The Issue The first issue in this case is whether, as the district school board alleges, a teacher called her students "tonto" or stupid, threw books to the ground and forced students to pick them up, and put her feet and shoes in students' faces; if these allegations are proved to be true, than it will be necessary to decide whether the school board has just cause to suspend the teacher for 10 workdays, without pay.
Findings Of Fact The Miami-Dade County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. As of the final hearing, Respondent Walkyria Dolz ("Dolz") had been a teacher for more than 40 years. Having begun her career in Cuba, Dolz emigrated in 1974 from her native country to the United States, where she continued to teach in New York City and Miami. An employee of the Miami-Dade County Public School System for the preceding 15 years, Dolz worked as a music teacher at Riverside Elementary School during the 2008- 09 school year, which is the period relevant to this case. Dolz did not have a classroom of her own at Riverside. Rather, she traveled from room to room, using a cart to transport books and musical instruments. Dolz visited each class to which she was assigned once per week for one hour. In this way, in a given year, she taught hundreds of Riverside students in grades one through five. In her long career, Dolz had never been the subject of a disciplinary proceeding until this matter began. Indeed, she had been (and as of the hearing continued to be) a respected member of Riverside's teaching staff. Much evidence supports this finding, but the following statement, which was written on May 21, 2009, by Riverside's principal, Sharon López, is instructive: Ms. Dolz has been under my supervision as school principal since December 12, 2002. She has always exhibited professional behavior as a classroom teacher and properly represented Riverside Elementary in all school functions off-campus. Ms. Dolz has met standards for classroom observations since her employment as a music teacher at Riverside Elementary in 1998. The allegations [at issue here] are out of character for Ms. Walkyria Dolz. The alleged misconduct primarily giving rise to this case allegedly occurred in November 2008, in a fifth-grade classroom. Based on the stories of several students, the School Board avers that Dolz: (a) attempted to kick a student in the face; (b) waived a sandal in (or at) another student's face; (c) dropped a book to quiet the students; and (d) called the students "tonto," a Spanish word the School Board contends means "stupid." Dolz consistently has denied having done any of these things and testified to that effect at hearing. The young children who testified against Dolz did not impress the undersigned as being accurate and reliable witnesses. The account of R. S.——who claimed that Dolz silently had approached his desk, removed her sandal (while balancing on one foot), and swung the footwear at his face as he sat there in fear, all without saying a single word during the entire event, which lasted at least three minutes (according to R. S.)——was incredible on its face. While it is not inconceivable that Dolz (or any teacher) could snap in the face of some provocation or incitement, the undersigned can neither believe nor find (on this evidence at any rate) that a veteran teacher with a clean disciplinary record suddenly became a bizarre, zombie-like creature for several minutes out of an otherwise ordinary workday and wordlessly set upon a well-behaved student for no reason. Similarly implausible was A. L.'s testimony about the foregoing alleged incident and another where Dolz supposedly nearly kicked a student named L. J. in the face with her foot, while standing on one leg, because L. J. was not playing his instrument properly. A. L.'s testimony in this regard is rejected not only because Dolz, 67, appeared to be physically incapable of kickboxing a child, but also because the undersigned is skeptical that a teacher who has taught for decades without incident——and who has always behaved professionally except, allegedly, in this one instance——would lose control of herself to such a degree merely because of a student's poor musical performance.1 A third student, A. W., testified that Dolz hit R. S. and L. J. on their arms. The School Board itself did not accept this testimony as credible, and neither does the undersigned. A. W.'s lack of credibility on this significant matter undermined his credibility in general. On balance, Dolz was a more credible witness than R. S., A. L., or A. W. The undersigned accepts her denial of wrongdoing as truthful and finds that, more likely than not, Dolz did not attempt to kick or strike any student. The remaining charges are much less serious. Several children testified that, when the students were talkative or inattentive, Dolz threw a textbook on the floor or a table to make a loud noise, which would get the class's attention. Dolz denies ever having done this. The undersigned finds that the evidence is insufficient to prove that Dolz used a textbook to threaten, embarrass, or humiliate a student, or otherwise in a manner that was objectively unseemly, untoward, or unreasonable under the circumstances. Some children testified that Dolz referred to her students as "tonto," an allegation which she denies. There is conflicting evidence concerning the meaning of the word "tonto" in Spanish. While the word can mean "stupid," as the School Board maintains, it also means "silly," as Dolz points out, and, depending on the context, can be used to suggest that someone is acting like a clown or fooling around. Based solely on the evidence presented, the undersigned cannot find that the Spanish term "tonto" is insulting per se, and the absence of any proof regarding the context in which Dolz allegedly uttered the word precludes a finding that she used it in a hurtful manner, if she used it at all. Determinations of Ultimate Fact The greater weight of the evidence fails to establish that Dolz is guilty of the offense of misconduct in office as defined in Florida Administrative Code Rule 6B-4.009(3).2 The greater weight of the evidence fails to establish that Dolz is guilty of the offense of unseemly conduct, which is prohibited under School Board Rule 6Gx13-4A-1.21.3 The greater weight of the evidence fails to establish that Dolz is guilty of violating the School Board's Code of Ethics, which is set forth in School Board Rule 6Gx13-4A-1.213.4
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order exonerating Dolz of all charges brought against her in this proceeding and awarding her the back pay, plus benefits if any, which accrued while she served the previously imposed suspension of 10 workdays. DONE AND ENTERED this 8th day of January, 2010, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 2010.
The Issue Whether just cause exists for Petitioner, Polk County School Board, to terminate Respondent, Jean Regan, from her employment as a teacher.
Findings Of Fact Under Florida law, whether charged conduct constitutes a deviation from a standard of conduct established by statute or rule is a question of fact to be decided by the trier-of-fact, considering the testimony and evidence in the context of the alleged violation. Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985); McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d 489 (Fla. 1st DCA 1995). Thus, deciding whether Ms. Regan’s alleged conduct violates the law as charged in the School Board’s termination letter is a factual, not legal, determination. Based on the weight of the credible evidence, the School Board failed to establish by a preponderance of the evidence that Ms. Regan acted dishonestly by assisting students in selecting correct answers. Ms. Regan credibly denied ever assisting the students in that manner. In fact, the credible evidence confirmed that Ms. Regan had little opportunity to read the passages to determine the correct answers and, given that the students had different versions of the FSAT, it was highly improbable that she could have known the correct answers when moving from student to student. Based on the weight of the credible evidence, the School Board failed to establish by a preponderance of the evidence that Ms. Regan acted dishonestly by otherwise violating the FSAT standards. The credible evidence confirmed that Ms. Regan permissibly could: touch the test booklets and point at items while providing oral accommodations; flip through the test booklet to look for the questions the students had identified as needing an accommodation because that is exactly how they practiced in the classroom; and encourage the students to make sure that they completed the test by reading the corresponding directions, particularly after they prompted her to do so, just as they learned in class.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner, Polk County School Board, issue a final order reinstating the Respondent, Jean Regan, as a classroom teacher and awarding her back pay to the date on which the School Board first suspended her without pay. DONE AND ENTERED this 26th day of February, 2020, in Tallahassee, Leon County, Florida. S ANDREW D. MANKO 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 26th day of February, 2020. COPIES FURNISHED: Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761 (eServed) Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP 245 South Central Avenue Bartow, Florida 33830-4620 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-4000 (eServed) Jacqueline Byrd, Superintendent 1915 South Floral Avenue Post Office Box 391 Bartow, Florida 33831 Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-4000 (eServed)
The Issue Whether just cause exists for Petitioner to terminate Respondent's employment as a teacher.
Findings Of Fact Based on the parties' stipulations and the competent substantial evidence adduced at the final hearing, the following findings of fact are made: The Parties Petitioner, Broward County School Board, is charged with the duty to operate, control, and supervise free public schools in Broward County pursuant to article IX, section 4(b) of the Florida Constitution and section 1012.33, Florida Statutes. Respondent has been employed by the District as a physical education teacher since 2004. His last teaching assignment was as a physical education teacher at Crystal Lakes Middle School in Pompano Beach, Florida. Administrative Charges The alleged conduct giving rise to this proceeding occurred on or about May 18, 2018. The Administrative Complaint alleges that on that day, Respondent did not fully cover his early morning duty in the school cafeteria, did not fully attend his assigned homeroom, and did not attend his first period class, thereby leaving his students unsupervised for part of those periods; and reported to work under the influence of controlled substances——specifically, alcohol and cocaine. As a result of this alleged conduct, Petitioner has charged Respondent, in the Administrative Complaint, with violating Florida Administrative Code Rule 6A-5.056(2), (3), (4), and (5), and specified provisions of school board policies 2400, 4008, and 4.9, discussed in greater detail below. Events Giving Rise to this Proceeding On the morning of May 18, 2018, Respondent reported to work under the influence of alcohol and cocaine, both of which are defined as "controlled substances" by school board policy. As a result, Respondent did not fully cover his early morning cafeteria duty, did not fully attend his assigned homeroom, and did not attend his first period class. A fellow physical education teacher, Cindi Ancona, was forced to cover Respondent's first period class. During the portions of the periods in which Respondent was not present in his classroom and in which Ancona was not covering his class, his students were left unsupervised. Ancona saw Respondent at the beginning of second period. When she questioned Respondent regarding his whereabouts during first period, she noticed that he appeared confused and off— balance and that his eyes were glassy, so she sent a text message to Sabine Phillips, the Principal at Crystal Lake Middle School, regarding Respondent's demeanor and appearance. Phillips and Assistant Principal Ben Reeves responded to Ancona's text message. Reeves entered the boys' locker room and found Respondent lying down in his office outside of the locker room. Phillips then entered the locker room and told Respondent that he needed to go to the office with her and Reeves. In the course of questioning Respondent about where he had been during his first period class, Phillips surmised, and informed Respondent that she had reasonable suspicion, that he was under the influence of controlled substances. Phillips contacted the District's Special Investigative Unit to request that Respondent be subjected to testing to determine whether he was under the influence of controlled substances. Phillips followed the designated procedures, which entailed completing and transmitting a completed Incident Report Form to the designated District personnel. The Risk Management Department determined that the requested testing was warranted and transmitted an Anti—Drug Program Passport to Phillips, who delivered it to Respondent. The Anti—Drug Passport informed Respondent that he would be subjected to controlled substances testing, and that the testing would be performed at Crystal Lakes Middle School. Respondent consented to the drug and alcohol testing. The Risk Management Department sent an employee health testing collector to Crystal Lake Middle School, where she conducted a breath alcohol and urine test on Respondent. The breath alcohol testing indicated that Respondent had blood alcohol levels of .101 and .095, both of which exceed the blood alcohol level of .04 that Petitioner has adopted as the threshold for being under the influence of alcohol. Petitioner's third—party contractor confirmed that Respondent had a blood alcohol level of .095 at the time he was tested. Julianne Gilmore, an environmental health testing specialist with the District's Risk Management Department, contacted Phillips and Respondent, notifying them both that Respondent was being placed on Administrative Reassignment and was to remain at home——i.e., not report to work——pending the result of the drug testing. This informal contact was followed by a letter dated May 21, 2018, confirming that Respondent had been placed on Administrative Reassignment and directing him to stay home pending further notice.1/ Gilmore also advised Respondent of the availability of the District's Employee Assistance Program ("EAP"), participation in which was not mandatory.2/ The results of Respondent's drug test were received by the Risk Management Department on or about June 1, 2018. Respondent tested positive for cocaine. Respondent does not dispute that he was under the influence of alcohol and cocaine while at school on May 18, 2018, and also does not dispute accuracy of the results of the blood alcohol and drug tests. Upon receiving the results of Respondent's drug test, it was determined3/ that Respondent's employment with the District should be terminated, notwithstanding that the next step in sequential progressive disciplinary process ordinarily would be suspension. A significant consideration in this decision was that Respondent had left his students unsupervised, placing their safety at risk. No evidence was presented that the students in Respondent's class were actually physically or psychologically injured or harmed as a result of Respondent being absent from his classroom on May 18, 2018. Prior Discipline Petitioner has a policy (Policy 4.9, discussed below) of imposing discipline in a progressive manner, which means that discipline typically is imposed in sequential steps in order to afford the employee the opportunity to correct his/her conduct and performance before he/she is suspended or terminated. The progressive discipline policy authorizes sequential disciplinary steps to be skipped for sufficiently severe misconduct. Petitioner previously has disciplined Respondent. On April 21, 2016, Petitioner issued a Summary of Conference memo, memorializing a conference in which Respondent was verbally admonished for having briefly left the students in his class unattended while he took an injured student to the physical education office to tend to his injury, during which time some of the students physically assaulted other students in the class. On February 10, 2017, Petitioner issued a Verbal Reprimand to Respondent, reprimanding him for being tardy to, and absent from, work without following the proper protocol for entering an absence. On December 1, 2017, Petitioner issued a Written Reprimand to Respondent, reprimanding him for continuing to be tardy to, and absent from, work without following the proper protocol for entering an absence. On February 14, 2018, Petitioner issued another Written Reprimand to Respondent, reprimanding him for consistently failing to follow absence/tardy—reporting procedures, resulting in his students being left unsupervised. He was informed that if he again failed to adhere to the appropriate procedure, he would be subject to further discipline, including possible termination of his employment. Other Key Considerations in this Proceeding Respondent was forthright in admitting that he suffers from a substance abuse problem. In 2016, Respondent sought help for his substance abuse issue through the District's EAP program at Phillips' suggestion, but did not complete the program——in part because he did not find its methods helpful in dealing with his problem, and in part because he believed that he could overcome his problem on his own as he always had done in his life. Respondent has come to realize that he cannot overcome his substance abuse problem on his own and that there is no shame in asking others for help in dealing with his problem. To that end, Respondent participated in, and has completed, the Evolution substance abuse program, which consisted of counseling sessions three to four days a week, for a three—to— four—month period, and attending therapy classes and meetings each week. As a condition of participation in Evolution, Respondent was subject to random substance abuse testing. He did not test positive for alcohol or drug use during his participation in the program. The spiritual counseling and substance abuse trigger counseling that Respondent received in the Evolution program have resonated with him and have helped him successfully address his substance abuse problem.4/ In order to avoid backsliding, Respondent remains in weekly contact with one of his therapists at Evolution, and attends meetings three to four times a week, to place himself in an environment that enables and fosters his success in fighting his substance abuse problem. Since commencing Evolution, Respondent has not engaged in alcohol or drug use. Respondent expressed remorse at his behavior and poor judgment at having reported to work under the influence of controlled substances on May 18, 2018. He testified that he did so because he previously had been reprimanded for being absent, and was concerned about missing more school. He recognized that his choice to go to school in that condition was "bad thinking at the time." Respondent credibly testified that he greatly enjoys teaching and that he chose teaching as a career because he loves working with kids, relates well to them, and believes he can help them. His colleague, Tyrell Dozier, testified that Respondent gets along well with his students and is a caring, effective teacher. Findings of Ultimate Fact As noted above, the Administrative Complaint charges Respondent with having violated State Department of Education rules and specified school board policies. Specifically, Petitioner has charged Respondent, pursuant to rule 6A—5.056, with misconduct in office, incompetency, gross insubordination, and willful neglect of duty. Petitioner also has charged Respondent with violating school board policies 2400(1) and (3); 4008 B.1., 3., and 8. and certain provisions of Policy 4.9. Whether the charged offenses constitute violations of the applicable rules and policies is a question of ultimate fact to be determined by the trier of fact in the context of each alleged violation. Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1985)(whether there was a deviation from the standard of conduct is not a conclusion of law, but instead is an ultimate fact); McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995)(whether a particular action constitutes a violation of a statute, rule, or policy is a factual question); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995)(whether the conduct, as found, constitutes a violation of statutes, rules, and policies is a question of ultimate fact). Based on the foregoing, it is found, as a matter of ultimate fact, that Respondent violated some, but not all, of the rules and school board policies charged in the Administrative Complaint. By engaging in the conduct addressed above, Respondent committed misconduct in office under rule 6A—5.056(2), which includes violating Florida Administrative Code Rule 6A— 10.081(2)(a), by having left his students unsupervised. By engaging in the conduct addressed above, Respondent engaged in conduct constituting incompetency under rule 6A—5.056(3). By engaging in the conduct addressed above, Respondent engaged in conduct constituting gross insubordination under rule 6A—5.056(4). By engaging in the conduct discussed above, Respondent engaged in conduct constituting willful neglect of duty under rule 6A—5.056(5). Respondent violated Policy 2400(1) by reporting to work while under the influence of controlled substances. However, no evidence was presented that Respondent was in possession of, or used, a controlled substance while on school board property or at a school—sponsored activity. Rather, the evidence establishes that Respondent consumed alcohol and used cocaine in a social setting the night before he reported to school on May 18, 2018. Therefore, the evidence does not establish that Respondent violated Policy 2400(3), as charged in the Administrative Complaint. Policy 4008, subsections (B)1. and 8., requires school board employees to comply with State Board of Education rules and school board policies. As discussed above, the evidence shows that Respondent violated rule 6A—5.056(2), (3), (4), and (5), and rule 6A—10.081(2)(a). In violating these rules, Respondent violated Policy 4008, subsections (B)1. and 8. However, the evidence does not establish that Respondent violated Policy 4008B, subsection 3., as charged in the Administrative Complaint. This policy imposes on instructional personnel the duty to "Infuse in the classroom, the District's adopted Character Education Traits of Respect, Honesty, Kindness, Self—control, Tolerance, Cooperation, Responsibility and Citizenship." While Respondent's conduct in reporting to school under the influence of controlled substances on May 18, 2018, may not have constituted self—control or respect for his duties as a teacher on that specific day, no evidence was presented regarding Respondent's behavior in the classroom—— whether on that day or on any other day. To the contrary, as discussed above, the evidence established that Respondent is a caring and effective teacher in dealing with his students. Accordingly, it is determined that Respondent did not violate Policy 4008, subsection B.3. The evidence establishes that Respondent violated Policy 4008(C), which requires instructional personnel to be on duty for a minimum of 7.5 hours on an instructional day. However, the evidence does not establish that Respondent violated the provision in Policy 4008, "Miscellaneous" section, which states that "all members of the instructional staff shall be expected to teach a full schedule of classes, unless prior approval from the area superintendent or superintendent is obtained." Policy 4008 establishes the overarching responsibilities and duties of Principals and instructional personnel in the context of performing their employment contracts. In this context, the "full schedule of classes" provision refers to a teacher's instructional schedule assignment for the school year rather than a specific per—hour requirement. In fact, to read this provision as urged in the Administrative Complaint would render it redundant to the statement (also in the "Miscellaneous" section) that "instructional personnel must be on duty a minimum of seven and one—half hours (7 1/2) hours daily. The Administrative Complaint also charges Respondent with having violated the District's progressive discipline policy, Policy 4.9. As more fully discussed below, it is found that Respondent that did not violate this policy. Based on the foregoing, it is found, as an ultimate fact, that although Respondent violated the rule and many of the school board policies charged in the Administrative Complaint, under the progressive discipline policy set forth in Policy 4.9, the appropriate penalty that should be imposed on Respondent in this case is suspension without pay for the entire period during which he has been reassigned from the classroom. Additionally, Respondent should be required to submit to random drug and alcohol testing, at his personal expense, as a condition of his continued employment by Petitioner.5/ This penalty is appropriate based on the fact that Respondent has not previously been subject to suspension without pay under the progressive discipline policy, and takes into account several relevant considerations: specifically, that Respondent has a substance abuse problem for which he actively sought——and finally has been able to obtain——real, effective help in overcoming; that he has an approximately 14—year employment history with Petitioner that only, in the last two years, entailed discipline as the result of conduct that was caused by his substance abuse problem; that he is remorseful, understands that he made poor choices, and has obtained the counseling and therapy he needs in order to correct his performance problems through overcoming his substance abuse problem; that he is a caring and effective teacher who loves children and enjoys his teaching job; and, importantly, that no students were injured or otherwise harmed by Respondent's conduct on May 18, 2018. This penalty also is sufficiently severe to deter Respondent from committing future violations of rules and school board policies, and sends the message that this is truly his last chance.
Conclusions For Petitioner: Douglas G. Griffin, Esquire Broward County School Board Office of the General Counsel 600 Southeast Third Avenue, 11th Floor Fort Lauderdale, Florida 33301 For Respondent: Robert F. McKee, Esquire Robert F. McKee, P.A. 1718 East Seventh Avenue, Suite 301 Tampa, Florida 33605
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 suspending Respondent from his teaching position without pay commencing on the date on which he was reassigned from the classroom; reinstating Respondent to his teaching position; and requiring Respondent to submit to random drug and alcohol testing, at his personal expense, as a condition of his continued employment. DONE AND ENTERED this 17th day of July, 2019, 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 17th day of July, 2018.
Findings Of Fact Petitioner is a duly constituted School Board responsible for the control and supervision of all free public schools within the school district of Dade County, Florida. Petitioner is a public employer and a political subdivision of the State of Florida. Respondent was employed by the Petitioner in a permanent full-time position as an Electrician II, which is a journeyman electrician position, from December 6, 1983, when he was hired under the name of Guarino Delgado Guanche, III, until the School Board voted to terminate his employment on March 22, 1995. Respondent was an "educational support employee" as that term is defined by Section 231.3605(1), Florida Statutes. 1/ Respondent is a member of the Dade County School Maintenance Employee Committee (DCSMEC) bargaining unit. Although he is not a member of that union, the terms and conditions of his employment are set forth in the collective bargaining agreement between the DCSMEC and the Petitioner and by pertinent rules and policies adopted by the School Board. The collective bargaining agreement does not have a negotiated discipline code with an itemized list of disciplinary offenses or range of penalties and it does not require that Petitioner administer progressive discipline as to employees covered by the agreement. Article IV of that agreement reserves unto the School Board the right to discipline, suspend, or terminate the employment of any employee for "just and good cause." The Petitioner has not promulgated disciplinary rules or standards for educational support employees. There are no published rules, policies, procedures, or guidelines which put educational support employees on notice of the standard of conduct expected of them or the range of penalties that they may suffer for infractions. Decisions concerning the level of discipline to be imposed against educational support employees are made by administrators on a case-by-case basis. Rule 6Gx13-4A-1.21 adopted by Petitioner pertains to conduct of all permanent employees, and provides in pertinent part as follows: Employee Conduct All persons employed by The School Board of Dade County, Florida are representatives of the Dade County Public Schools. As such, they are expected to conduct themselves in a manner that will reflect credit upon them- selves and the school system. The Petitioner has no published rules, policies, procedures, criteria, or guidelines concerning allegations of misconduct by educational support employees and how those allegations are investigated. There was insufficient evidence to establish that any investigation pertinent to this proceeding was inappropriate or deprived Respondent of due process. From September 1993 until the School Board's action of March 22, 1995, Respondent was also employed by Petitioner as a part-time instructor at William Turner Technical School (Turner Tech), a public school in Dade County. The School Board's action of March 22, 1995, included the termination of Respondent's employment at Turner Tech. There was no evidence that Respondent had entered into a written contract with Petitioner pertaining to his employment at Turner Tech, and there was no evidence concerning the terms and conditions of this employment. One does not have to already be a School Board employee to obtain part- time employment as an instructor at Turner Tech. A full-time employee of the School Board can seek and hold part-time employment at Turner Tech, and one type of employment is not dependent on the other. Prior to his employment at Turner Tech, Respondent underwent a review by the Petitioner's Office of Professional Standards and received authorization by that office to be hired. There was sufficient enrollment in Respondent's class to sustain the class being taught. Consequently, Respondent had a reasonable expectation of retaining his part-time employment at Turner Tech. The School Board required good cause to terminate that employment. It is the Petitioner's practice to dismiss an employee from all positions of employment with Petitioner if there exists just cause to dismiss the employee from his primary position of employment. That policy has not been adopted by a rule, but is rational. The recommendation of the Superintendent of Schools to the School Board was based on events that occurred July 6, 1994. The School Board based its action of March 22, 1995, on the Superintendent's recommendation. This recommendation included the suspension of Respondent's total employment without pay pending termination proceedings on the grounds of conduct unbecoming a School Board employee or insubordination. 2/ By its "Notice of Specific Charges" filed in this de novo proceeding, Petitioner notified Respondent that it was asserting additional incidents of alleged misconduct in support of its action. This notice timely advised Respondent as to these additional charges of misconduct. Conferences for the record (CFRs) are used by the Board as a fact- finding forum that often lead to discipline, but CFRs are not a form of discipline. While Respondent was the subject of several CFRs during his employment with the School Board, his only prior discipline consisted of a reprimand in 1984 for attendance problems and a reprimand in 1993 for violation of break time rules. Disciplinary measures that can be imposed against an employee without action of the School Board are oral counseling, written reprimands, and involuntary transfers. Suspensions or dismissals require School Board action. THE INCIDENT OF JULY 6, 1994 At the times pertinent to the incident of July 6, 1994, Respondent was working on an electrical installation project at Treasure Island Elementary School. His foreperson was Jeff Price. Respondent and Mr. Price were close personal friends. Respondent's assignment, pertinent to this proceeding, was to install three electrical conduits (referred to as raceways) pursuant to a sketch that had been provided by an electrical engineer in the Mechanical Section. Respondent encountered difficulties with a concrete beam, which impeded the installation of the three raceways as designed by the electrical engineer. Respondent determined that the installation of two raceways would suffice and would meet code. Respondent showed Mr. Price calculations purporting to justify the installation of only two raceways. Respondent thereafter installed only two raceways. Reducing the number of raceways constituted a major change in the planned work. Respondent thought that Mr. Price knew that he was only installing two raceways and he thought that Mr. Price had approved that change. Although a foreperson has the authority to authorize major field changes, the evidence failed to establish that Mr. Price authorized the changes or that he knew that Respondent was only installing two raceways. Although the installation of the two raceways by Respondent passed inspection, it was subsequently necessary for Petitioner to correct Respondent's work. 3/ Ray Singler, a Coordinator I in Petitioner's Mechanical Section, was responsible for overseeing the electrical project at Treasure Island Elementary School. In a subsequent inspection, Mr. Singler discovered that only two raceways had been installed. He discussed this modification with Mr. Price, who told Mr. Singler that he was unaware of the change. Mr. Singler suspected that Respondent had intentionally failed to follow the original plans and had been insubordinate. To learn why Respondent had made this change, Mr. Singler scheduled a conference for the record (CFR) with Respondent for the last hour of Respondent's workday on July 5, 1994. This CFR could have resulted in Respondent being disciplined since Respondent had no authority to reduce the number of raceways. Mr. Price attended the CFR and responded to questions asked by Mr. Singler in a yes or no fashion. Mr. Price did not volunteer any information, and indicated that he did not know why Respondent had installed only two raceways. Mr. Price did not tell Mr. Singler that he and Respondent had had conversations about the modification. Respondent testified that because of their friendship, he was "shocked" to see Mr. Price at the CFR since Mr. Price had not told him that he would be at the CFR. Respondent also testified that he was upset and confused by what he considered Mr. Price's failure to be totally forthcoming. On July 6, 1994, Mr. Price's work crew was assigned to Meadowland Elementary School. They were using a classroom as an office, storage area, and breakroom. On that morning, Mr. Price gave his crew their assignments and then walked around to observe their various jobs. Respondent was not at his assigned work site. When Mr. Price returned to the classroom they were using, Respondent was in the room waiting for him. Respondent was seated at a table holding a mug of coffee he had brought from his home. Following a brief conversation as to the CFR that occurred the day before, Mr. Price told Respondent to return to work. Respondent then threw the mug of cold coffee on Mr. Price, hitting his face and shirt. 4/ There is no evidence that anyone, including other employees, saw or overheard the incident. Following a brief, nonviolent conversation, Mr. Price left the room and asked his supervisor, Kenneth MacFarlane, for permission to go home to change his clothes. Mr. MacFarlane authorized Mr. Price to go home and recommended to him that he call the school police. Mr. Price testified that he waited two days to call the school police because he expected Respondent to apologize for the incident. After Respondent failed to apologize, Mr. Price called the school police, who treated the incident as a "battery". Mr. Price signed a form by which he agreed not to bring criminal charges against Respondent. Thereafter, Respondent was transferred to another work crew where he worked until his employment was suspended by the School Board pending termination proceedings. THE INCIDENT OF JUNE 8, 1992 Health Examinetics is an outside firm that Petitioner hired pursuant to its health care cafeteria plan for employees to receive health examinations on school sites. On June 8, 1992, Kevin McCarthy, an administrator, visited a Health Examinetics' trailer that had been set up on school grounds. This visit had been approved by Mr. McCarthy's supervisor. On June 8, 1992, Respondent submitted to Max Metzger, an administrator above Mr. McCarthy, a hand written complaint that Mr. McCarthy was using work time for his health examination. This memo reflected that Respondent, during hours that he should have been working, kept Mr. McCarthy's activities under surveillance. Respondent reported that he saw Mr. McCarthy enter the health examination area and that Mr. McCarthy did not exit that area until over an hour later. Respondent obtained a copy of the sign-in sheet that reflected Mr. McCarthy's signature. Respondent's observation of Mr. McCarthy and his copying of the sign-in sheet were unauthorized acts and constituted a misuse of Respondent's work time. This incident was included in the Notice of Specific Charges, but information as to this incident was not provided the School Board for its meeting of March 22, 1995. THE INCIDENT OF DECEMBER 21, 1994 While the Office of Facilities Operation was reviewing Respondent's status, an incident occurred that Petitioner asserts supports its decision to terminate Respondent's employment. This incident was also included in the Notice of Specific Charges. Information as to this incident was not provided the School Board for its meeting of March 22, 1995. On December 20, 1994, Respondent was advised that his classroom at Turner Tech was going to be used the next day by Scott Ellinport, an alarm trade supervisor employed by the Petitioner. Mr. Ellinport's office had developed a test designed to determine whether a candidate for employment as an alarm worker has the requisite skills to perform the work. Electricians frequently apply for employment as alarm workers. Mr. Ellinport had hired several alarm contractors to take a practice test to ensure the integrity of the test. The practice test was to be administered on December 21, 1994, in the classroom Respondent used to teach his night class at Turner Tech. This classroom had two doors on the exterior wall. One door was a conventional door and the other was a large, roll-up door. On December 21, 1994, Respondent was assigned to work at Miami Edison Senior High School under the supervision of Tracy Scott, a lead electrician and acting foreperson. On his way to work, Respondent's vehicle broke down during a rain storm. Because of his proximity to Turner Tech, Respondent had his vehicle towed to that location. At Turner Tech, Respondent talked to Patrick O'Brien, an instructor who was the supervisor for his part-time employment. Mr. O'Brien gave Respondent a cup of coffee and let him use his telephone. Respondent also talked to a janitor who worked at Turner Tech. Respondent was not authorized by Mr. O'Brien or by any other person in a position of authority to enter the classroom while Mr. Ellinport was using the room. Respondent entered the classroom at a time he knew the room was being used by Mr. Ellinport for this practice test. When he entered the classroom at approximately 8:50 a.m., Mr. Ellinport was briefing the people who were to take the alarm worker test and the wiring and other materials that were to be used during the test were displayed on a table. Respondent entered the classroom and walked all the way across the classroom to the exterior wall. He opened the conventional door and began to open the roll-up door when Mr. Ellinport stopped him. Respondent stopped what he was doing and immediately left the classroom when asked to do so by Mr. Ellinport. 5/ Respondent was in the classroom approximately four minutes. Respondent disrupted the administration of the test by Mr. Ellinport. Mr. Ellinport testified, credibly, that Respondent's presence in the classroom also compromised the integrity of the alarm worker examination because Respondent was able to observe the wiring scheme that was being tested. This information would benefit a person in his preparation for the examination. Respondent's workday for December 21, 1994, was scheduled to begin at 7:00 a.m. After his vehicle broke down, Respondent beeped Tracy Scott, the lead electrician with whom he was working that day to advise that he would arrive at work as soon as he could. Respondent thereafter arrived at his work site and worked part of the day. Respondent did not work a full eight hour shift on December 21, 1994. At the end of the workday on December 21, 1994, Mr. Scott filled out a form entitled "Daily Status Report" that reflected that he and Respondent had worked a full eight hour shift that day. This Daily Status Report does not reflect that Respondent spent part of his work day at Turner Tech due to car problems. Respondent signed this form that reflected this incorrect information. After Respondent returned to work from the Christmas break, he completed and signed a time card that incorrectly reflected that he worked eight hours on December 21, 1994. During the course of his employment, Respondent has filed grievances and memoranda about such subjects as health and safety issues, inequitable treatment, inefficiency, and abusive behavior by supervisors. Some of these grievances had been taken to outside agencies such as the Equal Employment Opportunity Commission and the Public Employee Relations Commission. Some of the grievances and memoranda concerned supervisors and administrators such as Max Metzger, Eddie Pryor, Ray Singler, Mike Brush, and Vernon Holloway. Prior to the School Board action of March 22, 1995, the recommendation to terminate Respondent's employment was made by Peter Vadas and ratified by Dr. Patrick Gray. There was insufficient evidence to establish Respondent's contention that either of these two administrators considered Respondent a "troublemaker" (the term used by Respondent) or that the decision to terminate his employment was "retaliatory". The greater weight of the evidence established that both of these administrators based their recommendations solely on what they perceived to be misconduct by Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of facts and conclusions of law contained herein. It is further recommended that the final order terminate Respondent's full-time and part-time employment with the Petitioner. DONE AND ENTERED this 14th day of August, 1996, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of August, 1996.
The Issue The issue in this case is whether just cause exists to terminate Respondent, Charles Staub's (Staub) employment with Petitioner, Lee County School Board (the "Board"), based on violations of Florida Administrative Code Rule 6B-4.009 (3) and (4), for failing to perform duties appropriately, repeated failures to obey direct orders, or misconduct in office.
Findings Of Fact The Board is duly constituted to operate, control, and supervise all free public schools within the school district of Lee County, Florida, pursuant to Article IX, section 4(b) of the Florida Constitution and section 1012.23, Florida Statutes.2/ At all times pertinent hereto, Staub was an employee in the school district. The school district has a collective bargaining agreement (the “Agreement”), but Staub is not a paying member of the union covered by the Agreement. Rather, Staub is the member of a professional union having no involvement with the Board. Staub is, however, an “employee” within the collective bargaining unit covered by the Agreement. Staub has been a plumber for over 20 years, receiving his journeyman status around 1980. He worked as a plumber for many years before taking a job with the City of Cape Coral in the wastewater treatment department. He left that position when hired by the Board as a plumber for the school district in 2003. During his employment with the Board, Staub was one of several plumbers in the maintenance department. At the time of the issues relevant to this case, there were six or seven other plumbers in the department. They were supervised by Purvis, who was in turn supervised by Snell. When Purvis was absent, his duties were handled by Cash. It was the duty of the supervisors to give the plumbers job assignments each day. The supervisors were also responsible for prioritizing the job assignments so that the most important assignments were completed first. Each day, the plumbers would gather at the district office for the purpose of receiving their assignments, transferring any needed tools into a district vehicle, and going from school to school to complete their assigned tasks. For most of his career with the Board, Staub exhibited good work habits and did well. That began to change in recent years. Beginning in 2010, Staub began to receive warnings and reprimands concerning his work and his interaction with other employees. Those shortcomings form the basis for the Board’s decision to seek termination of Staub’s employment. The Board has alleged three areas of concern which it feels identify Staub’s shortcomings and failures as an employee of the school district. Facts addressing each of those areas of concern are set forth below. Failure to perform duties as expected On March 22, 2010, Staub replaced a leaking hot water heater at Lehigh High School (“Lehigh”). The existing hot water heater had been on a shelf attached to the wall with brackets. Staub replaced the hot water heater with a new, five gallon heater. However, upon removing the old heater Staub noticed that the shelf brackets were of an inferior quality and were not sufficient to hold the new heater safely on the shelf. Upon completing the installation of the new heater, Staub placed the heater on concrete blocks on the floor rather than placing it on the wall shelf with the inferior brackets. Staub then contacted the Board’s welders to order new brackets which would be “up to code” and would more properly hold the shelf in place. While the brackets were on order, Staub believed the heater could sit on the concrete blocks safely. He did fail, however, to properly install a drain pan for the new heater. He also did not have the pressure relief line properly affixed so as to prevent possible damage if the new heater should leak. Staub also admits to failing to remove a rubber glove he had placed over the smoke detector while he was working on the heater. The building manager at Lehigh complained to Purvis about the work Staub had done on the new heater. Purvis looked at the situation and gave Staub a verbal warning about the quality of his work on the hot water heater. The warning was then reduced to writing, including directions for Staub to return to Lehigh and correct his work. Staub complied with the written directive, correcting all of his work on the job within a couple of weeks. Staub maintains that his work was completely satisfactory. The testimony of Purvis was more persuasive concerning this incident. Insubordination by failing to follow orders of superiors On or about March 28, 2012, Staub and Cash were working on a job at Cypress High School (“Cypress”). A bathroom had flooded and a substantial amount of plumbing work was required to correct the situation. Staub and Cash capped off the water coming into the bathroom in order to prevent further flooding. Then they began the process of making necessary repairs to the walls and floor, including filling holes with concrete. They then began installing new fixtures to replace the ones that had been leaking. At some point during the day, Staub left Cypress to go to a local Home Depot store to buy some supplies needed for the job. While he was gone, Cash –- who was acting as supervisor that day due to the absence of Purvis –- received a call from the building manager at Orangewood Elementary School (“Orangewood”) about a leaking toilet in a special education classroom. The toilet needed to be repaired as soon as possible. Cash called Staub at 11:45 a.m. and told him to go by Orangewood to make the repair before the end of the work day (3:30 p.m.). Staub replied that he would take care of the toilet as directed. When Staub finished purchasing the supplies he needed at Home Depot, he went directly back to Cypress rather than go to Orangewood. Cash had already left Cypress by that time. It was Staub’s intention to “tend” some concrete which was drying in order to continue work on the repairs and the fixture installation. Staub unilaterally decided that the work at Cypress had a higher priority than repairing the toilet at Orangewood. He worked at Cypress until the end of his work day, then returned to the office for end-of-day debriefings. When Staub told Cash he had not gone to Orangewood, Cash was “not happy” with Staub. Cash took the Orangewood work order form, wrote “#1 3/29/12” on it, and gave it back to Staub. The #1 was an indication that the work was to be Staub’s first priority the next day. Staub did as he was instructed, completing the toilet repair on the morning of the 29th. On or about December 6, 2011, at the beginning of the work day, Purvis called the plumbers together for a meeting. After handing out assignments for the day, Purvis told the employees to meet behind the office to help unload materials from a van. He instructed the men not to go to their cars to get tools and equipment prior to unloading the van. All of the plumbers except Staub went immediately to the van to unload it as directed. Staub, however, first went to his car to get his tools for the work day. When Staub didn’t show up at the van with the others, Purvis called Staub on his work cell phone. After three to five calls, Staub finally answered. Purvis asked Staub where he was and Staub said he was at his van. In response, Purvis simply shrugged his shoulders in disgust because he had become tired of Staub’s behavior. When Staub came back to the office area, Purvis called him aside and told him to get on with his work assignments, rather than helping to unload the van. Staub does not remember hearing Purvis say to go to the van prior to getting tools from their cars, but all the other plumbers apparently did. Staub’s testimony in that regard is not credible. Failing to dedicate himself to high ethical standards On or about February 2, 2011, Staub went to Gateway Elementary School for an assigned project. While there, Staub discussed the use of iodine with some of the kitchen staff, pointing out the existence of acids in the iodine. Based upon whatever Staub told the kitchen staff, a complaint was made about Staub to his supervisors. The complaint included allegations that Staub had a poor attitude, provided poor customer service, and did not respond timely. However, there is no credible, non-hearsay evidence in the record to substantiate those allegations. Staub said the kitchen staff specifically asked him about the iodine, and he simply pointed them to the ingredients on the bottle. That explanation lacks credibility in light of the complaints made by staff. However, there is not sufficient evidence in the record to establish what actually occurred. At around the same time, Staub went to Sunshine Elementary to complete an assigned job. While there, he spoke with the kitchen manager concerning a disagreement about a prior work order. The kitchen manager made a complaint to Staub’s supervisors, claiming that Staub treated her rudely. Staub was given a written warning, based on the allegations made by the kitchen manager. Staub said that there was no argument between he and the kitchen manager; they simply discussed a prior work order. There was no testimony from the kitchen worker, so it is impossible to verify what occurred. Again, the absence of direct, non-hearsay testimony precludes a finding that Staub acted in the fashion alleged by the Board. However, in light of the fact that a complaint was filed by the kitchen manager, it is more likely than not that there was some disagreement between her and Staub. On July 19, 2011, at the end of the work day, Staub was sitting in the conference room at the maintenance office along with other maintenance workers. Staub and an employee named Christiansen, a carpenter, began arguing about something. Christiansen was upset with Staub and said something to him about the matter. The men argued briefly and Christiansen began to walk away. As he did, Staub called Christiansen a vulgar name. Christiansen then left the office, followed by all the other employees –- including Staub –- as they went to their private cars to go home. When Christiansen left the parking lot in his car, Staub was close behind him. Christiansen and Staub were both traveling in the same direction, Christiansen, as he headed home; and Staub, as he ostensibly went to a meeting at Shadow Pines Air Park (Shadow Pines). It is alleged that Christiansen was frightened and felt he was being harassed by Staub, but Christiansen did not testify, and there was no non-hearsay evidence presented to verify that allegation. Staub’s written statement made in close temporal proximity to the events mentions the meeting at Shadow Pines, thus giving some credibility to his testimony. Two unsworn, written statements by witnesses –- though insufficient evidence by themselves on which to base a finding of fact –- support Staub’s contention that he remained fairly calm during the argument, up to the point where he called Christiansen a name. An eyewitness to the event, Purvis, remembers Staub yelling the vulgar name at Christiansen. Two employees apparently talked with Christiansen on his cell phone while Staub was tailgating him, but no competent, non-hearsay evidence was offered to prove that fact. There is competent evidence that Staub and Christiansen argued and that Staub drove behind Christiansen as they left work on that day. Further, it is clear Staub called Christiansen a vulgar name. The remainder of the incident was not sufficiently proven by admissible evidence. On September 23, 2011, Staub went to Gulf Middle School (“Gulf Middle”). His daily labor sheet does not include Gulf Middle as a place he worked that day. However, he did go to the high school (“Gulf High School”) which is adjacent to Gulf Middle. Staub walked over to Gulf Middle for the purpose of getting a work ticket signed from a previous day’s job. While at the school, he decided to eat lunch at the school cafeteria. It is a common practice among maintenance workers to eat at the cafeteria of schools where they are working. The building superintendent’s office was in the cafeteria area. The superintendent was not at his office when Staub arrived, so Staub waited on the stage area of the cafeteria for his return. There was a photographer setting up on the stage preparing to take pictures of students and staff. While Staub was there, no one was getting their picture taken. Staub was asked by the teacher supervising the photographer if he would want to pay ten dollars to get his picture made as part of a school fundraiser. Staub at first declined, but then agreed to help the school out by having his picture taken. Later, when the pictures were returned to the school by the photographer, Staub’s picture was included. Because he was an adult, his picture had been placed on an identification badge rather than returning simply as a photograph. The identification badge indicated that Staub was “Faculty” at Gulf Middle. At the time his picture had been taken, Staub was wearing his work uniform which clearly identified him as a Lee County School District employee. He was also wearing his employee badge. Upon receipt of the picture, Purvis turned it over to his supervisor, Snell, because he believed it was inappropriate for Staub to have a Gulf Middle identification card. Snell and Purvis were concerned that something inappropriate was going on vis-à-vis the identification card. Despite their concern, it appears the issue of the picture qua faculty badge was completely innocent. Another allegation against Staub by his supervisors was that Staub frequently failed to sign in when he visited schools to perform his work tasks. When signing in, Staub would sign as “C. Plumber” rather than by his real name. No competent evidence, i.e., school sign-in sheets, was offered into evidence to support the allegation, however. Staub denies the allegation. Staub’s Employment History In 2004 and 2005, Staub’s annual performance evaluations showed him to be “Effective” in all categories of performance. His supervisor wrote “Good man” at the end of those two evaluations. From 2007 until 2009, Staub began to receive less satisfactory evaluations, with many areas of performance marked as “Inconsistently practiced.” In the area of “interpersonal skills” on the evaluation form, Staub received several less than satisfactory scores. Then, in 2010, the evaluation indicated that all areas were again in the Effective category. The 2011 evaluation, however, was a different story. Staub received “Unacceptable level of performance” scores on two benchmarks in the interpersonal skills area. Three of the skills in that portion of the evaluation form were marked as “inconsistently practiced.” The evaluation form contained an addendum outlining three written sanctions that had been issued to Staub: 1) A formal verbal warning for unsatisfactory work; 2) A written warning related to the customer complaint at Sunshine; and 3) A written warning regarding the incident at Gateway. The supervisor said that, “While [Staub] meets the standard for the skills required to be a plumber, he is below standard regarding customer service.” Staub received a verbal warning (April 13, 2010), and four written warnings (two on February 14, one each on October 26, and December 6, 2011). His personnel file also contains several reports of improper work, unacceptable behavior, and conflicts with other employees. The Board properly followed its protocol for progressive discipline concerning the actions it took against Staub. Other than the formal incidents set forth above, there is an underlying tone of coolness between Staub and the witnesses who testified. It does not appear that Staub gets along well with his fellow employees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Lee County School Board, reversing its decision to terminate the employment of Respondent, Charles Staub for the reasons set forth above. DONE AND ENTERED this 11th day of December, 2012, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 11th day of December, 2012.
The Issue The issue in this case is whether a district school board is entitled to terminate a teacher's employment for just cause based upon the allegation that he picked up an administrator and dropped her to the floor.
Findings Of Fact Introduction The Miami-Dade County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. Respondent Michael De Palo ("De Palo") is a teacher. He was employed in the Miami-Dade County Public School System from September 1999 until September 10, 2003, on which date the School Board suspended him without pay pending termination. At all times relevant to this case, De Palo was assigned to Miami Norland Senior High School ("Norland"), where he taught social studies. The School Board's preliminary decision to dismiss De Palo was based on an incident that occurred at Norland on January 23, 2003. De Palo is alleged to have committed at least a technical battery that day upon the person of Gladys Hudson, an Assistant Principal, in the presence of Benjamin Cowins, a school counselor. These three are the only individuals who have personal knowledge of the January 23, 2003, incident. De Palo, Ms. Hudson, and Mr. Cowins testified in person at the final hearing. Also, proof of some prior statements about the incident was introduced into evidence. The most reliable such proof, in terms of establishing what was actually said, consists of the signed, written statements of Ms. Hudson and Mr. Cowins, dated February 3, 2003, and January 27, 2003, respectively, as these documents contain the witness' own words. Ms. Hudson and Mr. Cowins also gave verbal accounts to Detective Hadley, the school police officer who investigated the incident. Detective Hadley recorded their statements in his March 5, 2003, Preliminary Personnel Investigation Report, which is in evidence. De Palo, too, made a brief oral statement about the matter to Detective Hadley, which statement is recounted in the investigative report. De Palo also gave an oral statement at a conference-for-the-record held on May 14, 2003, and this statement is set forth in a Summary of Conference-for-the-Record dated May 19, 2003, which is in evidence. The aforementioned writings memorializing the several witness' prior oral statements, having been prepared by (and thus filtered through) someone other than the witness himself or herself, do not necessarily capture the witness' actual words and therefore have been accorded relatively little weight, as compared with the testimony given under oath at hearing. Ms. Hudson and Mr. Cowins are largely in agreement as to what happened on January 23, 2003. Their version of the incident, however, conflicts irreconcilably with De Palo's on crucial points. After carefully reviewing the entire record and reflecting upon the respective impressions that each of the participant-eyewitnesses made on the undersigned at hearing, the fact-finder has determined that De Palo's testimony, for the most part, is more credible than that of Hudson/Cowins. To the extent any finding of material fact herein is inconsistent with the testimony of one witness or another, the finding reflects a rejection of all such inconsistent testimony in favor of evidence that the undersigned deemed to be more believable and hence entitled to greater weight. Material Historical Facts On the morning of January 23, 2003, Ms. Hudson and Mr. Cowins were standing and talking in the hallway outside the door to Mr. Cowins' office. De Palo approached the pair as he walked through the hallway on his way to the copy machine. The hallway where this encounter took place is narrow and does not afford sufficient space for three adults to pass by each other with ease. Consequently, Ms. Hudson, whose feet hurt almost every day due to preexisting conditions, requested that De Palo please take care not to step on her feet when he passed.2 This plea for caution was not given because De Palo had stepped on Ms. Hudson's feet in the past, or because De Palo was approaching in a manner that threatened to injure her feet, but rather because the passage was so narrow. (Ms. Hudson would have said the same thing to any colleague who happened down the hallway at that particular time.) In response to Ms. Hudson's entreaty, De Palo remarked that he would "sweep her off her feet" and help Ms. Hudson back to her office. De Palo, who was in good spirits at the time, made these comments in a lighthearted, even jovial manner. His demeanor was good-natured——not hostile, threatening, or menacing. De Palo proceeded to pick Ms. Hudson up. At this point, it is relevant to note that De Palo is a retired firefighter and paramedic who had returned to teaching after a 28-year career with the fire department. From his work experience, De Palo was familiar with body mechanics, and he knew how to lift and transport someone without injuring himself or the person being carried. To lift Ms. Hudson, De Palo placed one hand and arm on her back at around shoulder level, and another hand and arm under her legs, at the knees. Once he had her off the ground, De Palo held Ms. Hudson close to his body, more-or-less at his waist level, in a semi-reclining position, her head somewhat higher than her legs. (To envisage the way he held her, imagine the iconic picture of the groom carrying his bride across the threshold.3) Ms. Hudson is relatively small woman——she weighed approximately 110 pounds at the time of the incident——but nevertheless De Palo likely could not have lifted her as he did, the undersigned reasonably infers, without her cooperation or acquiescence. This is because, in order to pick her up, De Palo needed to set his own feet and arms, during which maneuvering—— which would have revealed his intentions——Ms. Hudson easily could have moved out of position (e.g. by stepping forward), had she objected to being lifted.4 There is no persuasive evidence, and thus it is not found, that De Palo grabbed Ms. Hudson and forcibly wrestled her into his arms to be lifted.5 Ms. Hudson did not protest or object when De Palo picked her up. Indeed, the persuasive evidence establishes that she said nothing at all. The undersigned finds that had she been physically or verbally resistant (which she was not), De Palo would have refrained from lifting Ms. Hudson off her feet. It is found as well that De Palo had no intent to harm Ms. Hudson in any way, including through the infliction of emotional distress. Rather, De Palo, the former fireman, believed that he was doing a good deed, in a playful manner. With Ms. Hudson in his arms, De Palo walked a short distance (15 feet or so) to her office, which is around a corner, and hence cannot be seen, from Mr. Cowins' office. Mr. Cowins did not follow along. The door to Ms. Hudson's office was open, and De Palo carried her into the room, where he set her down on her feet. De Palo did not drop Ms. Hudson onto the floor, nor did she fall down, and any evidence suggesting otherwise is explicitly rejected. De Palo bade Ms. Hudson a good day and left. The entire episode had lasted no more than 30 seconds. The next day, Ms. Hudson summoned De Palo to her office and told him that his lifting and carrying her had been inappropriate. De Palo agreed and apologized. At some point after January 23, 2003, Ms. Hudson filed a workers' compensation claim relating to the incident, during which, she maintained, her back had been hurt. Ms. Hudson remained off duty for about one month. While these particular facts are not disputed, the evidence in the record does not persuade the undersigned that Ms. Hudson was injured as a result of De Palo's actions on January 23, 2003.6 Ultimate Factual Determinations De Palo's conduct on January 23, 2003, did not entail threats, threatening behavior, or acts of violence. Therefore, De Palo did not violate School Board Rule 6Gx13-4-1.08, which proscribes violence in the workplace. De Palo's conduct on January 23, 2003, constituted horseplay. His spur-of-the-moment behavior, like most on-the- job tomfoolery, while foolish and inappropriate in hindsight, and certainly neither authorized nor praiseworthy, was nevertheless relatively harmless in the grand scheme. De Palo's actions for a half-minute that day were plainly out of place and unprofessional, but his conduct was not "unseemly"——an adjective that, as ordinarily used, denotes something offensive to good taste. Moreover, De Palo did not use abusive or profane language in the presence of Ms. Hudson and Mr. Cowins. Therefore, it is determined that De Palo did not violate School Board Rule 6Gx13-4A-1.21, which prohibits unseemly conduct and abusive or profane language. The School Board has not identified, and the undersigned has not located, a specific principle in Florida Administrative Code Rule 6B-1.006 (prescribing the Principles of Professional Conduct for the Education Profession in Florida) that clearly proscribes the conduct in which De Palo engaged on January 23, 2003. Accordingly, it is determined that De Palo is not guilty of misconduct in office, an offense defined in Florida Administrative Code Rule 6B-4.009(3). Finally, it is determined that De Palo's conduct was not so serious as to impair his effectiveness in the school system.
Conclusions The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes. In an administrative proceeding to dismiss a teacher, the school board, as the charging party, bears the burden of proving, by a preponderance of the evidence, each element of the charged offense(s). See McNeill v. Pinellas County School Bd., 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Sublett v. Sumter County School Bd., 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995). De Palo's guilt or innocence is a question of ultimate fact to be decided in the context of each alleged violation. McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995). II. In its Notice of Specific Charges served October 13, 2003, the School Board advanced three theories for De Palo's removal: Violence in the Workplace (Count I); Conduct Unbecoming a School Board Employee (Count II); and Misconduct in Office (Count III). Counts I and II are grounded in School Board Rules, namely School Board Rule 6Gx13-4-1.08 and School Board Rule 6Gx13-4A-1.21. These Rules, like all rules applicable to only one school district, are not published in the Florida Administrative Code. See § 120.55(1)(a)2., Fla. Stat. The School Board neither introduced copies of its Rules into evidence nor asked that official recognition be taken of them. Thus, although the undersigned thinks he knows the contents of these Rules, based on experience and access to DOAH's Recommended Orders, he does not have before him, in this record, the complete text of either Rule as offered during the hearing, where the accused party would have had opportunities to inspect and object to the admission or official recognition thereof. Though unlikely to be applauded on appeal, it is possibly within the undersigned's discretion to initiate the process, on his own motion, for taking official recognition of, or reopening the record to receive in evidence, the pertinent School Board Rules. See Collier Medical Center, Inc. v. State Dept. of Health and Rehabilitative Services, 462 So. 2d 83, 86 (Fla. 1st DCA 1985)(Allowing "a party to produce additional evidence after the conclusion of an administrative hearing below would set in motion a never-ending process of confrontation and cross-examination, rebuttal and surrebuttal evidence, a result not contemplated by the Administrative Procedures [sic] Act."). Such a process would entail (a) requesting copies of the Rules and (b) affording each party an opportunity to present information relevant to the propriety of supplementing the record in this manner. Cf. § 90.204, Fla. Stat. (setting forth the procedure for sua sponte taking judicial notice of a fact). The undersigned is disinclined to do this, however, believing it reasonable to insist that the School Board produce at hearing, without prompting, a complete copy of any unpublished rule upon which it relies——or suffer the consequence of failure. The ordinary consequence of failing properly to introduce a pertinent rule would be, of course, a determination that the School Board had failed to prove a violation of the rule——and that is what would happen here. The undersigned cannot ultimately determine that De Palo violated either School Board Rule 6Gx13-4-1.08 or School Board Rule 6Gx13-4A-1.21, regardless of what the other evidence might establish, unless he can examine the Rules in question. Thus, the undersigned's refusal to initiate a process for receiving these Rules into the record necessarily would be outcome determinative as to Counts I and II. It so happens in this case, however, that when the undersigned applies what he thinks the Rules in question provide to the historical facts as found above, ultimate determinations of innocence result. Thus, in this case, receiving the Rules would not change the outcome, assuming the Rules say what the undersigned believes they say. The question of whether to receive the Rules sua sponte will therefore be sidestepped. For the purposes of this Recommend Order, it will simply be assumed, for the sake of reaching the merits, that the Rules are properly before the undersigned.7 III. In this section, the three charged offenses will be examined one-by-one, putting aside momentarily the element of "resulting ineffectiveness," which, being common to all counts, will be addressed separately in the next section. For organizational convenience, the counts will be taken up in reverse order, starting with Count III. Misconduct in Office The School Board is authorized to terminate the employment of a teacher such as De Palo "only for just cause." See § 1012.33 (1)(a), Fla. Stat.; see also § 1012.33(6)(a), Fla. Stat. ("Any member of the instructional staff . . . may be suspended or dismissed at any time during the term of the contract for just cause[.]") The term "just cause” includes, but is not limited to, the following instances, as defined by rule of the State Board of Education: misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude. § 1012.33(1)(a), Fla. Stat. The term “misconduct in office” is defined in Florida Administrative Code Rule 6B-4.009, which prescribes the "criteria for suspension and dismissal of instructional personnel" and provides, in pertinent part, as follows: (3) Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, F.A.C., which is so serious as to impair the individual's effectiveness in the school system. The Code of Ethics of the Education Profession (adopted in Florida Administrative Code Rule 6B-1.001) and the Principles of Professional Conduct for the Education Profession in Florida (adopted in Florida Administrative Code Rule 6B- 1.006), which are incorporated in the definition of "misconduct in office," provide as follows: 6B-1.001 Code of Ethics of the Education Profession in Florida. The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, and the nurture of democratic citizenship. Essential to the achievement of these standards are the freedom to learn and to teach and the guarantee of equal opportunity for all. The educator’s primary professional concern will always be for the student and for the development of the student’s potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity. Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct. * * * 6B-1.006 Principles of Professional Conduct for the Education Profession in Florida. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida. Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator’s certificate, or the other penalties as provided by law. Obligation to the student requires that the individual: Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental and/or physical health and/or safety. Shall not unreasonably restrain a student from independent action in pursuit of learning. Shall not unreasonably deny a student access to diverse points of view. Shall not intentionally suppress or distort subject matter relevant to a student’s academic program. Shall not intentionally expose a student to unnecessary embarrassment or disparagement. Shall not intentionally violate or deny a student’s legal rights. Shall not harass or discriminate against any student on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition, sexual orientation, or social and family background and shall make reasonable effort to assure that each student is protected from harassment or discrimination. Shall not exploit a relationship with a student for personal gain or advantage. Shall keep in confidence personally identifiable information obtained in the course of professional service, unless disclosure serves professional purposes or is required by law. Obligation to the public requires that the individual: Shall take reasonable precautions to distinguish between personal views and those of any educational institution or organization with which the individual is affiliated. Shall not intentionally distort or misrepresent facts concerning an educational matter in direct or indirect public expression. Shall not use institutional privileges for personal gain or advantage. Shall accept no gratuity, gift, or favor that might influence professional judgment. Shall offer no gratuity, gift, or favor to obtain special advantages. Obligation to the profession of education requires that the individual: Shall maintain honesty in all professional dealings. Shall not on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition if otherwise qualified, or social and family background deny to a colleague professional benefits or advantages or participation in any professional organization. Shall not interfere with a colleague’s exercise of political or civil rights and responsibilities. Shall not engage in harassment or discriminatory conduct which unreasonably interferes with an individual’s performance of professional or work responsibilities or with the orderly processes of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment; and, further, shall make reasonable effort to assure that each individual is protected from such harassment or discrimination. Shall not make malicious or intentionally false statements about a colleague. Shall not use coercive means or promise special treatment to influence professional judgments of colleagues. Shall not misrepresent one’s own professional qualifications. Shall not submit fraudulent information on any document in connection with professional activities. Shall not make any fraudulent statement or fail to disclose a material fact in one’s own or another’s application for a professional position. Shall not withhold information regarding a position from an applicant or misrepresent an assignment or conditions of employment. Shall provide upon the request of the certificated individual a written statement of specific reason for recommendations that lead to the denial of increments, significant changes in employment, or termination of employment. Shall not assist entry into or continuance in the profession of any person known to be unqualified in accordance with these Principles of Professional Conduct for the Education Profession in Florida and other applicable Florida Statutes and State Board of Education Rules. Shall self-report within forty-eight (48) hours to appropriate authorities (as determined by district) any arrests/charges involving the abuse of a child or the sale and/or possession of a controlled substance. Such notice shall not be considered an admission of guilt nor shall such notice be admissible for any purpose in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory. In addition, shall self- report any conviction, finding of guilt, withholding of adjudication, commitment to a pretrial diversion program, or entering of a plea of guilty or Nolo Contendre for any criminal offense other than a minor traffic violation within forty-eight (48) hours after the final judgment. When handling sealed and expunged records disclosed under this rule, school districts shall comply with the confidentiality provisions of Sections 943.0585(4)(c) and 943.059(4)(c), Florida Statutes. Shall report to appropriate authorities any known allegation of a violation of the Florida School Code or State Board of Education Rules as defined in Section 231.28(1), Florida Statutes. Shall seek no reprisal against any individual who has reported any allegation of a violation of the Florida School Code or State Board of Education Rules as defined in Section 231.28(1), Florida Statutes. Shall comply with the conditions of an order of the Education Practices Commission imposing probation, imposing a fine, or restricting the authorized scope of practice. Shall, as the supervising administrator, cooperate with the Education Practices Commission in monitoring the probation of a subordinate. As shown by a careful reading of Rule 6B-4.009,8 the offense of misconduct in office consists of three elements: (1) A serious violation of a specific rule9 that (2) causes (3) an impairment of the employee's effectiveness in the school system. The second and third elements can be can be conflated, for ease of reference, into one component: "resulting ineffectiveness." A school board seeking to terminate an employee on the basis of misconduct in office must prove "each and every element of the charge." MacMillan v. Nassau County School Bd., 629 So. 2d 226 (Fla. 1st DCA 1993). Here, the School District did not allege or prove, nor has it argued, that De Palo violated a particular Principle of Professional Conduct. Further, none of the Principles appear, to the undersigned, to be obviously applicable to the situation at hand. Accordingly, it is concluded that the offence of misconduct in office has not been established. Conduct Unbecoming a School Board Employee The School Board grounded its charge of "conduct unbecoming a school board employee" on De Palo's alleged violation of School Board Rule 6Gx13-4A-1.21, which provides (the undersigned assumes) as follows: All persons employed by the School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the workplace is expressly prohibited. This particular offense is not one of the just causes enumerated in Section 1012.33(1)(a), Florida Statutes, although that statutory list, by its plain terms, is not intended to be exclusive. Yet, the doctrine of ejusdem generis10 requires that "conduct unbecoming" be treated as a species of misconduct in office, so that, to justify termination, a violation of School Board Rule 6Gx13-4A-1.21 must be "so serious as to impair the individual's effectiveness in the school system." See Miami- Dade County School Bd. v. Wallace, DOAH Case No. 00-4392, 2001 WL 335989, *12 (Fla.Div.Admin.Hrgs. Apr. 4, 2001), adopted in toto, May 16, 2001. This case does not involve allegations of abusive or profane language in the workplace. Thus, the question whether De Palo violated School Board Rule 6Gx13-4A-1.21 turns on whether his conduct was "unseemly." This is admittedly a fairly close question, made more difficult by the fact that the term "unseemly conduct," which is not defined in the Rule, has a kind of "I know it when I see it" quality. In view of the Rule's elasticity, it would be possible without straining to label De Palo's inappropriate behavior "unseemly." The word "unseemly," however, usually suggests inappropriateness manifesting indecency, bad taste, or poor form (e.g. a crude joke in mixed company), and while De Palo's conduct displayed a little of each, it was a lot more sophomoric than indecorous——a silly, rather than unseemly, prank. Thus, it is concluded, De Palo acted inappropriately but not in violation of School Board Rule 6Gx13-4A-1.21. Violence in the Workplace In Count I of its Notice of Specific Charges, the School Board accused De Palo of violating School Board Rule 6Gx13-4-1.08, which (apparently) provides in pertinent part: Nothing is more important to Dade County Public Schools (DCPS) than protecting the safety and security of its students and employees and promoting a violence-free work environment. Threats, threatening behavior, or acts of violence against students, employees, visitors, or other individuals by anyone on DCPS property will not be tolerated. Violations of this policy may lead to disciplinary action which includes dismissal, arrest, and/or prosecution. (Emphasis added.) The School Board neither alleged nor proved that De Palo engaged in "threats" or "threatening behavior." The questions at hand, therefore, are: (a) whether De Palo committed an act of violence against Ms. Hudson; and, if so, (b) whether the act was "so serious as to impair [De Palo's] effectiveness in the school system." Cf. Miami-Dade County School Bd. v. Wallace, DOAH Case No. 00-4392, 2001 WL 335989, *12 (Fla.Div.Admin.Hrgs. Apr. 4, 2001), adopted in toto, May 16, 2001. In support of its case, the School Board asserts (correctly, as far as it goes) that School Board Rule 6Gx13-4- 1.08 encompasses acts that constitute battery under the criminal law and tort law. From this premise, the School Board turns to statutes and cases dealing with battery, a wrong of which the essence is the intentional touching of another person against such person's will. As the School Board then points out, it is often not necessary, in making out a battery case, to prove that the offensive contact was actually harmful or even intended to cause harm. Thus, the School Board concludes, De Palo violated School Board Rule 6Gx13-4-1.08 because he intentionally touched Ms. Hudson against her will. The flaw in the School Board's logic is its casual equation of "acts of violence" (which the Rule proscribes) with "battery" (which the Rule does not mention). The fact is, although the two categories of misbehavior overlap to some extent, they are not synonymous. And significantly, of the two, "battery" is the broader, more inclusive class. The term "violence" is commonly understood to mean an "[u]njust or unwarranted exercise of force, usually with the accompaniment of vehemence, outrage, or fury." Black's Law Dictionary 1408 (5th ed. 1979). A battery——that is, an offensive or nonconsensual touching——can be committed with or without violence.11 Thus, while all or most acts of violence by one person against another constitute battery,12 all forms of battery clearly do not entail acts of violence.13 In this case, the evidence does not persuade the undersigned that De Palo committed an act of violence.14 De Palo, therefore, is not guilty of violating School Board Rule 6Gx13-4-1.08. IV. To terminate De Palo's employment, the School Board needed to show that his conduct not only violated a specific rule, but also that the violation was so serious as to impair his effectiveness in the school system. Although the School Board's failure to prove that De Palo violated a specific rule is reason enough to recommend against termination, the issue of resulting ineffectiveness will be discussed anyway, providing an alternative basis for decision. There was little, if any, direct evidence that De Palo's effectiveness in the school system was impaired as a result of the incident of January 23, 2003. On this issue, therefore, the Board must rely on inferences in aid of its proof. For the School Board to profit from an inference of resulting ineffectiveness, it must establish two things: (1) that the violation was not of a private immoral nature, and (2) that, on the basis of past experience as drawn from the fund of common knowledge, the violation would not, in the ordinary course of events, have failed to impair the individual's effectiveness in the school system. See Miami-Dade County School Bd. v. Wallace, DOAH Case No. 00-4392, 2001 WL 335989, *19 (Fla.Div.Admin.Hrgs. Apr. 4, 2001), adopted in toto, May 16, 2001. The allegations against De Palo do not involve misconduct of a private immoral nature, so the first condition is satisfied. The undersigned is not persuaded, however, that De Palo's carrying of Ms. Hudson back to her office could not have happened without impairing De Palo's effectiveness in the school system. Rather, taking into consideration all of the evidence in this case, it is determined that De Palo continued to be effective, notwithstanding the incident of January 23, 2003. Thus, while an inference of resulting ineffectiveness might be legally permissible under the circumstances of this case, such an inference is not factually justified and hence has not been drawn. Ultimately, therefore, the School Board failed to prove that De Palo's effectiveness in the school system was impaired by his conduct. For that independent reason, he must be found not guilty of the charges brought against him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order: (a) exonerating De Palo of all charges brought against him in this proceeding; (b) providing that De Palo be immediately reinstated to the position from which he was suspended without pay; and (c) awarding De Palo back salary, plus benefits, that accrued during the suspension period, together with interest thereon at the statutory rate. DONE AND ENTERED this 20th day of May, 2004, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 2004.
