or subsequent DWLS offense. The Judgment of Conviction dated October 6, 2015, designated the crime as "Driving While License Revoked-Permanently Revoked." Pet.'s Ex. F. After learning of Respondent's felony conviction, Fritz conducted an internal investigation. He had an informal discussion with Respondent to discuss the matter. This occurred in November 2015. When they met, Respondent told Fritz that he felt he did not need to self-report the conviction because the School District was automatically notified by the court.2/ Respondent explained to Fritz that there were some extenuating circumstances for the car trip that day involving a visit to a very ill friend. As a follow-up to the meeting, Fritz reviewed the School Board policies pertaining to discipline. He concluded that the situation likely warranted termination. He requested to meet with Respondent again, but his invitation was declined by Respondent. During the course of his investigation and review of Respondent's personnel file, Fritz concluded that Respondent had been put on employment probation by EPC in 2012 and that the probation was still active when the 2014 arrest and subsequent conviction in 2015 occurred. The EPC order proscribed certain conduct by Respondent during probation. The EPC order provided that Respondent "violate no law and shall fully comply with all District School Board policies, school rules, and State Board of Education rules." Fritz concluded that the DWLS conviction violated that provision of the EPC order, as well as certain School Board employee rules and policies. Notably, Fritz concluded that Respondent's 2015 felony DWLS conviction was a Category 3 violation of School Board Policy 3121.01. Convictions for Category 3 offenses, by definition, expressly prevented the hiring or retention of an employee "under any circumstances." Pet.'s Ex. K.3/ After reviewing all of the relevant documents and concluding his investigation, Fritz met with the School Board superintendent and recommended that Respondent be terminated. In arriving at that recommendation, Fritz took into account the mitigating factors explained by Respondent during their first meeting, namely needing to visit a sick friend. Fritz noted during his investigation that another final order of EPC had also been entered in 2007, disciplining Respondent for a conviction for driving under the influence ("DUI"). Fritz testified that there had been a termination of another teacher in the School District for a felony offense. The termination occurred in 2013 and was referred to DOAH, which recommended that termination was appropriate. There was no suggestion or testimony during the course of Fritz's testimony that the recommendation to terminate Respondent was related in any manner to problems with Respondent's job performance or other conduct on the job. Rather, the felony conviction violated School Board policy requiring termination and also constituted violations of the EPC order and resulting EPC probation. On cross-examination, Fritz acknowledged that the most recent felony conviction in October 2015 had not yet been addressed or ruled on by EPC insofar as Respondent's teaching certificate was concerned. Fritz further testified that a collective bargaining agreement ("CBA") exists which governs the discipline of teachers, including Respondent. Article 5.1, section (A) of the CBA, states as follows: Discipline of an MBU shall be progressive. Progression shall be as follows: documented verbal warning presented in a conference with the MBU, a letter of reprimand, suspension, termination. Serious first offenses may result in an immediate, strong consequence up to and including termination. Resp.'s Ex. 18. Fritz testified that Respondent's felony conviction for DWLS was a "serious first offense," which gave the School District the discretion to move directly to termination under Article 5.1, section (A) of the CBA.4/ When questioned by Respondent as to whether or not a felony conviction for a worthless check offense, for instance, could also result in a termination, Fritz pointed out Petitioner's Exhibit K, which specifically designated worthless check convictions as a different and separate "Category 5" offense. Category 5 offenses, by express definition and unlike Category 3 offenses, afforded the School District considerable leeway on discipline, on a case-by-case basis. Conversely, Fritz testified that a felony conviction for DWLS fell under a different category, "Category 3," and was considered significant and serious enough to warrant termination of the employee. Testimony of Brian Krystoforski Respondent started teaching in 1984 and is in his 24th year of teaching in the state of Florida. Respondent testified, and emphasized throughout the proceeding, that the School District was aware of a prior criminal traffic conviction and EPC sanctions in 2012 but, nonetheless, permitted Respondent to continue to teach in the School District.5/ Respondent testified that the 2012 EPC final order related, as well, to a prior DWLS felony conviction. Respondent testified that, on the date he was arrested for the 2015 DWLS conviction, he was driving to visit a good friend who had serious medical issues and was very depressed. However, he acknowledges his trip was a "bad decision." He characterized his plea of no contest on October 6, 2015, as more of a plea of convenience believing that his explanation for driving that day would mitigate the effect of the criminal plea and conviction before the circuit court judge. The undersigned has considered the collection of exhibits offered by the parties and admitted into evidence. The undersigned has also reviewed the plea colloquy from October 2015 before the circuit court judge who took Respondent's felony plea to DWLS.6/ Respondent emphasized that his felony conviction for DWLS should be evaluated using several mitigating factors found in Florida Administrative Code Rule 6B–11.007, Disciplinary Guidelines.7/ Insofar as the severity of this conviction is concerned, Respondent felt that he was just guilty of using "bad judgment." Furthermore, Respondent argues that he is not a danger to the public under one of the mitigating factors outlined in the Florida Administrative Code. Another mitigating factor Respondent felt should be considered is that he has been an educator for a long period of time. He felt that his commitment and participation as the football defensive coordinator at Vero Beach High School should also be considered a mitigating factor. Respondent felt that there had been no actual damage, physical or otherwise, caused by his driving while license suspended. Furthermore, in 24 years of teaching, he has never been considered for termination for any other conduct or offenses. Finally, he argues that the effect of termination on his livelihood and ability to earn a living warrants consideration. On cross-examination, the evidence revealed that Respondent had a conviction for DUI in 1988, a conviction for DUI in 1990, and a conviction for a DUI in 2002. In 2004, adjudication was withheld for driving while intoxicated on a revoked license. Respondent also conceded that EPC warned him that a permanent revocation of his educator certificate could occur under certain circumstances, particularly if the educator's certificate had been sanctioned by EPC on two or more previous occasions. Respondent testified that he had, indeed, been sanctioned by EPC on two previous occasions prior to this 2015 conviction for DWLS. There is also evidence to show that Respondent has been characterized as a "highly effective" teacher during recent evaluations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Indian River County School Board implement its preliminary decision to terminate the employment of Respondent. DONE AND ENTERED this 2nd day of May, 2016, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 2016.
The Issue The issue for determination is whether Petitioner's expulsion of Respondent from school is appropriate pursuant to provisions of Union County School Board Rule 5.37 and Section 230.23(6), Florida Statutes.
Findings Of Fact Respondent is R.S.V. He was a senior year student at Union County High School in October, 1994. Donald Leech was the principal of Union County High School in October, 1994, when he was apprised that there was a possibility of sale and possession of marijuana at the school. Leech contacted the school resource officer, Union County Sheriff's Deputy Charles Townsend, Jr., and an investigation was launched. Efforts of Townsend and Leech failed to yield any evidence of contraband substances on the school campus that could be linked to any individual or tested for purposes of subsequent prosecution. They had, however, obtained information about an event involving the alleged use of marijuana which had occurred on the school campus and allegedly involved Respondent. As a result, their investigation focused on Respondent. Townsend was apprised by his superior at the sheriff's department that a criminal prosecution could not be maintained due to the lack of admissible evidence or a "corpus delicti." Still, Leech and Townsend determined to question Respondent. On October 11, 1994, Leech and Townsend interrogated Respondent regarding his participation in the possession of a marijuana "joint" on school property on October 6, 1994. Townsend first apprised Respondent of his right against self- incrimination through the reading to Respondent of "Miranda" warnings regarding incriminating statements. The questioning then began. In response to questions, Respondent denied any knowledge of the October 6, 1994, incident. Leech failed to gain an admission from Respondent even though Leech advised Respondent that suspension for 10 days for being in an improper area (the school parking lot) was the only likely penalty. Leech then left the room. Respondent asked to telephone his mother. Townsend agreed. Respondent called his mother and explained the situation to her. She asked to speak with Townsend. Townsend told her that sufficient evidence existed to criminally prosecute Respondent. Respondent's mother told Townsend to cease questioning her son until Respondent's father arrived. Townsend complied and left Respondent alone in the room. Respondent's father soon arrived. He did not speak with Respondent. He, likewise, was informed by Townsend that sufficient evidence for prosecution existed, but that co- operation by Respondent would go a long way with authorities and have an impact on the likelihood of prosecution. Then, with the assent of Leech and Townsend, Respondent's father spoke privately with two other youths who were alleged to be involved in the incident. As a result of his conversation with the two youths, Respondent's father learned that his son had been present at a incident on school property where an alleged marijuana cigarette had been smoked but that his son had refused to participate in smoking the "joint." Respondent's father then spoke with Leech and Townsend. In addition to the earlier advice by Townsend of leniency if his son co-operated with the investigation, Respondent's father was now informed by Leech that only a 10 day suspension from school was contemplated because of Respondent's presence during the incident which had occurred in the school parking lot, an "improper area." Without any discussion with his son or legal counsel and solely in reliance upon the representations made to him by Leech and Townsend, Respondent's father then confronted his son and told Respondent to provide a written statement to Leech and Townsend. Respondent's statement reads as follows: On October 6, 1994. Myself, people 1 and people 2 walked out to the parking lot. People 1 lit up a marijuana joint and smoked it then passed it to people 2. After that, people 2 passed it to me. The 2 peoples walked off and I put it out and left it in the parking lot. After school I picked it up and kept it. Respondent later admitted to his father that he subsequently destroyed the remains of the cigarette after leaving school property. While Respondent's written statement references a "marijuana joint", no evidence was presented at the final hearing which is dispositive of whether the substance was, in actuality, cannabis. On the basis of Respondent's written statement, Leech instituted an immediate 10 day suspension of Respondent. On October 13, 1994, two days later, Leech formally recommended to the Union County School Superintendent, Eugene Dukes, that Respondent be expelled for the remainder of the school year. At final hearing, Leech rationalized that his expulsion recommendation was based upon Respondent's actual possession of the alleged contraband, as opposed to merely being present at the incident. By notice dated October 12, 1994, one day before the formal notification to him from Leech, Respondent's mother was informed by Superintendent Dukes that he would recommend the expulsion of Respondent for the remainder of the school year. The notice set forth no specific factual basis for the expulsion recommendation, but recited that the action was taken on the basis of misconduct charges set forth in Section 230.33 and Section 232.26, Florida Statutes, as well as Union County School Board Rules Section 5.37. Dukes also recommended the expulsion of the other students who admitted to actually smoking the alleged marijuana cigarette in question. The proposed expulsion of Respondent prevented his return to Union County High School and resulted in his completion of his senior year of high school in the school district of Columbia County, Florida.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered by the Union County School Board imposing a 10 day suspension upon Respondent for violation of school restrictions regarding his presence in an improper location. FURTHER RECOMMENDED that such final order direct the destruction or sealing of school records that document the expulsion of Respondent for possession of a controlled substance due to the absence of credible evidence to sustain such charge. DONE and ENTERED this 8th day of May, 1996, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 8th day of May, 1996. APPENDIX The following constitutes my ruling pursuant to Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's Proposed Findings 1. Accepted. 2.-11. Rejected, subordinate to HO findings. 12.-13. Rejected, legal conclusions, relevancy. 14. Rejected as to first preparatory phrase of the paragraph as unsupported by weight of the evidence. Remainder rejected as unnecessary to result reached. 15.-16. Rejected, subordinate to HO findings. 17.-18. Incorporated by reference. 19.-20. Rejected, subordinate. 21. Rejected, legal conclusion. Respondent's Proposed Findings 1.-10. Accepted, but not verbatim. Incorporated by reference. Accepted. COPIES FURNISHED: Ronald G. Meyer, Esquire Robert J. Sniffen, Esquire Meyer and Brooks Post Office Box 1547 Tallahassee, Florida 32302 Stephen N. Bernstein, Esquire Post Office Box 1642 Gainesville, Florida 32602 Eugene Dukes, Superintendent Union County School Board 55 West Sixth Street Lake Butler, Florida 32054 Frank T. Brogan, Commissioner Department of Education The Capitol Tallahassee, Florida 32399-0400
The Issue Whether just cause exists for Petitioner to suspend Respondent without pay and terminate her employment as a teacher.
Findings Of Fact The Parties Petitioner is a duly-constituted school board charged with operating, controlling, and supervising all free public schools within the Broward County, Florida, pursuant to Florida Constitution Article IX, section 4(b), and section 1012.23, Florida Statutes. At all times relevant to this proceeding, Respondent was employed with Petitioner as an exceptional student education ("ESE") teacher at Silver Ridge Elementary School in Broward County, Florida. The Events Giving Rise to this Proceeding Respondent has extensive educational training and experience in working with disabled and special needs students for many years. Respondent worked in the school system in Long Island, New York, as a paraprofessional for an estimated 13 to 14 years. Her duties included working with exceptional students at a cerebral palsy center, where she assisted teachers in changing students' diapers, feeding them, and assisting them in using various types of adaptive equipment. She also taught and tested special needs students having physical disabilities but possessing greater cognitive awareness. At the encouragement of teachers with whom she worked, Respondent pursued and received her bachelor's degree in elementary education in 1999, while continuing to work as a paraprofessional in the school system. Thereafter, she pursued her master's degree while working as a substitute teacher during the school year and as a teacher for summer school during the summer months. Respondent received her master's degree in special education in 2003. Respondent began working as an ESE teacher at Silver Ridge Elementary School in 2003, shortly after she moved to Florida. The allegations giving rise to this proceeding span the 2011-2012 and 2012-2013 school years. During both school years, Respondent's ESE students were disabled and most of them were nonverbal. Petitioner alleges that during both school years, Respondent engaged in physically and verbally aggressive and abusive actions toward students in her classroom in violation of Department of Education rules and Petitioner's policies. The 2011-2012 School Year Background Starting in August of the 2011-2012 school year, paraprofessionals Rostande Cherelus and Cara Yontz were assigned to assist in Respondent's classroom. Cherelus and Yontz both testified that they had a good working relationship with Respondent. However, this testimony is belied by the credible, persuasive evidence establishing that Respondent did not enjoy a smooth working relationship with either of them. The persuasive evidence establishes that the difficulties in Respondent's relationship with both paraprofessionals stemmed from their frequent tardiness, leaving the classroom during instructional time without Respondent's permission, and frequent use of their cell phones in the classroom during instructional time. Respondent let them know on many occasions that this behavior was not acceptable. The persuasive evidence further establishes that neither paraprofessional was particularly cooperative in assisting Respondent in the classroom. For example, when Respondent attempted to engage the participatory-level students in the various learning activities class, the paraprofessionals ——particularly Cherelus——would often respond with what Respondent characterized as "huffing and puffing," rolling of the eyes, crossed arms, and comments questioning the utility of engaging in activities to educate the students because "that kid can't do anything anyway." Respondent credibly testified that when admonished, Cherelus would make statements such as "thank God, God didn't give me a kid like that." Respondent consistently reported the ongoing problems with Cherelus and Yontz to then-Principal Marion Gundling and then-Assistant Principal Saemone Hollingsworth. However, it appears that this effort was in vain. By November 7, 2011, the situation in Respondent's classroom had deteriorated to the point that Respondent requested a meeting with Gundling and Hollingsworth to address the continuing problems with the paraprofessionals. After the November 7, 2011, the situation in Respondent's classroom did not improve. Respondent testified, credibly, that both paraprofessionals continued to be difficult to work with, that there was constant friction in the classroom, and that both paraprofessionals were aware of her lack of satisfaction with their behavior and job performance. They also knew that she communicated her dissatisfaction to the school administration. On December 1, 2011——notably, before Cherelus and Yontz alleged student abuse by Respondent1/——Respondent contacted Gundling and Hollingsworth by electronic mail ("email"), stating "[m]y classroom is an absolute disaster since our meeting." The email described in great detail2/ events, actions by the paraprofessionals, the dysfunctional atmosphere in Respondent's classroom arising from the paraprofessionals' behavior and poor job performance, and Respondent's continued dissatisfaction with them. On December 15, 2011, Yontz filed a written statement with the school administration alleging that Respondent had taken abusive actions toward students D.N. and J.M. Yontz's statement alleged that in October of that year, Respondent had become angry with D.N., screamed at her, and grabbed her hair from behind. The statement also alleged that in October of that year,3/ Respondent punished student J.M. by confining her to the classroom bathroom from 8:30 a.m. to 1:45 p.m. The statement further alleged that on December 15, 2011, Respondent had become angry with and screamed at student J.M., pushed her face, and attempted to secure J.M's glasses, which were too large for her face, with a rubber band. According to Yontz's statement, Respondent pulled J.M.'s hair, causing her to make noises indicating that she was in pain. Cherelus filed a written statement with the school administration on December 16, 2011, stating that when she had returned from break the previous day, J.M. was upset. According to Cherelus' statement, when she asked J.M. what was wrong, J.M. said "Ms. T. pull" and made a pulling motion while pointing to her glasses. On December 16, 2011, Respondent was removed from her classroom pending an investigation of the allegations against her made by Yontz and Cherelus. Ultimately, the investigation yielded insufficient evidence to support Yontz's and Cherelus' allegations and Petitioner took no disciplinary action against Respondent at that time. She was returned to her classroom in April 2012. Notwithstanding that the investigation absolved Respondent, Petitioner now seeks to take disciplinary action based on these accusations. Allegations in Amended Administrative Complaint In Petitioner's Amended Administrative Complaint filed in this proceeding on April 1, 2014, Petitioner alleges that during the 2011-2012 school year, Respondent engaged in physically and verbally aggressive and abusive acts toward students D.N., J.M., A.S., and C.A., who were assigned to her class. Each of these allegations is addressed below.4/ Student D.N. Petitioner alleges, in paragraph 5. of the Amended Administrative Complaint, that in October 2011, Respondent screamed at student D.N. for being unable to complete her work and pulled her hair. At the final hearing, Cherelus and Yontz both testified that one day in the classroom, Respondent grabbed D.N. by her ponytail. However, their testimony is inconsistent regarding key details and circumstances. Cherelus testified that Respondent grabbed D.N. and pulled her up from her chair because she had asked D.N. to get up and go get her classwork, and D.N. did not do so. Cherelus testified that Respondent said something to the effect of "[l]et's go, you don't want to do your work" and pulled D.N. up from her chair by her ponytail, causing D.N. to fall on the floor. Cherelus testified that D.N. screamed and Respondent let her go. Cherelus further testified that Respondent did not scream at D.N. Yontz, on the other hand, testified that Respondent screamed at D.N. because she was not focusing on the classwork in front of her on her desk. Yontz testified that at one point, Respondent grabbed D.N. by the back of the neck and forcefully held her head to keep her facing downward. Yontz testified that Respondent then grabbed and tugged D.N.'s ponytail and pulled her head backward to force her to look at her work. The inconsistencies between the Cherelus' and Yontz's testimony are significant. Cherelus described a situation in which Respondent jerked D.N.'s ponytail to make her get up from her desk, and that as a result, D.N. fell to the floor. However, Yontz described a situation in which D.N. remained seated and Respondent jerked her head backward by her ponytail to make her focus on the work on her desk.5/ Additionally, Yontz testified that Respondent screamed at D.N., while Cherelus specifically stated that she did not scream. Yontz testified that Respondent grabbed the back of D.N.'s neck, while Cherelus did not testify to that effect. Testimony regarding key details and circumstances surrounding the incident is vital to determining credibility in a case such as this, where the witnesses for both parties have differing accounts of the events at issue. Here, due to the inconsistencies in their testimony regarding significant details and circumstances regarding the alleged incident, the undersigned finds neither Cherelus' nor Yontz's testimony persuasive or credible. By contrast, Respondent provided a clear, detailed account of the incident that significantly differed from that provided by Cherelus and Yontz. On the day in question, Respondent was working with D.N., who has a movement-related disability, to direct her to focus on her work. Because of D.N.'s disability, she was easily distracted and often looked around at activity occurring on either side of her. Thus, when Respondent engaged in one-on-one instruction with D.N., she would stand behind D.N. and use a series of voice and gestural commands, verbal and gestural prompts, and physical prompts as necessary, to get D.N. to focus on her work. Pursuant to D.N.'s individual education plan ("IEP"), she had worn a weighted vest to assist her in focusing on her work, but shortly before the incident, her IEP had been amended to no longer include use of the vest, so Respondent had instead begun using physical compression on D.N.'s shoulders, with her thumbs touching the back of her neck, to assist D.N. in focusing. Respondent credibly testified that the compression was slight, not forceful. On the day in question, Respondent used the compression technique but D.N. continued to look around, so Respondent put her hands on the sides of D.N.'s face to focus her to gaze downward at her work. When Respondent removed the compression from D.N.'s shoulders, she popped backward. Respondent credibly testified that she did not pull D.N.'s hair or jerk her head backward by her ponytail. Respondent's account of the incident is credible and persuasive.6/ Further, the timing of Respondent's email communication with Gundling and Hollingsworth is significant to determining the comparative credibility of Respondent, Cherelus, and Yontz. Respondent's December 1, 2011, email to Gundling and Hollingsworth described in significant detail the events and actions that had taken place in Respondent's classroom following her November 7, 2011, meeting with them. Of particular note is Respondent's detailed description of Cherelus' actions on December 1, 2011, toward student D.N.——specifically, that Cherelus pulled D.N's hair and screamed at her. Respondent's email account of that incident, sent on the same day it was alleged to have occurred and describing it in substantial detail, is far more persuasive than both Cherelus' or Yontz's subsequent statements and hearing testimony regarding the incident. The credible, persuasive evidence leads to the inference that as a result of the paraprofessionals' poor relationship with Respondent, they accused her——after she had reported their poor performance——of the very conduct toward student D.N. that Respondent previously reported that Cherelus had committed. This is a far more reasonable inference than the version of events that Petitioner espouses——which would require the undersigned to infer that Respondent somehow knew that she was going to be accused, at a later date, of pulling D.N.'s hair and screaming at her, so she covered herself by preparing and sending the December 1, 2011, email accusing Cherelus of engaging in that same conduct. For these reasons, the undersigned finds the testimony of Cherelus and Yontz regarding the alleged incident involving D.N. incredible and unpersuasive. Conversely, the undersigned finds Respondent's testimony regarding D.N. credible and persuasive. Accordingly, Petitioner failed to prove the allegations in paragraph 5. of the Amended Administrative Complaint regarding student D.N. Student J.M. In paragraph 5. of the Amended Administrative Complaint, Petitioner alleges that in October 2011, Respondent confined student J.M. to the classroom restroom from 8:30 a.m. to 1:45 p.m. as punishment for urinating in her pants. Petitioner's direct evidence to support this allegation primarily consisted of Yontz's testimony.7/ According to Yontz, J.M. came to school one morning after having wet her pants the previous day, and Respondent immediately placed her in the classroom restroom, with the door closed, to punish her.8/ Yontz testified that Respondent left J.M. in the restroom by herself with the door closed beginning at 8:30 a.m. until 1:45 p.m., only being allowed to leave the restroom for lunch in the cafeteria. Yontz also testified that because J.M. was confined to Respondent's classroom restroom all day, the other students in Respondent's class had to use the restroom in other classrooms. Cherelus did not testify regarding this alleged incident.9/ Respondent's clear, credible explanation of this incident differed sharply from that provided by Yontz. Because J.M. frequently would urinate in her pants, her mother would send multiple sets of clothing to school so that Respondent could change J.M.'s clothes when this happened. J.M. had urinated on herself the previous day and had gone through her last set of clothing that day, so Respondent sent a note home to J.M.'s mother asking her to send a fresh set of clothing to school the following day. However, when J.M. arrived at school the next day, she had urinated in her pants and her mother had not sent extra clothing. Respondent changed J.M. into a borrowed set of D.N.'s clothing. J.M. again urinated in her pants and at that point, there was no extra clothing in the classroom for J.M. to wear. Respondent sent Cherelus to the school clinic to see if there was extra clothing that J.M. could wear and she also contacted J.M.'s mother to bring clothing to school for J.M. During the time it took for Cherelus to go to the clinic and return with clothing for J.M. to change into, Respondent put J.M. in the restroom. Respondent could not recall the exact amount of time that J.M. was confined to the restroom, but estimated that it was a short amount of time. She credibly testified that J.M. did not spend the entire day confined to the restroom, and that J.M. was not placed in the restroom as punishment, but, rather, to await a change of clothing. J.M.'s mother, Shakima Brown, verified Respondent's account of the incident. Brown testified that Respondent called her on the day in question to request that she bring a change of clothes to the school. Brown lived only ten minutes away, and she directed Respondent to place J.M. in the restroom until she could bring the extra clothing to the school. Brown testified, credibly, that J.M. had never communicated to her that Respondent confined her to the restroom as punishment, and that had that happened, J.M. would have let her know. The credible, persuasive evidence supports Respondent's account of this incident. The undersigned finds Yontz's account of this incident incredible and unpersuasive. Petitioner also alleges, in paragraph 6. of the Amended Administrative Complaint, that on December 15, 2011, Respondent verbally abused J.M., slapped her face, and popped her with a rubber band that she had tied to J.M.'s glasses in an effort to keep them on her face. Yontz is the only witness whose testimony Petitioner presented who claimed to have actually seen the incident. Yontz testified that on the day in question, J.M. was attempting to write her name but was unable to do so without making mistakes. According to Yontz, this annoyed Respondent, who screamed at J.M. Yontz testified that J.M.'s glasses kept falling off, so Respondent tied a rubber band on the ends of them to keep them from falling off. However, the rubber band was too tight so kept popping J.M.'s ear, causing her to make noises as if she were in pain. According to Yontz, Respondent pushed J.M.'s face and screamed at her "oh, you're so annoying, you freaking idiot." Yontz testified that Respondent did not slap J.M.'s face.10/ Cherelus' also testified regarding this incident. She testified that on that day, she took J.M. to another classroom, and that as she was doing so, J.M. cried. Cherelus testified that when she asked J.M. what was wrong, J.M. said "Ms. T slapped me" and gestured in a manner that Cherelus interpreted as showing that Respondent had slapped J.M.11/ On cross examination, Cherelus acknowledged that she did not see Respondent slap J.M., pull her hair, or otherwise hurt her. Cherelus further acknowledged that J.M. is largely nonverbal and incapable of articulating sentences, and that she only said "Ms. T." while making a pulling motion. In any event, Cherelus did not have personal, independent knowledge of this alleged incident, and her testimony was based on J.M.'s limited statement and gesture. Maureen McLaughlin, the child abuse designee for Silver Ridge Elementary School, also testified regarding this alleged incident. McLaughlin testified that Yontz brought J.M. to her office,12/ and that at Yontz's prompting, J.M., using a teddy bear, indicated that Respondent had pushed her head using an open hand. McLaughlin testified: [a]nd basically, it's hard to enact, but J. took her hand, sort of open like this, and what I remember is that her head turned, like, she turned her head. So it was hard to tell, like, is it a slap, is it a push, but it was an open hand and her head ended up being turned because of it. McLaughlin reported the incident to the abuse hotline.13/ Respondent provided a credible, persuasive explanation of the incident. She testified that J.M. previously had a pair of glasses that did not fit her and had used a teal elastic band to hold them on her face. At some point, J.M. lost both the elastic band and her glasses, so Respondent contacted J.M.'s mother regarding getting another pair of glasses for J.M.; however, J.M.'s mother told her that they could not afford to purchase another pair of glasses. Respondent gave J.M.'s mother a pair of glasses frames that had belonged to her daughter, and J.M.'s mother had the frames fitted with J.M.'s prescription. However, those glasses also did not fit J.M.'s face and fell off when she looked down. On the day in question, Respondent tried, unsuccessfully, to tie the glasses on J.M.'s face using a large rubber band. The rubber band popped, causing J.M. to make a sound. Respondent apologized, tried one more time to tie the glasses on J.M.'s face using the rubber band, then gave up. Respondent testified that while she was attempting to tie the glasses on J.M.'s face, J.M. was moving around, so Respondent had J.M. put her head down on the desk. J.M. was hearing-impaired and had put her head down on the side on which her functioning ear was located, so Respondent used her open hand to turn J.M.'s head to the other side. Respondent credibly testified that she did not slap J.M., scream at her, or pull her hair. J.M.'s mother, Shakima Brown, testified that she had been informed of the incident concerning J.M.'s glasses and that on her own, over a period of days, had asked J.M. several times if anyone had hit her. Brown testified, credibly, that J.M. said "no" every time she was asked.14/ The credible, persuasive evidence establishes that Respondent did not scream at J.M., did not slap her face, and did not intentionally hurt her by popping her ear with a rubber band. Accordingly, Petitioner failed to prove the allegations in paragraph 6. of the Amended Administrative Complaint. Student A.S. In paragraph 5. of the Amended Administrative Complaint, Petitioner alleges that Respondent handled A.S. in a physically rough manner, causing him to sustain a scratch on his neck. Cherelus testified that she did not recall any incident involving a student named "A.," and she could not recall his last name. Yontz testified that one day, she took the children out for recess, and as they were leaving, A. was in the room with Respondent. A. subsequently came outside and was crying, and Yontz observed scratch marks on A.'s neck. Yontz testified that she had asked what had happened, and Respondent told her that A. had scratched his neck on the corner of the counter as he put trash in the trash can. Neither Yontz nor Cherelus saw Respondent scratch A., and Petitioner presented no other evidence showing that Respondent scratched A. The sum of Petitioner's evidence regarding this allegation is that A. was scratched while in the classroom with Respondent. There is absolutely no competent substantial evidence in the record showing that Respondent scratched A. Additionally, neither Yontz nor Cherelus, or any other witness, specifically identified "A." as the student "A.S." named in paragraph 5. of the Amended Administrative Complaint. Thus, Petitioner failed to present any competent substantial evidence linking the testimony about "A." to any allegations in the Amended Administrative Complaint. Accordingly, Petitioner failed to prove the allegations set forth in paragraph 5. of the Amended Administrative Complaint involving student A.S. Student C.A. Petitioner alleges, in paragraph 7. of the Amended Administrative Complaint, that C.A. went home with scratches on his neck and face over a three-day period, and that when Respondent was questioned, she claimed that C.A. "had an encounter with a tree." Presumably, paragraph 7. is intended to charge Respondent with scratching C.A. and then lying about it. However, this paragraph does not expressly allege that Respondent scratched C.A. or otherwise injured C.A., so fails to allege that Respondent engaged in conduct that, if proven, would violate Petitioner's policies or Department of Education rules. Further, to the extent paragraph 7. could be read to sufficiently allege that Respondent scratched or otherwise injured C.A., there was no testimony presented at the final hearing by anyone having personal knowledge of the alleged incident. Thus, Petitioner failed to present any competent substantial evidence supporting this allegation.15/ Thus, Petitioner failed to prove the allegation involving student C.A. set forth in paragraph 7. of the Amended Administrative Complaint. The 2012-2013 School Year Background Petitioner alleges in the Amended Administrative Complaint that during the 2012-2013 school year, Respondent again engaged in physically and verbally abusive acts toward students assigned to her class. Paraprofessionals Shirley Brown and Monica Jobes were assigned to assist in Respondent's classroom in the 2012-2013 school year. That year, approximately nine ESE students were assigned to Respondent's classroom. The credible, persuasive evidence made abundantly clear that neither Brown nor Jobes enjoyed a smooth working relationship with Respondent. This was, in large measure, due to the fact that Respondent had high expectations regarding their performance in assisting her in the classroom, and she consistently reminded Brown and Jobes of those expectations.16/ In particular, Respondent made clear that her——and, by extension, the paraprofessionals'——job entailed taking reasonable and necessary measures to work with students to help them achieve to their capabilities. Respondent testified, persuasively, that neither Brown nor Jobes were dedicated to this approach and instead viewed their jobs more as caretakers or "babysitters" of the students for the school day. Respondent frequently made clear to Brown and Jobes that as the teacher, she was in charge of the class and the instructional approach and all other activities and aspects of classroom management. It was apparent from the credible, persuasive evidence that Brown and Jobes resented Respondent's repeated, overt assertion of authority over them. The persuasive evidence establishes that Brown was as much as a half-hour late to Respondent's class nearly every day, and that Respondent also regularly had to admonish her about frequent use of her cell phone for personal matters during instructional time. Brown also frequently disregarded Respondent's instructions on a range of student-related matters, and when Respondent confronted her, Brown verbally lashed out.17/ The persuasive evidence also establishes that Jobes often sent and received personal text messages during instructional time, causing her to be distracted and interfering with her work. The persuasive evidence established that Brown's and Jobes' behaviors were disruptive to the classroom environment and, in some instances, posed a danger to the students, and that Respondent let them know that their behavior was unacceptable. Shortly before the holiday vacation in December 2012, a holiday celebration was held in Respondent's classroom. While Respondent tended to the other students in the class and their parents, she specifically asked Brown and Jobes to stay with and tend to student C.R., since he did not have a parent present at the celebration. At some point, both paraprofessionals left C.R. alone. While unattended, C.R. ingested something to which he was allergic, went into anaphylactic shock, and ultimately had to be transported to the hospital. In early January 2013, shortly after school commenced following the holiday vacation, Respondent's students went to the music teacher's classroom. Brown was going to place C.R. on the floor, notwithstanding that Respondent had specifically directed her not to do so because he might again ingest something that could make him ill. At that point, Respondent told Brown not to place C.R. on the floor, to which Brown responded "don't worry, I got this" or something to that effect. Respondent tersely admonished Brown and reminded her that it was her (Respondent's) call because she was the teacher.18/ It was apparent from Brown's testimony that she greatly resented Respondent's assertion of authority over her. To address Brown's ongoing behavior and performance issues, Respondent requested a meeting on January 9, 2015, with Principal Hollingsworth, Assistant Principal Long, and ESE Supervisor Vickie Bloome. At the meeting, Hollingsworth informed Brown that Respondent had complained to her about her (Brown's) repeated cell phone use during classroom instructional time and directed her to refrain from using her cell phone during that time. Notwithstanding this meeting, nothing changed in Respondent's classroom. Respondent continued to experience friction in working with the paraprofessionals, who knew that Respondent had complained to the school administration about their performance. On January 16, 2013, an incident involving C.R., discussed in detail below, occurred. During this incident, C.R. became very aggressive, fought, bit and scratched himself, and grabbed for Respondent's insulin pump, which she wore on her arm. As discussed in greater detail below, Respondent and C.R. fell on the floor. Respondent prepared a written report detailing the incident. Persons who witnessed the incident, including Brown and Jobes, signed the report, and Respondent filed it with the school administration that day. On January 23, 2013, Respondent called a meeting with Jobes and Brown to address their ongoing performance issues, update them on student issues, and cover common core implementation procedures. In the email Respondent sent to Jobes and Brown regarding the meeting, she reminded them: "STILL seeing phones being checked and answered during class time. Even if a phone rings during class, it should NOT be answered until your personal time." At the meeting, Respondent once again reminded Brown and Jobes that they were not to use their cell phones during classroom instructional time. On the afternoon of January 23, 2013, following Respondent's meeting with her and Jobes, Brown reported to Assistant Principal Long an incident in which T.P. allegedly said "Ms. T. hurt me." At some point, Jobes also reported to Long that T.P. told her the same thing.19/ Jobes also sent an email to Hollingsworth that afternoon describing a situation in which T.P told her "Ms. T. hurt me." Thereafter, Long spoke with Respondent to get her version of what had happened. At some point on the evening of January 23, 2013, Respondent sent an email to Long stating that she had not been alone with T.P. that day. It was apparent from Respondent's email that she felt that could not trust Brown. She requested that Brown be removed from her classroom. Brown was removed from Respondent's classroom on the morning of January 24, 2013. At some point thereafter, Brown prepared, signed, and filed a report, dated January 23, 2013, alleging that Respondent had engaged in numerous aggressive and abusive acts toward students over a period of months. It is obvious in reading the report——which references Brown's removal from Respondent's classroom———that it was not prepared until sometime after Brown was removed from Respondent's classroom on January 24, 2015. Jobes also signed the report. She testified that Brown had prepared it and that she had contributed "notes." Brown also prepared and filed another written statement alleging that Respondent had engaged in specific instances of abusive and aggressive behavior toward students in her class. This report also was dated January 23, 2013, but again referenced her removal from Respondent's classroom, so obviously was prepared sometime after January 24, 2013. On the evening of January 24, 2013, Jobes sent an email to Hollingsworth requesting to be removed from Respondent's classroom. The email stated: "I came home today so stressed and exhausted from Ms. T all day at me." Jobes, who was pregnant, was concerned that the stress she was experiencing in working with Respondent in her classroom would adversely affect her health. On January 25, 2013, Jobes was removed from Respondent's classroom. On or about January 29, 2013, Respondent was removed from her classroom and reassigned to another position in the school system pending the outcome of an investigation conducted by the Broward County Sheriff's Office Child Protective Investigations ("CPI") Section. In a statement dated February 3, 2013, Jobes alleged that Respondent had taken aggressive and abusive actions toward certain students in her class over a period of months. She also stated that she felt bullied because Respondent, at times, spoke to her disrespectfully, and that Respondent would "constantly remind everyone in the room that she is the boss and if they wanted to be the boss then they need to go get a 4-year degree." Notably, prior to their January 23, 2013, meeting with Respondent, neither Jobes nor Brown had ever reported that Respondent had engaged in aggressive or abusive behavior toward her students.20/ Allegations in Amended Administrative Complaint In the Amended Administrative Complaint, Petitioner alleges that Respondent engaged in physically and verbally aggressive and abusive behavior toward specific students in her class. Each of these allegations is addressed below. Student M.M. In paragraph 9. of the Amended Administrative Complaint, Petitioner alleges that Respondent grabbed student M.M. by the back of her neck, held her head down in the garbage can to make her retrieve an open bag of chips, and forced her to eat them because she had asked for them. At the hearing, Brown and Jobes both testified that on one occasion during classroom snack time, Respondent had given M.M. a bag of chips at her request. M.M. ate a few chips, then tossed the bag in the trash can. Brown and Jobes testified that Respondent held M.M. by the back of the neck and forced her to remove the chips from the trash can. On direct examination, Jobes testified that Respondent forced M.M. to eat the chips, but on cross-examination, testified that, M.M. did not eat the chips. Brown testified that M.M. ate some of the chips but did not finish. Respondent confirmed that she did make M.M. retrieve the chips from the garbage can, but explained the context and the circumstances for making M.M. do so. She credibly denied that she had forced M.M. to eat the chips. Specifically, M.M. had been purchasing school lunches, but Jobes and Brown informed Respondent that M.M. was not eating her lunch. Respondent contacted M.M.'s mother, and collectively, Respondent and M.M.'s mother arrived at a plan in which M.M. would pick out her lunch and snack items at home. The items would be packed in her lunch box, and she would bring her lunch and snacks to school every day. M.M.'s mother also sent a large bag of snacks for M.M. that was kept in the classroom closet and M.M. would get the snack of her choice at snack time. M.M.'s mother specifically requested that Respondent send home anything that M.M. did not eat so that she (M.M.'s mother) would know what M.M. was and was not eating. On the day at issue, M.M. requested a bag of chips. Respondent gave them to her and M.M. returned to her seat, where she ate one or two chips, then threw the bag of chips away in the trash can. Respondent saw this and told M.M. to retrieve the chips from the trash can. Respondent did this so that she could send them home with M.M., consistent with the plan she had devised with M.M.'s mother. Consistent with Respondent's method of prompting M.M.'s behavior, she asked M.M. three times to remove the chips from the trash can. She then added a gestural prompt, done multiple times, that consisted of pointing to the trash can to inform M.M. exactly what she wanted her to do and where she was to go. When M.M. did not respond, Respondent took M.M. by the hand, led her to the trash can, and again gestured and asked her to remove the chips. Again, M.M. did not respond, so Respondent employed a physical prompt that consisted of placing her hand on M.M.'s shoulder and hand and applying enough pressure to show M.M. that she needed to bend down to retrieve the chips. At that point, with Respondent's help, M.M. retrieved the chips from the trash can. Respondent told M.M. to put them in her lunch box so that she could take them home, consistent with M.M.'s mother's request. Respondent credibly testified that she did not tell M.M. she had to eat the chips or force her to eat them. The evidence does not establish that M.M. cried or was distressed as a result of Respondent's actions, and there was no evidence presented to show that M.M. was injured or sickened as a result of this incident. The credible, persuasive evidence establishes that Respondent did not punish M.M. for throwing the chips away, that she did not forcefully grab M.M. by the back of the neck or hold her head down into the trash can, and that she did not force M.M. to eat the chips. The evidence instead shows that Respondent's actions in dealing with M.M. on this occasion were appropriate and were consistent with her discussions with M.M.'s mother. Petitioner did not prove the allegations in paragraph 9. of the Amended Administrative Complaint. Student T.P. In paragraph 10. of the Amended Administrative Complaint, Petitioner alleges that in December 2012, Respondent force-fed student T.P., causing him to regurgitate. The undisputed evidence establishes that T.P. often refused to eat. On the day in question, T.P. purchased lunch from the cafeteria but he refused to eat the lunch, so was brought back to the classroom, where Respondent attempted to get T.P. to eat his lunch. Brown testified that Respondent forced a piece of chicken and chicken skin into T.P.'s mouth, that he was crying hysterically, and that he gagged. Brown further testified that Respondent made a video recording of T.P. eating. Jobes, who also was present when the incident occurred, did not testify that Respondent force-fed T.P.——only that Respondent was verbally urging T.P. to eat plantains. She did not testify that T.P. gagged or regurgitated. She also testified that Respondent made a video recording of the incident. Respondent testified that T.P. was a very picky eater who did not eat well, and that he regurgitated on the way to lunch every day. She testified, credibly, that she had discussed this issue with T.P.'s parents, and they had directed her to encourage him to eat.21/ Because the sight of other students eating or the smells of food would cause T.P. to vomit, he typically ate at a small table in the cafeteria positioned so he could see the outdoors. On the day in question, the students ate lunch in the classroom. T.P. was having particular difficulty eating that day because he was situated with the entire class as they ate, making him uncomfortable. In an effort to persuade T.P. to eat, Respondent went over to him, picked up a piece of food and coaxed him to eat. T.P. regurgitated all over his food. At that point, Respondent stopped trying to persuade T.P. to eat and sent a note home to his parents describing what had happened. Respondent's version of events is credible. By contrast, the testimony of Jobes and Brown regarding this incident was inconsistent, incredible, and unpersuasive. Thus, Petitioner did not prove the allegations in paragraph 10. of the Amended Administrative Complaint. In paragraph 14. of the Amended Administrative Complaint, Petitioner alleges that on January 23, 2013, Respondent grabbed T.P. by the back of the neck and pushed him toward the door, causing him to stumble and fall to the ground and to verbalize that "Ms. T. hurt me." Jobes testified that on that day, she was in the cafeteria when Brown and T.P. entered, with T.P crying. Jobes testified that Brown told her at lunch that she (Brown) had heard some kind of altercation while she was in the classroom restroom. Jobes did not see Respondent grab, push, or take any other action toward T.P. Jobes testified that later that day, T.P. told her "Ms. T. hurt me," and held his hands in a "U" shape. Jobes interpreted that as indicating that Respondent had choked T.P. Brown testified that she actually saw Respondent grab T.P. by the back of the neck and push him toward the door, causing him to fall, and that he got up, crying, and went with Brown and the rest of the class to lunch. She testified that later in the afternoon, T.P. told her and Jobes that "Ms. T. hurt me." Specifically, she testified: I didn't understand him clearly, you know. So Ms. Jobes was on the other side. He turned, he said 'Ms. Jobes, Ms. Jobes, Ms. T. hurt me, she grabbed me like this." And I, like, what? He said 'I'm going to tell them, I'm going to tell them, Ms. Brown, that Ms. T. hurt me, you see, Ms. T. hurt me.' The undersigned finds Brown's testimony incredible and unpersuasive. First, Brown's statement that she actually saw Respondent grab and push T.P. is inconsistent with her statement made to Jobes while at lunch that same day, that she had been in the restroom at the time and had heard an altercation. Further, the evidence showed that while T.P. is somewhat verbal, he is not capable of the extended, coherent discourse that Brown claims he verbalized in telling her and Jobes that Respondent had hurt him. The undersigned also assigns no weight to Jobes' testimony regarding whether the alleged incident actually occurred. Jobes did not witness the alleged incident, so has no personal independent knowledge regarding whether it occurred. Thus, Petitioner did not prove the allegations in paragraph 14. of the Amended Administrative Complaint. Student M.P. In paragraph 11. of the Amended Administrative Complaint, Petitioner alleges that in an effort to make M.P. stop crying, Respondent jerked her chair backward to scare her to make her stop crying, and that when M.P. did not stop crying, Respondent laid the chair down on the floor so that M.P.'s feet were in the air, leaving her in that position for approximately 20 minutes. Brown and Jobes both testified that M.P. often cried and rocked back and forth in her chair. They testified that in order to make M.P. stop crying, Respondent would try to scare her by jerking the chair backward. Then, if M.P. did not stop crying, Respondent would lay her chair down on the floor so that M.P.'s feet were in the air, and she would leave M.P. in that position until she cried herself to sleep. Both Brown and Jobes testified that they had seen Respondent do this on numerous occasions. Respondent acknowledged that she had, on more than one occasion, laid M.P. down on the floor in the Rifton chair,22/ but, again, provided credible context for taking this action. Specifically, as a result of her exceptionality, M.P. would constantly verbalize and often would rock in her chair. When she became agitated, she would rock her chair so violently that she tipped the chair backward. Initially, Respondent had moved M.P.'s chair against a bookshelf, but M.P. banged her head on the bookshelf. In an effort to prevent M.P. from hurting herself, Respondent then removed M.P. from her chair and placed her on the floor; however, M.P. banged her head on the floor. At that point, Respondent placed M.P. in the Rifton chair. M.P. continued to rock violently, so Respondent ordered a Rifton chair with footrest; however, that measure did not solve the problem with M.P.'s rocking. Respondent then considered placing M.P.'s chair up against the teacher's desk, which would help stabilize the chair but had nothing against which Respondent could bang her head. On one occasion, as Respondent tipped the chair back at a 45-degree angle to place it against her desk, she noticed that M.P. calmed down and closed her eyes. Thereafter, Respondent would sometimes tip M.P.'s chair against her or her desk if she was not otherwise occupied with activities. However, when she was occupied with other activities, she would sometimes completely recline the Rifton chair, with M.P. strapped in it, on the floor. She did this because it calmed M.P., who otherwise would constantly vocalize, cry, and rock back and forth. To determine whether this was an appropriate technique, Respondent asked colleagues who also taught ESE students about their view of this technique and whether there were better techniques of which they were aware. Respondent testified, credibly, that the consensus among other ESE teachers was that if the technique worked to soothe the child and did not endanger her, it was appropriate to use. Respondent also had consulted regularly with occupational specialist Mariana Aparicio-Rodriquez regarding techniques to prevent M.P. from rocking her chair so that she would not tip her chair over and injure herself, but they had not collectively arrived at a solution to the problem. Respondent testified that she and Aparicio-Rodriquez had not specifically discussed reclining the Rifton chair on the floor with M.P. strapped in it. One day, while Respondent was alone in the classroom, Aparicio-Rodriquez entered the classroom and saw M.P. completely reclined on the floor in the Rifton chair. Initially, Aparicio- Rodriquez was alarmed that M.P. had tipped the chair over. Aparicio-Rodriquez testified that Respondent told her that she had placed M.P. on the ground to give her a sense of what it felt like to fall back. Respondent then picked up the chair and placed M.P. in an upright position. Aparicio-Rodriquez confirmed that during the entire time that she was in Respondent's classroom, M.P. was calm, unhurt, and not in distress, and that she did not cry. Aparicio-Rodriquez testified that she did not believe this was an appropriate or useful technique for teaching M.P. not to rock in her chair, and she had intended to report the incident to her supervisor, but because one of Respondent's paraprofessionals informed her that the matter was going to be reported, Aparicio-Rodriquez did not report it. Aparicio- Rodriquez testified that she did not consider the incident to constitute child abuse, so did not report it to the Department of Children and Families. On cross-examination, Aparicio-Rodriquez stated that it was her opinion, from an occupational therapist's perspective, that using the Rifton chair in such a manner was not appropriate; however, she conceded that placing M.P. on the floor in a reclined position in the Rifton chair was not unsafe, and that M.P. was neither hurt nor in imminent or potential danger. She acknowledged that she and Respondent had a difference of opinion regarding the propriety of the use of the Rifton chair in this manner.23/ Aparicio-Rodriquez did not identify any statute, rule, policy, or other applicable standard that was violated by Respondent's use of the Rifton chair in this manner. The persuasive evidence supports the inference that Respondent's placement of M.P. in the Rifton chair in a reclined position on the floor was not intended as a disciplinary measure to frighten or punish M.P. for crying or rocking in her chair, and was appropriate under the circumstances. Respondent credibly testified that she had tried numerous measures to prevent M.P. from harming herself while rocking back and forth, and that when she inadvertently discovered this technique, she discussed it with other ESE professionals, who had suggested that she continue using it since the child was not distressed or injured and the technique worked to soothe her and prevent her from rocking back and forth and potentially injuring herself. Aparicio-Rodriquez disagreed with Respondent regarding the appropriateness of the technique, but she was neither qualified nor presented as an expert witness in appropriate teaching techniques for ESE students or in any other subject, and she did not identify any applicable professional or other standards that were violated by Respondent's use of the Rifton chair in this manner. The persuasive evidence establishes that Aparicio- Rodriquez and Respondent had a difference of opinion regarding the appropriateness of this technique; however, unlike Aparicio- Rodriquez, Respondent had actual successful experience in using this technique without harming M.P. Thus, Respondent's view regarding the appropriateness of using this technique under the circumstances is afforded greater weight than Aparicio- Rodriquez's view. Petitioner did not prove that Respondent distressed, injured or otherwise harmed M.P., placed M.P. in danger, or violated any applicable statute, rule, policy, teaching technique, or standard by placing M.P. in the Rifton chair in a reclining position. Thus, Petitioner did not prove the allegations set forth in paragraph 11. of the Amended Administrative Complaint. Petitioner also alleges that on one occasion, Respondent disciplined M.P. for crying by placing a plastic bag of ice directly on M.P.'s bare chest, and when that technique was unsuccessful, Respondent placed the bag of ice on M.P.'s back, causing her to cry more loudly. Petitioner presented the testimony of Jobes to substantiate this allegation. Jobes testified that "a couple of times," she saw Respondent place bags of ice under M.P.'s clothing on her bare skin in an effort to get M.P. to stop crying, but that M.P. would not stop crying. Petitioner did not present the testimony of any other witnesses to corroborate Jobes' testimony. Respondent flatly denied ever having placed ice on M.P. for any reason, and stated that under any circumstances, she did not know how that would have helped make M.P. stop crying. Respondent also denied having kept ice in the refrigerator in her classroom. Respondent's testimony was credible, and Jobes' testimony was not credible, regarding these allegations. Accordingly, Petitioner did not prove the allegations in paragraph 12. of the Amended Administrative Complaint. Student C.R. In paragraph 13. of the Amended Administrative Complaint, Petitioner alleges that on one occasion, Respondent removed C.R. from his wheelchair, screamed in his ear, held both hands behind his back, laid him face-down on the floor, and laid on top of him for several minutes as he gasped for air. The undisputed evidence shows that on the morning of January 16, 2013, student C.R. (also referred to as "C.J." in the final hearing testimony) arrived at school in an extremely emotionally-distressed state. Although C.R. is a small child who weighs approximately 30 pounds and is confined to a wheelchair, he becomes physically aggressive when distressed and is capable of inflicting injury on others by biting, scratching, and hitting. Upon arriving at school that day, C.R. physically struggled with school personnel, including Jobes, Brown, and Cherelus. Brown took C.R., still upset, in his wheelchair to Respondent's classroom, where he was placed in his classroom chair. C.R. attempted to grab, bite, and scratch Respondent, Jobes, and Brown, bit his own hands, and rubbed and scratched his own face, arms, and legs. Respondent left him in his chair and he eventually calmed down. At that point, Respondent removed C.R. from his chair and carried him to another classroom, where the rest of the class was engaged in instructional exercises. Thereafter, when Respondent carried C.R. back to her classroom, C.R. again became very upset and bit and scratched her. At that point, Respondent notified the school administration and C.R.'s mother of the incident involving C.R. that morning. Assistant Principal Long visited Respondent's classroom to determine what had happened. As of 11 a.m. that day, C.R. was still seated in his classroom chair aggressively biting his own hands and rubbing and scratching his face, arms, and legs.24/ Respondent prepared and submitted an incident report detailing these events, and Brown, Jobes, and Cherelus, and another school staff member, Julie Weiss, signed and dated the report that same day. Jobes testified she read the January 16, 2013, incident report before signing and dating it that same day. She stated that although she had signed the document without being under duress, she had questioned Respondent regarding its accuracy before signing it. Brown testified that she signed the January 16, 2013, incident report that day, but did not read it before she signed it. It is undisputed that at some point in the day on January 16, 2013, Respondent and C.R. ended up on the floor of Respondent's classroom, with Respondent laying on top of C.R. However, there is conflicting evidence regarding the time of day, sequence of events, and circumstances that led to this incident. Jobes and Brown both testified that the events that led to Respondent and C.R. being on the floor with Respondent laying on top of C.R. occurred in the morning after C.R. came to school in an emotionally distressed state, and that Respondent had placed C.R. on the floor and laid on top of him to punish him for his aggressive behavior. However, their testimony is contradicted by the version of events detailed in the January 16, 2013, incident report——which they both had signed and dated that same day, thus tacitly acknowledging its accuracy. As discussed in greater detail below, the credible, persuasive evidence establishes that the incident during which Respondent and C.R. ended up on the floor actually occurred later that same day, and that afterward, C.R. was taken from the classroom to the school clinic and did not return to the classroom for the rest of the day. Had Brown and Jobes been correct regarding the time of day when the incident occurred, C.R. would have been removed from the classroom during the morning. However, according to the January 16, 2013, incident report, C.R. was still in the classroom as of approximately 11 a.m. that day. Indeed, according to the incident report, Assistant Principal Long visited the classroom to investigate the events that were detailed in the report. Had C.R. been removed from the classroom in the morning after the incident, Long would have discovered that when she visited the classroom.25/ Further, Respondent would have known that so would not have stated in the written incident report that C.R. was still in the classroom as of 11 a.m. that day. It is undisputed that Jobes did not actually witness Respondent place C.R. on the floor. Jobes testified that when she looked over from another part of the classroom where she had been tending to other students, she saw C.R. face down on the floor with Respondent on top of him. Notwithstanding that by her own admission, Jobes did not witness the entire incident between Respondent and C.R., she nonetheless testified that Respondent held C.R. down on the floor for three to five minutes.26/ Brown claims to have witnessed the entire incident between Respondent and C.R. She testified that C.R. was acting aggressively, so to punish him, Respondent picked him up, flipped him around, placed him face-down on the floor, and laid on top of him for approximately 20 seconds as he gasped for breath. As noted above, the credible, persuasive evidence establishes that the allegation regarding Respondent laying on top of C.R. arose from an incident that occurred later in the day on January 16, 2013, after lunch and after the incident that had happened earlier that day. The credible evidence establishes that when C.R. returned to Respondent's classroom after having had lunch in the cafeteria under Jobes' and Brown's supervision, his face was red and he was scratching himself and squirming in his chair. Respondent became very concerned, from the previous experience that school year, that C.R. was again having an allergic reaction to something he had eaten. Respondent removed C.R. from his wheelchair in order to place him in his Rifton chair so that she could administer his epi-pen to counter any allergic reaction he might have been having. Respondent is diabetic and wears an insulin pump strapped to her left arm. Respondent testified, credibly, that as she was removing C.R. from the wheelchair, he grabbed at her insulin pump. In an effort to prevent C.R. from pulling her insulin pump off of her arm, Respondent jerked her hand and arm backward, causing her to lose her balance. She fell to the floor with C.R. and landed on top of him. Respondent estimated that she and C.R. were in that position for perhaps five seconds,27/ at which point she scrambled off of C.R. and placed him in his Rifton chair. C.R. was then taken to the clinic to address his allergic symptoms and did not return to the classroom that day. Respondent testified, credibly, that Brown did not witness the entire event because for part of it, she was in the restroom with M.P., consistent with their established routine after the students returned from lunch. The undersigned finds Jobes' and Brown's version of the incident unpersuasive and incredible.28/ Their testimony was imprecise, inconsistent, and directly contradicted by other credible evidence regarding the incident. By contrast, Respondent's testimony regarding the incident was specific, precise, and detailed. The undersigned finds her account of the incident credible and persuasive. Thus, Petitioner failed to prove the allegations in paragraph 13. of the Amended Administrative Complaint. Allegations Regarding Unspecified Students Petitioner alleges, in paragraph 8. of the Amended Administrative Complaint, that Respondent "was observed grabbing students by the arm and forcefully pulling them to the ground." The Amended Administrative Complaint does not identify the students whom Respondent is alleged to have treated in such a manner. Jobes testified that "one or two times" she had seen Respondent grab a student by the arm and pull that student to the ground in an effort to get the student to sit down. She could not recall which students she allegedly saw Respondent treat in that manner and she did not provide any detail regarding these alleged incidents. Her testimony was not corroborated by any other competent evidence in the record and was too vague and lacking in detail to be deemed credible or persuasive. Brown testified that on one occasion, Respondent pushed M.P. to make her walk faster, causing her to fall to the ground. Although Brown identified the specific student, she provided no temporal context or detail regarding the incident. Her testimony was confused and imprecise, so was neither credible nor persuasive. Petitioner failed to prove the allegation in paragraph 8. of the Amended Administrative Complaint that Respondent grabbed students by the arm and forcefully pulled them to the ground. Petitioner also generally alleges, in paragraph 8. of the Amended Administrative Complaint, that on occasion, Respondent would grab students by the neck to force them to look at their work. However, neither Brown nor Jobes identified any specific students to whom Respondent's alleged conduct was directed or provided any detail or context in which these alleged incidents occurred, and their testimony was too vague and imprecise to be deemed credible or persuasive. Petitioner did not present any other competent substantial evidence to substantiate this allegation. Respondent testified that at times, it was necessary for her to physically focus students' attention on their work. At those times, she would place her hands on the student's head and turn the student's face down toward the desk so that the student could attend to his or her work. She testified that she did not grab students by the back of the neck or engage in any forceful techniques as she focused their attention on their work. Her testimony was credible and persuasive. Thus, Petitioner failed to prove the allegation in paragraph 8. of the Amended Administrative Complaint that Respondent grabbed students by the neck and forced them to look at their work. Petitioner also alleges, in paragraph 8. of the Amended Administrative Complaint, that "[i]n one incident, Respondent crumbled [sic] a student's paper into a ball before throwing it at the student." The student whom Respondent is alleged to have treated in this manner was not identified in the Amended Administrative Complaint. Paragraph 8. specifically states that the incidents alleged therein occurred "shortly after the commencement of the school year in August 2012." However, the only evidence Petitioner presented in support of this allegation was the testimony of Cara Yontz, a paraprofessional assigned to Respondent's classroom in the 2011-2012 school year——a completely different school year than Respondent's actions alleged in the Amended Administrative Complaint. Thus, Petitioner failed to present any evidence to substantiate this allegation in paragraph 8. Even assuming that the reference in the Amended Administrative Complaint to the 2012-2013 school year was a drafting error and that Petitioner actually intended to allege that Respondent engaged in such conduct during the 2011-2012 school year, Petitioner still did not prove this allegation by credible, persuasive evidence. Yontz testified that on one occasion, a student named "D." was having difficulty with his work and that twice, when he turned his work in to Respondent, she yelled at him, crumpled up his paper, and threw it back at him, causing him to cry. Petitioner did not present any other competent substantial evidence to support this allegation. Respondent denied having thrown D.'s paper at him and testified, credibly, that she never had thrown anything at any student. The undersigned finds Respondent's testimony on this point credible and persuasive. Thus, Petitioner failed to prove the allegation in paragraph 8. of the Amended Administrative Complaint that Respondent crumpled a student's work and threw it at him. Petitioner also alleges in paragraph 8. that Respondent verbally abused unspecified students, making statements such as "they're so stupid," and that she was "happy that God never gave her kids like them." Petitioner did not present credible, persuasive evidence proving this allegation, and Respondent credibly testified that she had not, and would not, ever address a student in such a manner. Failure to Provide Statement On March 4, 2013, the Broward District Schools Police Department issued a Notice to Appear for Statement ("NTA") to Respondent, informing Respondent that an investigation regarding a reported incident had been initiated. The NTA informed Respondent that on March 11, 2013, she was required to appear at a designated location and provide a statement as part of the investigation. The NTA further informed her that a representative of her choice could be present during the statement and that her failure to appear on the scheduled date and to provide a statement would constitute gross insubordination and lead to disciplinary action up to and including termination. Respondent is a member of the Broward Teacher's Union ("BTU") and was represented by Diane Watts, a field staff representative with BTU, in the investigation. Watts had contact with Kathleen Andersen, a detective with the Broward District Schools Police Department regarding scheduling the appointment and other matters with respect to Respondent's statement. At some point before Respondent was to appear and provide her statement, Andersen called Watts to give her a "heads-up" that the investigation was "going criminal"——meaning that a criminal investigation was being commenced and that criminal charges may be filed against Respondent. Watts testified, credibly, that when a matter "goes criminal," the BTU retains a lawyer to represent the member being investigated. At that point, BTU had not yet retained an attorney to represent Respondent in any investigation that may "go criminal." Under those circumstances, it is customary for the employee not to appear and provide a statement. Watts testified, credibly, that she informed Andersen that under the circumstances, Respondent would not appear as scheduled on March 11, 2013, to provide the statement. Watts understood Andersen to have agreed that, given the circumstances, Respondent was not required to appear and, in fact, she credibly testified that she believed Andersen had called her to give her a "heads-up" specifically so that she and Respondent would not make a wasted trip to appear at the location of the scheduled statement, only to find out there that the investigation had "gone criminal"——at which point, Watts would have advised Respondent not to make a statement pending BTU's retention of a lawyer to represent her. Based on her belief that she had an understanding with Andersen, Watts advised Respondent that she was not required to appear and provide a statement on March 11, 2013. Therefore——specifically at Watts' direction and advice——Respondent did not appear and provide a statement on March 11, 2013. At the final hearing, Andersen disputed that she had agreed with Watts that Respondent did not need to appear and provide a statement as directed in the Notice to Appear. Andersen testified that pursuant to Petitioner's Policy 4.9, Respondent was required to appear and provide a statement, and that she had not done so.29/ IV. Findings of Ultimate Fact Petitioner seeks to suspend Respondent without pay and to terminate her employment as a teacher on the basis of just cause, pursuant to section 1012.33, Florida Statutes. The statute defines just cause to include immorality, misconduct in office, incompetency, gross insubordination; and being convicted of or found guilty of, or entering a plea of guilty of, regardless of adjudication of guilt, any crime involving moral turpitude. Here, Petitioner charges that just cause exists, on each of these bases, to suspend Respondent without pay and terminate her employment. As more fully addressed below, Petitioner bears the burden of proof, by a preponderance of the evidence, to establish each element of each offense with which Respondent is charged. Further, whether Respondent committed the charged offenses is a question of ultimate fact to be determined by the trier of fact in the context of each alleged violation.30/ For the reasons discussed in detail above, Petitioner failed to prove, by a preponderance of the competent substantial evidence, any of the allegations in the Amended Administrative Complaint, and therefore failed to prove any of the administrative charges stated in the Amended Administrative Complaint. Petitioner asserts in Petitioner's Proposed Recommended Order that "Petitioner had a number of witnesses to testify to these various events. Respondent had none." This mischaracterizes the evidence presented in this case. Although Petitioner presented the testimony of four persons having personal knowledge of some of the incidents, for several of the allegations, Petitioner presented the testimony of only one witness who had personal knowledge of the alleged incidents, and, as discussed above, often that testimony was not credible. Even when Petitioner presented the testimony of more than one witness regarding a particular allegation, as discussed above, often that testimony was inconsistent on significant details, calling into serious question the credibility and reliability of the testimony. Also, Respondent herself testified. Her testimony was clear, precise, credible, and persuasive, and she provided consistent, logical accounts of the incidents that gave rise to the allegations in the Amended Administrative Complaint.31/ In addition to her own testimony, Respondent presented the testimony of the mother of student J.M., who credibly supported Respondent's version of the incident giving rise to one of the allegations involving her daughter. Here, the undersigned did not find the testimony of Cherelus, Yontz, Brown, or Jobes credible or persuasive on most of the matters about which they testified. As discussed in detail above, in many instances their testimony was vague, unclear, or inconsistent with other testimony or evidence. Moreover, it was abundantly clear that each of these paraprofessionals found Respondent difficult to work with because she was demanding, did not tolerate lax performance, and consistently reminded them that as teacher, she was in charge of the management of her classroom. It was apparent that each of them resented her frequent assertion of authority over them. Each of them had ample motive to be untruthful or to exaggerate regarding certain events——such as those involving J.M. being placed in the restroom, C.R. and Respondent falling on the floor, and T.P. being fed by Respondent. In other instances——such as reclining M.P. in the Rifton chair or directing M.M. to retrieve her snack from the trash can——it is plausible to infer that the paraprofessionals misunderstood Respondent's actions and judged to be inappropriate, when, in fact, they were appropriate under the circumstances. Another factor militating against the paraprofessionals' credibility is that each of them was a mandatory child abuse reporter under Florida law, each of them knew that, and each understood her legal duty. Nonetheless, most of the incidents alleged in the Amended Administrative Complaint were not reported until sometime after the incident is alleged to have occurred. In particular, Brown and Jobes first reported that Respondent had engaged in abusive behavior only after she had taken measures to address their classroom performance issues, including her requesting a meeting with the principal and holding her own meeting aimed at, again, addressing their unacceptable behavior and performance. Petitioner focuses on a statement in Respondent's January 23, 2013, email thanking Brown and Jobes for their efforts as indicating that up to that point, Respondent and the paraprofessionals enjoyed a smooth working relationship and that Respondent did not have any problems with their performance, and, in fact, was pleased with their performance. However, this position is contradicted by the strong evidence showing otherwise. Respondent's emails to the school administration dated December 1, 2012, and January 9, 10, and 23, 2013, particularly speak to the ongoing difficulty she was having with both paraprofessionals, even before they submitted statements alleging that she had abused students. Further, the testimony by Brown, Jobes, and Respondent shows that the relationship between Respondent and the paraprofessionals was not a smooth one. In sum, the evidence establishes that the paraprofessionals were not reliable witnesses, and their testimony was neither credible nor persuasive. Conversely, Respondent's testimony was credible and persuasive. Accordingly, Petitioner failed to prove, by a preponderance of the competent substantial evidence, that Respondent engaged in conduct during the 2011-2012 and 2012-2013 school years that violated Department of Education rules and school board policies, and, thus, constituted just cause to suspend Respondent without pay and terminate her employment. Petitioner also has charged Respondent with gross insubordination for failure to appear and provide a statement to the Broward District Schools Police Department on March 11, 2013. As discussed above, the credible, persuasive evidence establishes that Respondent did not appear and provide a statement to the Broward Schools Police Department specificially because she had been directed and advised by her BTU representative not to do so. Further, even if Watts did not, in fact, have an understanding with Andersen that Respondent would not provide a statement, it is undisputed that Watts told Respondent that such an understanding existed so that she did not need to appear and provide a statement. Thus, the credible, persuasive evidence establishes that Respondent did not intentionally refuse to appear and provide a statement, but, instead, simply and reasonably followed the advice and direction of her BTU representative, who had specifically told her not to appear and provide a statement. Under these circumstances, it cannot be inferred that Respondent intentionally refused to obey a direct order, reasonable in nature. Accordingly, the credible, persuasive evidence establishes that Respondent did not commit gross insubordination. Based on the foregoing, it is determined that Petitioner failed to meet its burden to prove, by a preponderance of the competent substantial evidence, that Respondent engaged in conduct, alleged in the Amended Administrative Complaint, that violates Department of Education rules and school board policies. Accordingly, Petitioner did not prove that just cause exists to suspend Respondent without pay and terminate her employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Broward County School Board, enter a final order dismissing the Amended Administrative Complaint against Respondent; reinstating Respondent's employment as a teacher; and awarding Respondent back pay for the period of her suspension, less the amount of back pay that would be owed for the period commencing on November 6, 2013, and ending on January 23, 2014.42/ DONE AND ENTERED this 22nd day of October, 2015, 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 22nd day of October, 2015.
The Issue The issue in this case is whether just cause exists for Petitioner, the St. Lucie County School Board, to terminate the employment of Respondent, Josephine Knight.
Findings Of Fact Petitioner is the School Board of St. Lucie County, Florida (hereinafter referred to as the "School Board"). Respondent, Josephine Knight, is employed by the School Board pursuant to a professional services contract. Ms. Knight has been employed as a teacher for approximately 15 years. At all times relevant to this matter, Ms. Knight was assigned to work at St. Lucie Elementary School (hereinafter referred to as the "Elementary School"). At all times relevant to this matter, the principal of the Elementary School was Dr. Jayne Hartman. Prior to the 1997/1998 school year, Dr. Hartman interviewed Ms. Knight for a position at the Elementary School and subsequently recommended her for a position. Ms. Knight was assigned as a temporary fourth grade teacher during the 1997/1998 school year. Ms. Knight was assigned as a third grade teacher for the 1998/1999 school year. Ms. Knight had been assigned to fourth grade class while employed by the School Board until this year. Ms. Knight was disappointed with her new assignment. During her first two years of assignment to the Elementary School, Dr. Hartman observed Ms. Knight and made suggestions for improvement. Rather than accepting Dr. Hartman's efforts to constructively criticize her, Ms. Knight grew resentful and defensive. Although the evidence failed to support Ms. Knight's characterization of her treatment during the 1997/1998 and 1998/1999 school years, Ms. Knight felt that she was being subjected to "unremitting harassment from her principal." Ms. Knight responded to Dr. Hartman's criticism by attempting to transfer from the Elementary School to another school within the School Board's district. Ms. Knight was unsuccessful in finding another school that would accept her. Dr. Hartman recommended Ms. Knight's reappointment at the Elementary School for the 1999/2000 school year. Prior to the commencement of the 1999/2000 school year Dr. Hartman directed all staff, including Ms. Knight, to attend a staff breakfast on August 16, 1999. The breakfast was to be followed by a meeting of all teachers in the media center of the Elementary School. Dr. Hartman had arranged for teachers assigned to teach the same grade to sit together during the meeting and had prepared handouts for each teacher. Those handouts were placed at each teacher's assigned seat. Ms. Knight failed to attend the breakfast on August 16, 1999. She did attend the teachers' meeting, but arrived late and refused to sit at the table with the other third grade teachers. On August 18, 1999, Ms. Knight again arrived late for a staff meeting. Later in the morning of August 18, 1999, Ms. Knight wrote a note to Dr. Hartman informing her that she intended to use comp time during lunch. Rather than follow school policy, Ms. Knight left during lunch without first determining whether her use of comp time had been authorized. On August 19, 1999, Dr. Hartman spoke to Ms. Knight in the morning and told her that she needed to speak with her. Ms. Knight went to see Dr. Hartman later that same day. Dr. Hartman verbally counseled Ms. Knight. Dr. Hartman spoke to Ms. Knight about her lateness in arriving at staff meetings, her use of comp time prior to getting approval, and her refusal to sit with other third grade teachers as she had been directed. Dr. Hartman asked Ms. Knight to explain her actions, but Ms. Knight took notes and refused to answer Dr. Hartman. Due to Ms. Knight's misconception that she was being harassed by Dr. Hartman and in anticipation of the August 19, 1999, counseling session, she had prepared a letter of resignation the night before the August 19th meeting with Dr. Hartman. During the August 19th meeting, Ms. Knight gave Dr. Hartman the letter (hereinafter referred to as the "Resignation Letter"). In pertinent part, Ms. Knight wrote the following in the Resignation Letter: The intended purpose of this letter is to inform you of my resignation from my present position as a third grade teacher so soon after starting my fifteenth year in the system. After considering my remaining options, I decided to depart from this position because of YOU and the lack of professionalism displayed on your behalf. I have been subjective [sic] to an extraordinary amount of harassment every [sic] since I've been under you supervision. This included lack if [sic] administrative support, extreme and undue stress, your trifling and vindictive ways, and last but not least, your prejudice and racist attitude towards students, minorities, and me. These are conditions in which no one should be subjective [sic] to in the workplace. In fact, it seems to almost define going postal. You and I know the countless times I have tried to relocate to another school unsuccessfully. Which means as [sic] September 2, 1999 I will be resigning. [Emphases added]. The accusations Ms. Knight made in the Resignation Letter concerning Dr. Hartman, to include the allegations that she knew of Ms. Knight's unsuccessful efforts to transfer, are incorrect. Those accusations were the result of Ms. Knight's inability to deal with constructive criticism. After fully considering the Resignation Letter and Ms. Knight's negative attitude toward her, Dr. Hartman reasonably concluded that Ms. Knight had threatened her and she reasonably became concerned for her personal safety. On the evening of August 19, 1999, Dr. Hartman contacted Russell Anderson, the Assistant Superintendent of Human Resources, and reported the incident to him. Dr. Hartman also contacted Jane Grinstead, her immediate supervisor, and read the Resignation Letter to her. Finally, Dr. Hartman contacted Dave Morris, the Coordinator of Safety/Security for the School Board, and advised him of Ms. Knight's reference to "going postal." The morning of August 20, 1999, School Resource Officer McGee met with Dr. Hartman. Officer McGee was assigned to stay with Dr. Hartman the entire day because of the threat contained in the Resignation Letter. Mr. Russell, Dr. Hartman, and Officer McGee met with Ms. Knight and a union representative on August 20, 1999, to discuss the Resignation Letter. When asked about her reference to "going postal," Ms. Knight admitted that she understood that it meant to "kill or shoot your boss," or words to that effect. Following the meeting of August 20, 1999, a Friday, Ms. Knight was informed that she would be placed on temporary duty assignment from Monday, August 23, 1999, until the effective date of her resignation, September 1, 1999. On Monday, August 23, 1999, Ms. Knight withdrew her resignation. Because it had not been approved by the School Board, the resignation was considered rescinded. In light of the threat of violence contained in the Resignation Letter, the School Board informed Ms. Knight on August 24, 1999, that she was suspended without pay pending a review and final resolution of the matter. Based upon a review of Ms. Knight's personnel file, Mr. Russell concluded that Ms. Knight should be terminated from employment with the School Board. In addition to the Resignation Letter, Mr. Russell considered certain incidents described in paragraph 7 of a Statement of Charges to Terminate Respondent Josephine Knight's Employment with Petitioner (hereinafter referred to as the "Statement of Charges"). Mr. Russell conferred with Dr. William Vogel, the Superintendent of Schools, concerning the matter. Mr. Russell recommended that Ms. Knight should be terminated from employment with the School Board. By letter dated October 6, 1999, Dr. Vogel informed Ms. Knight that he would be recommending her termination from employment to the School Board due to her "violation of School Board Policies." Ms. Knight timely requested a formal administrative hearing to contest Dr. Vogel's decision. The Statement of Charges further defines the basis for the School Board's action in this case: That the foregoing acts as set forth in this statement and attached exhibits, constitutes just cause under Fla. Stat. s 231.36(1)(a) to terminate Josephine Knight's employment with the St. Lucie County School Board. See Fla. Stat. s 231.36 and School Board policy 3.57 attached as Exhibit O. School Board policy 3.57 provides, in pertinent part, the following anti-violence in the workplace policy: All employees will refrain from any speech, conduct, activity, or behavior of any type that is reasonable interpreted as abusive, profane, intolerant, menacing or intimidating. No speech, behavior, activity or other conduct shall occur or be made by any employee where it is reasonably interpreted that the primary motivating intent is to intimidate, threaten or abuse any person in the workplace. The School Board has zero tolerance for violations of this policy. Any person employed by the School Board who communicates a threat of violence to any other School Board employee is subject to termination. The particular incidents which the School Board considered in concluding that there was just cause for Ms. Knight's termination and that the foregoing policy had been violated by Ms. Knight included the comment about "going postal" in the Resignation Letter and the incidents described in paragraph 7 of the Statement of Charges. While the incidents described in paragraph 7 of the Statement of Charges may indicate a lack of judgment, unacceptable treatment of students, and a hot temper on Ms. Knight's part, they are not relevant in considering whether Ms. Knight displayed conduct contrary to School Board policy 3.57 or just cause. Ms. Knight's Resignation Letter, however, does support the School Board's decision. Based upon the events of August 16 and 18, 1999, Dr. Hartman reasonably concluded that Ms. Knight's comment about "going postal" in the Resignation Letter was primarily motivated by an intent to "intimidate, threaten or abuse" her. The day after the Resignation Letter was provided to Dr. Hartman, Ms. Knight admitted to Dr. Hartman and Mr. Russell that she knew what the terms meant and no other reasonable explanation has been offered by Ms. Knight to explain why she made the comment. Ms. Knight's suggestion at hearing that she was merely trying to get the School Board's attention so that she would be transferred to another school was not convincing and, even if true, would not diminish the reasonableness of Dr. Hartman's reaction to the threat.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the St. Lucie County School Board finding just cause for the termination from employment by the School Board of Josephine Knight. DONE AND ENTERED this 18th day of August, 2000, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 2000. COPIES FURNISHED: Elizabeth Coke, Esquire J. David Richeson & Associates, P.A. Post Office Box 4048 Fort Pierce, Florida 34948 Lorene C. Powell, Esquire Florida Education Association 1718 East 7th Avenue, Suite 301 Post Office Box 5675 Tampa, Florida 33675 Dr. William Vogel, Superintendent St. Lucie County School Board 2909 Delaware Avenue Fort Pierce, Florida 34947 Honorable Tom Gallagher Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 101 Tallahassee, Florida 32399-0400
The Issue The issue is whether Petitioner has just cause to suspend Respondent without pay for thirty days for misconduct in office, as provided in Florida Administrative Code Rule 6A-5.056(2) and School Board Policies 3210, 3210.01, and 3213, for using profanity toward a student and engaging with the student's parent in a violent confrontation with profanity and threats.
Findings Of Fact For the 2015-16 school year, Petitioner employed Respondent as a physical education teacher at Homestead Middle School. On May 27, 2016, Respondent and another physical education teacher, George Malvestutl, had instructed the students to leave the girls' locker room after physical education class. About 20 minutes later, the teachers saw a student hiding in the locker room. The teachers entered the locker room and found three students still in the locker room without permission. When Respondent directed the students to leave the locker room, one or more of the students became belligerent and yelled at him in defiance. Mr. Malvestutl called security to escort the girls out of the locker room. About one minute after Respondent had first engaged with the students and before security could arrive, the students left the locker room, but the situation escalated when the teachers directed the students to report to the office. At this point, the students used profanity toward Respondent, and one of them threatened to call her father to come to school and "kick [Respondent's] ass." After several minutes, they left the area and walked toward their class in direct defiance of the teachers' directive to report to the office. Respondent did not have time to report the incident to the office because he had a class to teach. But, about 30 minutes after the confrontation had ended, Respondent received a call from the principal's secretary directing Respondent to come to the office. When he entered the office, the secretary pointed him to a man who was waiting to see Respondent. Without introducing himself or informing himself about what had happened, the man immediately threatened to "kick [Respondent's] ass" and said something about his daughter. Respondent answered that the man needed to learn about what had taken place and walked away from the man, leaving the office. The man followed Respondent into the hallway and, standing about ten feet from Respondent, continued to threaten Respondent, who suggested that the daughter was misbehaving due to the misbehavior of the father, who was behaving "like an idiot," Respondent added. The exchange was briefly heated, although probably more while in the office than in the hallway. The exchange in the hallway lasted no more than one minute, and the exchange in the office was even briefer. At no time did either man place a hand on the other. Eventually, the angry father calmed, as he realized that his daughter had not told him the entire story. During the exchange in the hallway, the assistant principal entered the hallway, but did not say anything and quickly retreated to his office to call the police, although the entire incident had ended before the police arrived on the scene. The principal entered the hallway and, at one point, blocked the father's path toward Respondent, but the principal did not say anything either. After the incident, Respondent asked the principal if he could go home for the day, but the principal asked him to remain if he could, and Respondent agreed to remain at school. Later that day, the principal visited Respondent and asked him if he was okay. Respondent replied that he was fine, and the principal smiled. On direct, the principal testified that Respondent uttered profanity during his confrontation with the parent-- specifically using the "f" word several times and the "n" word once. Respondent, who is black, denied the use of any profanity, including these words. The principal's credibility was undermined by the fact that he omitted these important details when he gave his statement to the school police a few days after the incident. Based on the testimony that has been credited, Petitioner has failed to prove that Respondent mishandled in any way the two exchanges with the angry parent, who clearly either misunderstood what his daughter had told him or was misled by his daughter.
Recommendation It is RECOMMENDED that Petitioner enter a final order finding that the 30-day suspension of Respondent without pay lacked just cause and, pursuant to section 1012.33(6)(a), reinstate Respondent, if necessary, and pay Respondent his back salary. DONE AND ENTERED this 7th day of July, 2017, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 July, 2017. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761 (eServed) Kim M. Lucas, Esquire Miami Dade County Public Schools School Board Attorney's Office 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Alberto M. Carvalho, Superintendent Miami Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132-1308
