The Issue Whether Respondent's employment as a teacher by the Miami- Dade County School Board should be terminated for the reasons specified in the letter of notification of suspension and dismissal dated June 20, 2013, and the Notice of Specific Charges filed on August 28, 2013.
Findings Of Fact Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Miami- Dade County, Florida. At all times pertinent to this case, Respondent was employed as a social studies teacher at Horace Mann Middle School ("Horace Mann"), a public school in Miami-Dade County, Florida. At all times material, Respondent's employment was governed, in part, by a collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade ("UTD Contract"). Dr. Jones-Carey, the principal at Horace Mann, was authorized to issue directives to her employees, including Respondent. Dorothy De Posada, the assistant principal at Horace Mann, was authorized to issue directives to her employees, including Respondent. Petitioner alleges, in its Notice of Specific Charges, an array of factual scenarios spanning several years that, when considered individually or in concert, supply just cause for Respondent's termination. Below, the undersigned has endeavored to address each seriatim. 2010-2011 School Year: Dr. Jones-Carey issued Respondent a letter of reprimand on May 23, 2011, concerning an alleged incident that occurred on April 27, 2011. On May 25, 2011, Dr. Jones-Carey held a Conference for the Record ("CFR") regarding this alleged incident.1/ Respondent was directed to strictly adhere to all Miami-Dade County School Board ("MDCSB") rules and regulations, specifically, rules 6Gx13-4A-1.21 and 6Gx13-4A-1.213. 2011-2012 School Year: On April 13, 2012, subsequent to the investigation of an alleged incident that occurred on February 27, 2012, a CFR was held. Respondent was directed to adhere to all MDCSB rules and regulations, specifically 3210, Standards of Ethical Conduct, and 3210.01, Code of Ethics. Respondent was further directed to refrain from contacting any of the parties in the incident, refrain from using physical discipline, and "to conduct [herself] both in [her] employment and in the community in a manner that will reflect credit upon [herself] and M-DCPS." Respondent agreed to a 17-day suspension without pay regarding the alleged incident. 2012-2013 School Year: October 24, 2012 On November 16, 2012, subsequent to an investigation of an alleged incident that occurred on October 24, 2012, a CFR was held. Respondent was directed to adhere to all MDCSB policies, specifically 3210, Standards of Ethical Conduct, and 3210.01, Code of Ethics; refrain from contacting any parties involved in the investigation; and "to conduct [herself] both in [her] employment and in the community in a manner that will reflect credit upon [herself] and M-DCPS." Additionally, on November 28, 2012, Respondent was issued a letter of reprimand concerning the October 24, 2012, incident. November 5, 2012 On November 5, 2012, Dr. Jones-Carey observed several male students standing outside of Respondent's classroom during the class period. While Petitioner contends said students were told to remain outside of the classroom at Respondent's instruction due to body odor, Petitioner failed to present sufficient evidence to support such a finding.2/ November 26, 2012 Shawnda Green-McKenzie is the Horace Mann social studies department chair and a social studies teacher. Ms. McKenzie explained that, on or around November 26, 2012, it was necessary for several homeroom classes to be "dissolved." The students in the dissolved homeroom classroom were to be added to the roster of other homeroom classes. Ms. McKenzie further explained that the homeroom teachers, such as Respondent, were unaware of the number of additional homeroom students they would acquire until the day the additional students arrived. On November 26, 2012, Ms. Green-McKenzie observed that a substantial number of the newly acquired students did not have desks or chairs available for their use in Respondent's homeroom class. She further observed some of the children sitting on the floor. Petitioner failed to present any evidence concerning when the new students presented themselves to Respondent's homeroom or the duration said students did not have available desks or chairs. While Ms. Green-McKenzie agreed that children sitting on the floor would "be kind of a safety concern if someone were walking around in the classroom," she further opined that Respondent's classroom was "definitely too small to take any additional desks" and adding additional chairs would make it "tight." February 8, 2013 On March 21, 2013, subsequent to an investigation of an alleged incident that occurred on February 8, 2013, a CFR was held. Respondent was directed to adhere to MDCSB policies and conduct herself in her employment and community in a manner that would reflect credit upon herself and the teaching profession. On April 9, 2013, Respondent issued a letter of reprimand concerning the alleged incident which likewise directed her to adhere to MDCSB policies and conduct herself in her employment and community in a manner that would reflect credit to herself and the teaching profession. February 20, March 7, and April 1, 2013 Dr. Jones-Carey testified that, on those occasions when a teacher is absent and a substitute teacher is unavailable, the students are typically "split" among classrooms within the same department. Teachers are expected to cooperate and receive the "split-list" students. Prior to February 9, 2013, Respondent was accommodating and amenable to accepting students on the "split-list." On February 20, March 7, and April 7, 2013, however, Ms. Green-McKenzie was informed that Respondent was unable to receive, or uncomfortable in receiving, any additional students. Respondent's refusal to accept the split-list students was premised upon her concern that accepting students, who may potentially have behavioral problems, may incite further problems between herself and the Horace Mann administration. After the second occasion (March 7, 2013), Ms. McKenzie-Green simply stopped placing Respondent's name on the split-lists. On each of the above-referenced occasions, Ms. McKenzie Green accepted the Respondent's split-list students into her classroom. Ms. McKenzie-Green explained that her classroom is a "double" that always has additional space and seating and can accommodate upwards of 60 students. Dr. Jones-Cary credibly testified that Respondent's unwillingness to accept the split-list children created a disruption in the "flow of instruction" and was disruptive to the operation of the school. March 1 and 5, 2013 On March 1 and March 5, 2013, Ms. De Posada observed Respondent, during class, seated in a chair in the doorway of her classroom with her feet up on the doorframe. On both occasions, Ms. De Posada directed Respondent to move inside the classroom; however, she refused. March 7, 2013 On March 7, 2013, Ms. De Posada observed that Respondent's classroom door was open. When Ms. De Posada directed Respondent to close the door, Respondent refused. In addition to Ms. De Posada's directive, Dr. Jones-Carey had previously issued an email directive to all faculty and staff to keep the classroom doors closed in an effort to preserve the newly-installed air-conditioning system. March 12, 2013 On March 12, 2013, Ms. De Posada was present in the main office with several parents, as well as clerical staff. Respondent was also present in the main office for the purpose of making photocopies. Due to the number and nature of individuals present, coupled with a pending deadline on another administrative matter, Ms. De Posada requested Respondent to leave the main office and offered clerical assistance in providing Respondent the needed copies. Ms. De Posada credibly testified that, in response to the request, Respondent complained loudly and defiantly, and refused to leave the office when directed. March 21, 2013 On March 21, 2013, Ms. De Posada presented to Respondent's classroom to conduct an official observation. On that occasion, she observed that, after the class bell had rung, Respondent's students remained outside and unsupervised. Ms. De Posada took it upon herself to usher the students inside the classroom. Respondent arrived prior to the late bell and took her seat at her desk. Ms. De Posada advised Respondent that she was there to officially observe and requested Respondent's lesson plans. Ms. De Posada credibly testified that Respondent thereafter opened her desk drawer, tossed her lesson plans to Ms. De Posada without speaking, and slammed the desk drawer.3/ Respondent proceeded to call roll and, upon completion of same, began reading the paper. Once finished her reading, Respondent remained in her chair and, with the exception of reprimanding three children, did not engage with the students. Respondent did not engage in any conversation with Ms. De Posada throughout the duration of the observation. Respondent concedes that she did not interact with Ms. De Posada during the observation because of her concern of being falsely accused of irate or belligerent behavior. April 3, 2013 On April 3, 2013, Horace Mann held a mandatory faculty meeting to provide training for the Florida Comprehensive Assessment Test ("FCAT"). Per the UTD Contract, teachers are required to extend their workday for the purpose attending faculty meetings; however, such meetings cannot exceed one hour and shall begin no later than ten minutes after students are dismissed. On this occasion, the faculty meeting was scheduled to begin at 4:00 p.m., however, it began a few minutes later to allow all teachers to arrive. Respondent, believing the UTD Contract allowed for her to leave at 5:00 p.m., left prior to the meeting being formally dismissed and without prior approval, at approximately 5:00 p.m. When Dr. Carey-Jones called out to Respondent, she continued to walk away from the meeting. Respondent was notified via a school-wide email that a make-up session for the FCAT training would be conducted at 8:20 a.m. Respondent perceived the make-up session was voluntary because it was scheduled prior to 8:30 (the time she believes she is required to work) and conflicted with a FCAT practice run also scheduled for that morning. Respondent did not seek clarification as to where she was to report. Accordingly, Respondent did not present to the training, but rather, went to the testing center. It is undisputed that Respondent did not complete the requisite training, and, therefore, was unable to proctor the FCAT exam. As a result, other teachers were assigned to cover Respondent's duties or responsibilities. April 24 and May 6, 2013 On April 24, 2013, a CFR was held and Respondent was directed to adhere to School Board polices and conduct herself in her employment and community in a manner that would reflect credit upon herself and her profession. On May 6, 2013, following Dr. Jones-Carey's recommendation that Respondent's employment be terminated, the Office of Professional Standards ("OPS") held a final CFR. Thereafter, OPS recommended that Respondent's employment be suspended pending dismissal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Miami-Dade County School Board enter a final order finding Shavonne Anderson guilty of gross insubordination, suspend her employment without pay for a period of 180 school days, and place her on probation for a period of two years. Because Ms. Anderson has already been suspended for more than 180 school days, it is RECOMMENDED that her employment be reinstated, with the calculation of back pay not to include pay for the 180- day suspension period. DONE AND ENTERED this 30th day of December, 2013, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 30th day of December, 2013.
The Issue Whether Respondent committed the acts alleged in the Notice of Specific Charges filed October 11, 2010, and, if so, the discipline, if any, that should be imposed against Respondent's employment.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. At all times relevant to this proceeding, Respondent has been on an annual contract that is subject to a professional service contract and collective bargaining agreement between Miami-Dade County Public Schools (hereinafter "M-DCPS") and the United Teachers of Dade (hereinafter "the UTD Contract"), applicable Florida Statutes, applicable rules adopted by the Florida State Board of Education as set forth in the Florida Administrative Code, and Petitioner's adopted policies and procedures. Article XXI, Section 1.B(1)(a) of the UTD Contract provides that "Any member of the instructional staff may be suspended or dismissed at any time during the school year, provided that the charges against him/her are based upon Florida Statutes." Santa Clara Petitioner first employed Respondent as a classroom teacher beginning in 2004 and assigned him to teach fourth-grade math at Santa Clara Elementary School (Santa Clara). In May 2007, Petitioner's Civilian Investigative Unit (CIU) investigated an allegation that Respondent made verbal threats, using profane language, towards the principal at Santa Clara. Respondent was placed on alternate assignment at the Region 3 Office on May 3, 2007, pending the outcome of the case. The allegation was substantiated for violation of School Board Rule 6Gx13-4A-1.21 (Responsibilities and Duties). During a Conference for the Record, written directives were issued to Respondent. On November 1, 2007, Respondent was issued a written reprimand which contained the following directives: Please abide by Miami-Dade County Schools (M-DCPS) School Board Rules at all times, specifically, School Board Rule, 6Gx13-4A- 1.21 Responsibilities and Duties; School Board Rule, 6Gx13-4-1.08, Violence in the Workplace; and School Board Rule 6Gx13-4A- 1.23, Code of Ethics. Conduct yourself, both in your employment and in the community, in a manner that will reflect credit upon yourself and M-DCPS. The Education Practices Commission filed a complaint against Respondent based on the incident at Santa Clara. That complaint was settled with Respondent receiving an administrative fine in the amount of $500.00. As part of the settlement agreement, Respondent did not admit or deny the alleged facts of the Santa Clara incident. Turner Tech 2007-08 School Year Petitioner transferred Respondent to Turner Technical Senior High School (Turner Tech) in November 2007, where he taught math. There were no adverse incidents during the balance of the 2007-08 school year. Turner Tech 2008-09 School Year Valmarie Rhoden was the principal of Turner Tech during the 2008-09 school year and part of the 2009-10 school year. Phillipe Napoleon was an assistant principal at Turner Tech during the 2008-09 and 2009-10 school years.1 On November 18, 2008, one of Respondent's students told Respondent not to touch him and threatened to harm Respondent if he did so. Dr. Napoleon and Ms. Rhoden handled the situation for Respondent by giving the student two days of indoor suspension. Respondent became irate when he learned that the student was not to be more severely punished. After he learned of the student's punishment, Respondent yelled at Dr. Napoleon in the earshot of students and other school personnel. Respondent attempted to undermine Dr. Napoleon's authority. After that incident, Respondent and Dr. Napoleon had a very contentious relationship. On February 19, 2009, Ms. Rhoden issued Respondent a memorandum entitled "Responsibilities and Duties" along with the Board Rule for his review regarding his unprofessional behavior because he had made an unprofessional outburst during a faculty meeting that Ms. Rhoden conducted and because Respondent had made unprofessional comments to other administrators. That memorandum provided, in part, as follows: Please be reminded that it is your professional responsibility to conduct yourself in a manner that reflects credit upon yourself and the teaching profession. During the faculty meeting on Tuesday, February 17, 2009, you made an inappropriate comment and noise while I was addressing the faculty on the respect shown teachers at the North Central Regional Center Teacher of the Year Breakfast. On December 18, 2008, I met with you; Mr. Hoffman (Lead Steward); Ms. Meyers (Steward); Mr. Mantilla, Vice Principal; and Mr. Napoleon, Assistant Principal, to discuss a series of verbal altercations you had with these administrators. We discussed the importance of being professional and respectful when addressing administrators and students. Please be advised that your conduct is a violation of School Board Rule 6Gx13-4A-1.21 and is unacceptable. Please refrain from addressing others in a manner that may be deemed unprofessional. A copy of the Board Rule is attached for your review. If you need further clarification, please see me. Your cooperation is expected and appreciated. On April 27, 2009, Ms. Rhoden convened an Emergency Conference for the Record with Respondent to discuss reports of misconduct by Respondent during a UTD meeting that had occurred on April 23, 2009, and reports of inappropriate comments attributed to Respondent during a parent-teacher conference that occurred on April 24, 2009. Participants at the UTD meeting reported that Respondent became uncontrollable and made disparaging remarks against the union representative who conducted the meeting. Teachers reported to Ms. Rhoden that they left the meeting because they had become afraid of Respondent. The parent in the parent-teacher meeting reported that, in the presence of students, Respondent referred to Ms. Rhoden as a "bitch" and to administrators as "three blind mice." The parent reported that Respondent had said "screw" administrators. When Ms. Rhoden confronted Respondent about his behavior, he became enraged and engaged in an uncontrolled tirade. A Conference for the Record was conducted at the school on Monday, April 27, 2009, and Ms. Rhoden issued the following directives to Respondent: Adhere to all School Board rules, especially those related to Responsibilities and Duties. Adhere to the Code of Ethics. Conduct yourself in a professional manner at all times with all school personnel, parents and other stakeholders. Do not use profanity in the presence of students, faculty, staff and other stakeholders. Do not disrespect your administrators in your manner of speech or physical approach. Do not use provocative language towards administrators, students, staff, or other stakeholders. Respondent was the subject of a separate investigation based on an incident of misconduct that occurred on April 13, 2009, first in the hallway outside of Respondent's classroom and later in or near Dr. Napoleon's office. The incident that triggered Respondent the confrontations on April 13, 2009, occurred when Dr. Napoleon, while conducting routine observations of classrooms, noticed that a student in Respondent's classroom was wearing headphones. Dr. Napoleon entered Respondent's classroom and removed the headphones from the student. Respondent confronted Dr. Napoleon outside his classroom and said "how dare you come into my classroom and disrupt my classroom" in a "profoundly loud" manner in the hallway within earshot of school personnel and students. Later in the day, Respondent confronted Dr. Napoleon in the office area. Respondent was upset and became aggressive towards Dr. Napoleon when he demanded an explanation of a memorandum relating to the earlier confrontation that Dr. Napoleon had issued to him. Ernesto Mantilla, a vice-principal at Turner Tech, stepped between Respondent and Dr. Napoleon because of Respondent's aggressive, threatening behavior. Mr. Mantilla, who has military training, put himself in what he referred to as "harm's way" because he felt it necessary to de- escalate the situation. During that incident, Respondent told Dr. Napoleon that he was a "joke" and that he should leave the administration's efforts to Ms. Rhoden and Mr. Mantilla. Respondent threatened to tear up Dr. Napoleon's memorandum in front of Dr. Napoleon. Respondent asserted that his contract did not mandate him to be professional. He taunted Dr. Napoleon by telling him that if Dr. Napoleon was going to fire him, to just go ahead and do it so he can collect a check and stay home. Respondent refused to provide a statement during the course of that investigation stating that "it will take a year and a half to go through the process", and he would be resigning anyway at the end of the year. On May 14, 2009, Ms. Rhoden issued Respondent a letter of reprimand for his behavior on April 13, 2009, which directed him to immediately refrain from displaying unprofessional, confrontational behavior. The letter of reprimand also directed Respondent to stop using abusive and profane language in the performance of his assigned duties. Ms. Rhoden testified, credibly, that she and many of the staff members were afraid at times when Respondent "would go into his rage." His conduct "disrupted the environment" and impeded the workings of the school. Turner Tech 2009-10 School Year In September 2009, Dr. Napoleon conducted a training session for faculty at Turner Tech referred to as IPEGS training. Respondent was required to complete that training to maintain his teaching certification. Respondent left the room in which the training occurred and was absent for over half of the training session. Dr. Napoleon refused to award Respondent credit for the IPEGS training. Respondent became irate when told he would not be given credit and believed that Dr. Napoleon was harassing him. Ms. Rhoden retired in October 2009, and Lavette Hunter became the principal of Turner Tech. On or about October 19, 2009, Respondent replied to a co-worker's email and sent it to all employees sarcastically commenting on the teacher's updating of the school on his involvement with a student internship program. Respondent stated, "please, no more e-mails about your presence. You're wonderful. Feel better?" The teacher complained to Ms. Vidal, and when she discussed the concern with Respondent, he was very irate and said that he was "tired of this bullshit" and was leaving for the day. Respondent told her to find coverage for his class and left school. On October 26, 2009, Respondent went into Dr. Napoleon's office "ranting and raving" because he said that Dr. Napoleon was talking about him. During that meeting, Respondent asked Dr. Napoleon whether he had gotten to be an assistant principal as a result of affirmative action. When Dr. Napoleon asked him to leave his office, Respondent refused, stating that he was going to leave when he got ready to leave. He thereafter left. Dr. Napoleon believed that Respondent's comment was a racial slur and, on October 27, 2009, filed a complaint with the M-DCPS Office of Civil Rights, which triggered an investigation (the civil rights investigation). Dr. Napoleon is African- American, and Respondent is Caucasian. Respondent disrupted a faculty meeting conducted by Dr. Napoleon on October 27, 2009, and stormed out of the meeting causing his co-workers to feel uneasy and unsafe. Respondent got upset when Dr. Napoleon declined to interrupt his presentation to answer Respondent's question. Respondent was loud and disruptive (Dr. Napoleon described it as "ranting and raving"). Respondent made a threatening gesture towards Dr. Napoleon as he left the room. Dr. Napoleon testified, credibly, that Respondent's conduct undermined his authority to lead and to provide a safe learning environment for students and for teachers. On October 28, 2009, Ms. Vidal (an assistant principal at Turner Tech) met with Respondent. During the course of the meeting, Respondent expressed that he thought he was being harassed and that he viewed himself as a disgruntled employee. He then made an implied threat that students would suffer on the FCAT because of the manner in which he was being treated. Ms. Vidal was so disturbed by Respondent's comments that she felt that she immediately contacted her principal and put the incident in writing. Respondent was removed from the school effective November 5, 2009 and placed on alternate assignment during the course of the civil rights investigation. On his last day at his worksite, Ms. Vidal and a security guard escorted Respondent to his classroom so he could collect his belongings before he was escorted out of the building. While in the classroom, in the presence of students, Respondent made demeaning comments to Ms. Vidal and told her that she and Ms. Hunter were responsible because they had not protected him from Dr. Napoleon. Respondent's demeanor and his outbursts caused Ms. Vidal to fear for her safety. Based on Respondent's conduct in October and November 2009, Ms. Hunter made a finding that "Probable Cause" existed that Respondent had violation of School Board Rule, 6Gx13- 4A- 1.21, Responsibilities and Duties. A Conference for the Record was conducted by Ms. Hunter on January 5, 2010, and Respondent was directed to "refrain from using inappropriate actions [sic] during the work day" and was issued copies of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties, State Board of Education Rule 6B-1.001, FAC, and State Board of Education Rule 6B-1.006, FAC, The Code of Ethics and the Principles of Professional Conduct of the Education Profession. He was also issued a letter of reprimand. Respondent was warned that "noncompliance with this directive will necessitate further review for the imposition of additional disciplinary measures" and "any recurrences of the above infraction will result in further disciplinary action." The matter was referred to the Regional Office to for further review (the conduct investigation). Administrative Placement Respondent remained out on Administrative Placement pending the disposition of the conduct investigation and the civil rights investigation. On March 16, 2010, the School Board's Office of Civil Rights Compliance closed its civil rights investigation, concluding that "No Probable Cause" existed that a violation had occurred. During his administrative placement for the civil rights investigation, Respondent was assigned to his residence and was not working. As part of his administrative placement, Respondent was instructed to call the Region Office twice each day at specific times, once in the morning and once in the afternoon. If he failed to call-in as instructed, he would not be entitled to payment for that day. Respondent did not call either morning or afternoon on seven days on which he was assigned to his residence and not working. On four days he called in the morning, but not in the afternoon. Petitioner initially withheld pay from Respondent for 11 days, but later issued him pay for the four days on which he called in the morning, but not the afternoon. During his administrative placement, Respondent again began to exhibit abusive behavior by making numerous and repeated harassing telephone calls to administrative offices. On March 17, 2010, at 1:00 p.m., M-DCPS Region I Secretary Maria Rosemond received a phone call from Respondent. Respondent asked to speak to Mr. Richard Vidal, who is the administrative director of Region I. Ms. Rosemond told Respondent that Mr. Vidal was not in. Mr. Cohen again asked to speak to Mr. Vidal, and Ms. Rosemond told him he was not there. Respondent then said, "I know Vidal is there. Tell him I will be there in half an hour to get his fucking ass out." Respondent then hung up the phone. Ms. Rosemond was afraid that he was going to actually come to region and harm Mr. Vidal or others at the Region I office. An hour later, Respondent called again and asked to speak to Mr. Vidal. Ms. Rosemond transferred the call to Jennifer Andreu, Administrative Director, and Respondent explained that he was upset about a situation at Turner Tech. Ms. Andreu told Respondent that she would speak to the principal and rectify the problem. Respondent cursed at her and called her incompetent. On March 4, 2010, Respondent called Turner Tech demanding to speak to Ms. Hunter. When the phone call was transferred to Dr. Napoleon, Respondent yelled out, "Why the fuck did they transfer the call to you. I want to speak with Ms. Hunter, not you." When he spoke to Ms. Hunter, Respondent became irate and very loud. Ms. Hunter disconnected the line and never spoke to Respondent again (until the formal hearing). During the call, Respondent referred to Dr. Napoleon as an idiot and demanded that personnel at Turner Tech inform any caller asking about Respondent to respond by informing the caller that that he works at the Region I office. He further threatened that his lawyer would be calling and that the calls would be recorded. Respondent does not dispute his confrontations on the phone with numerous secretaries with whom he spoke. Respondent admitted to the admissibility and the accuracy of the written statements from those secretaries taken during the course of the investigation(s). Respondent believed that he should have been reinstated to the classroom at the conclusion of the civil rights investigation. Because the conduct investigation was still pending, it was not appropriate to place Respondent back into a classroom while the additional issues concerning his conduct were being reviewed. As such, Respondent remained out on alternate assignment pending the disposition of this new investigation. On April 22, 2010, Dr. Marinelli, the Region I superintendent, met with Respondent to discuss his employment status. They reviewed the disposition of the civil rights complaint and formally informed Respondent that a CIU investigation was being conducted regarding his alleged violations of School Board Rules and misconduct. During the meeting, Respondent referred to Dr. Marinelli as "dear," told her to be careful when reading and if she was nervous to relax, and tried to speak over her as she read the allegations of misconduct to him. He further goaded her by telling her that the complaint should have been filed by Mr. Vidal and to get with his attorney because she was getting bad advice. When Dr. Marinelli read the allegation to him, he said "let me see that paper". She discussed the terms and conditions of his administrative placement and advised him that the conduct investigation was a separate proceeding than the civil rights case. Respondent became increasingly agitated as Dr. Marinelli read him his terms and conditions, and then yelled "just give me those papers". When she handed him the papers, he tore them in pieces and said in a loud voice "this is garbage, you are the queen of garbage". Respondent told Dr. Marinelli, "you may be able to click your fingers and your husband may do what you say, but I don't have to do what you say. I'm not afraid of you." Police came into the room due to his loud and disruptive behavior. During the course of the conduct investigation, Respondent was interviewed by CIU investigators. During his interview, he told one of the investigators to just fire him already, and he called the investigators liars. He took out his cell phone and represented that he was on the phone with an attorney and that he was recording their meeting. He even fabricated that one investigator was physically attacking him. Due to his belligerent and aggressive conduct and his verbal tirade, the meeting was terminated and a police officer was summoned to escort him out. On June 8, 2010, CIU issued a report that concluded that "Probable Cause" existed that Respondent had violated School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties, 6Gx13-4A1.212, code of Ethics, and School Board Rule 6Gx13-4- 1.08, Violence in the Workplace. Before Respondent was administered disciplinary action as a result of the conduct investigation, he again engaged in additional misconduct toward Dr. Marinelli that led to a final investigation conducted by the School Police. On July 29, 2010, Dr. Marinelli received a phone call from Respondent wherein he was agitated and uttered profanity, including the "F" word, at her. He further yelled, "Don't think I'm afraid of you. What I'm afraid is if you would sit on me." That call was disconnected. He called again, and Dr. Marinelli took the call. Prior to her taking the call, Respondent had told a secretary that Dr. Marinelli could not hide behind a secretary. During that call Respondent continued to yell at Dr. Marinelli, stating "I dare you to do anything. You can't do anything to me." Dr. Marinelli told him to not call again, and he proceeded to call numerous times. When an investigator questioned Respondent during his investigation of the calls on July 29, 2010, Respondent told the investigator that he had called Dr. Marinelli a "fucking fat cow." That investigation was concluded with a finding of probable cause that Respondent had violated the rules cited in the Notice of Specific Charges. A Conference for the Record was held with Respondent on August 5, 2010, at the Office of Professional Standards. Following that conference, the superintendent of schools recommended to Petitioner that Respondent's employment be terminated. Petitioner, at its regularly scheduled meeting of September 7, 2010, took action to suspend and initiate dismissal proceedings against Respondent for just cause, including but not limited to, misconduct in office, gross insubordination, violence in the workplace, and violation of the School Board Rules cited in the Notice of Specific Charges. Petitioner followed all relevant procedures in prosecuting this disciplinary proceeding.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order sustain the suspension of Respondent's employment without pay and terminate that employment based on misconduct in office and gross insubordination. DONE AND ENTERED this 8th day of March, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 2011.
Findings Of Fact Roland C. Foote, Respondent, holds Florida teaching certificate number 107445, Graduate, Rank II. He served as Principal of Webster Elementary School (formerly Webster Junior High), hereinafter called Webster, from 1968 until he was replaced in late 1978. He has been employed in the Florida school system for more than twenty-five years. On May 8, 1978, Respondent sent a letter (Exhibit 10) to the Sumter County School Superintendent recommending the suspension of James Constable, one of the teachers at Webster. This was referred to the PPC for investigation by the Superintendent. By letter dated May 16, 1978 (Exhibit 12) some 11 teachers at Webster signed a letter to Ms. Angela J. Peterson, an investigator for the PPC, requesting an audience to discuss several urgent matters relating to Webster. Constable was one of the signers of this letter. Some of those who signed were aware the purposes was to complain of the manner in which Respondent ran Webster; others thought the purpose was to assist Constable. The first meeting with the PPC representative was held on June 6, 1978. Some eight teachers attended this meeting, discussed with Ms. Peterson several situations of which they were aware involving possible improper conduct by Respondent, and agreed to provide PPC with testimony and facts necessary to prepare charges against Respondent. Numerous additional meetings were held by this group, some with PPC representatives and others without PPC representation, for the purpose of reconstructing the dates of the incidents complained of and to ascertain who had knowledge of the incidents. Prior to discussing the specific charges preferred against Respondent and the evidence relating thereto, additional background information gleaned from the testimony and the exhibits admitted into evidence is first presented. Sumter County is predominantly a small-farm agricultural area as opposed to an urban society, with the socioeconomic level below that of most of the larger counties in Florida. In addition to those permanent residents who live and work on farms, there are migrant workers who appear at harvest time. The population mix is about 1/3 black and that is also the school population mix. Several of these students are classified as educationally mentally retarded and qualify for supplemental education programs. About 7 of the 25 teacher faculty at Webster are black and no evidence of any faculty racial tensions or frictions was presented. Friction has existed at Webster between some faculty members and Respondent for a long time. In school year 1974-75 a special workshop was conducted at Webster to improve the communications between the faculty and the administration. The workshop met with mixed success. Some of the teachers at Webster mad minor complaints to various supervisors over the years but none was ever willing to reduced a complaint to writing and present it to the Superintendent. As a result, the Superintendent on one occasion told the faculty at Webster that he was tired of hearing complaints about Webster and for them to work out their problems at the school. The principal at smaller schools, where assistant principals or deans are not provided, is the primary as well as final, authority in the discipline of students and in particular in the administering of corporal punishment. In addition to a wooden paddle or two, Respondent had provided himself with a leather strap which he also used to administer corporal punishment. The strap used by Respondent was admitted into evidence as Exhibit 20. At the time it was used, a metal slat was inserted between the two pieces of leather comprising the strap to provide additional stiffness. The addition of this metal slat did not make the strap a more sinister punishment tool. Straps similar to Exhibit 20 are sold in tack shops and are called bats. They are approximately 18 inches long and are comprised of two pieces of leather one-eight inch thick, sewed together. The bat is about one inch wide through the first foot of its length and then flares out to two inches wide at the end. The two pieces of leather at the flared end are not sewn and they clap together making a louder noise when something is struck with the bat than would occur with only a single piece of leather. It is this flared part of the bat that contacts the backside of a pupil who is administered corporal punishment. This strap or bat will cause less injury to a student than a wooden paddle if each is used with the same degree of force. While the immediate sting from the bat may be as great as the sting from a paddle, the former is much less likely to bruise a child than is the paddle. Some of the implications of the material allegations, as well as the opinions of some witnesses, are that the use of a leather strap for administering corporal punishment is itself cruel and unusual. So long as corporal punishment is authorized, these implications and opinions are without foundation. The material allegations preferred against Respondent will be discussed in chronological order. It is to be noted that the two earliest incidents were familiar to many people at the time they occurred, but no action was taken until 1978. Material Allegation 3 alleges that on or about March 1, 1972 at 8:30 a.m. Larry James, a ten-year old black student at Webster, received an eye injury resulting in the loss of sight in the injured eye when a nail he was attempting to drive was deflected by the hammer and became impaled in his right eye. James was attempting to repair a loose leg on a chair which his teacher had told him to get the custodian to fix. While the teacher was out of the room, James attempted to repair the chair and the accident ensued. James pulled the nail from his eye and ran to the bathroom. His teacher, Mrs. Batten, took him to the office. Respondent was not at school on March 1, 1972 and did not see James until after James returned to school several days later. Petitioner presented five witnesses, including James, the doctor who treated him, his mother, and Mr. and Mrs. Donahue, who were teachers at Webster to whom James was taken by the teacher, Mrs. Batte. None of these witnesses saw Respondent on the day of the accident. James was not sent to a doctor and spent most of the day in Mrs. Donahue's class until the school bus took him home, presumably after 2:45 p.m. His mother testified she had James taken to a doctor that day, which she identified as 2 March, two days after her youngest child was born on 28 February 1972. 1972 was a leap year and February that year contained 29 days. James was referred to the hospital in Ocala by his family doctor, Dr. Wiley. The medical records show James was admitted at 3:56 p.m. on March 2, 1972. It is doubtful James could have reached home on the bus before 3:15 p.m. or reached Dr. Wiley's office before 4:00 p.m. The only time and date certain was the date and time admission to the hospital. The parties stipulated that school records would show Larry James was absent from school on March 2, 3 and 4, 1972. Accordingly, the accident obviously occurred March 1, 1972. The evidence was undisputed that on March 1, 1972, Respondent Foote was in Leesburg attending the closing on the residence he was purchasing. Respondent's testimony to this effect was corroborated by the bank closing officer and documents executed at closing (Exhibit 43). Respondent testified that he first learned of James' injury the following day when he returned to school. Material Allegation 11 alleges that in school year 1971-72 or 1972-73 Respondent struck Louise Weddell, a student, in the face knocking her to the ground. The date of the incident was not established with any degree of certainty. Louise Weddell, now 20 years old, testified that she was 15 and in the seventh grade when the incident occurred. According to Louise, she was fighting with another girl outside the building when Respondent came out with a paddle in his hand to break up the fight. Louise testified that Respondent slapped her with his left hand, knocking her to the ground; that she got up, called him a black mother fucker and ran away. She denied spitting in Respondent's face. For running away she was suspended for 10 days. Several witnesses observed the incident. All except Respondent testified to the slapping and one saw Foote wipe his face with his handkerchief after Louise ran away. Respondent's testimony was that while he was stopping the fight Louise called him the name and spit in his face. He admitted only "pushing" her in the face with his left hand. Material Allegation 10 alleges that during the 1974-75 school year Respondent paddled Gralyn Dorsy numerous times on the buttocks, legs, sides and hips while calling him "a sorry nigger on food stamps and welfare." The evidence is undisputed that Respondent paddled Dorsey several times during that school year (Exhibit 45). The incident leading to the allegation occurred on March 3 1975 when Dorsey was brought to Foote by Mrs. Jones for a discipline problem she did not know how to handle. It appears that the previous day while Foote was away from school Dorsey had committed some vulgar act, the nature of which was not disclosed at the hearing, with another boy in the bathroom. Mrs. Jones expected Respondent to counsel Dorsey. Instead, Dorsey was given a paddling. Mrs. Jones does not remember if James Constable was also present. She testified that she counted 13 licks. Exhibit 45, the paddle list, shows 5 licks given to Dorsey. James Constable testified he also observed the paddling of Dorsey and that after Dorsey had been given 2 or 3 hard licks he started to get up. Respondent pushed him back over the chair saying "I'm not through with you, boy", appeared to lose control and began flailing away while calling Dorsey a sorry nigger on food stamps and welfare. According to Constable, Dorsey received 12 or 13 licks and, while squirming around, some of the blow landed on the side of Dorsey's hip and one landed on his hand. Mrs. Jones was upset over the severity of the paddling. Neither she nor Constable made a complaint until after May, 1978. The school secretary, Doris Brank, whose desk was just outside Foote's office, recalls two paddlings of Dorsey, one at which he was given 3 licks. She never heard Respondent make racial slurs to children while disciplining them. Material Allegation 2 alleges that in the spring of 1976 Herbert Brown, a student, injured his ankle on the playground before school and Respondent wouldn't allow Mrs. Miriam Jones, his teacher, to take him home or to the doctor but required he remain in school. On 2 February 1976 Herbert Brown, a twelve-year old black student, injured his ankle while playing before school. Mrs. Jones took roll call in Herbert's room and learned his ankle was hurting him. She took him to Respondent and asked permission to take him home. Respondent examined the ankle, saw it was slightly swollen and had his secretary, Mrs. Branch, call the phone number on Herbert's records. No answer was received. Respondent refused Mrs. Jones' request to take Herbert home. The ankle continued to swell. Mrs. Branch also called the doctor, whose office was closed. When school was out, Mrs. Jones drove Herbert home. His mother took him to Dr. Lehrer, who examined Herbert's ankle in the emergency room at the hospital and diagnosed the injury as a sprain. No medication was prescribed, as the pain did not appear sufficient to warrant treatment. The doctor has no independent recollection of the incident but, because he prescribed no medication, would assume the sprain was not severe. Material Allegation 9 alleges that on or about January 6, 1977 Respondent paddled Greg Christian while stating that people in the "subs" did not tell "this white man" what to do. When taken to Respondent for disciplining by his teacher, Molly Jo Teters, Greg told Respondent his brothers said Foote was not to paddle him any more and to run home if he did. Mrs. Teters testified that Respondent, while paddling Greg, told him "people in the subs don't tell this white man what to do." Greg's testimony was that following his remarks about Foote not paddling him, Foote held up a clenched fist saying, "This is black power", covered it with his right hand and said, "This is white supremacy." Daniel Lee Christian, Greg's father, recalled Greg telling him of the paddling and of Foote's gestures and remarks about white power over black power. Foote denied all allegations of using racial slurs to students while disciplining them or otherwise. Material allegation 7 alleges that on May 13, 1977 Respondent paddled Joanne Williams with a leather strap, hitting her on her bottom and later on the front of her body as she turned; and that, during the paddling called her a nigger and made comments about welfare, free lunches and food stamps. Mrs. Simpson, Joanne's teacher, took Joanne to Foote for discipline because she had stolen money from another student, spent it and failed to repay the money as directed by Mrs. Simpson. Foote had her bend over a chair and paddled her with the leather strap. After the first blow, Mrs. Simpson testified Joanne turned over and Foote continued to strike her on the front portion of her body while appearing to lose control. During this time, Mrs. Simpson testified, he said Joanne's family was on food stamps, free lunches and had everything given to them and when not given, they stole. Exhibit 45 shows 4 licks awarded to Joanne by Foote. Foote denies making the remarks and Mrs. Branch, who was immediately outside the office, heard no such remarks made. Mrs. Simpson was upset following the incident and vowed never to take another child to Foote for discipline. However, on April 25, 1978, she sent one of her students, James Jackson, to Foote for discipline after Jackson had been paddled by her and continued his misconduct. Material Allegation 8 alleges that in the fall of 1977 Respondent paddled Bobby Clemons with a leather strap and, while so doing, called him a "no-good nigger". Nancy Gridley took Bobby Clemons to Foote for authority to discipline him for being a "smart-mouth". While talking to Bobby, a ten-year old black student whose mother is a teacher at Webster, Mrs. Gridley testified Foote became angry, picked up his strap and gave Bobby three licks while yelling that Bobby was a nigger who would end up in prison if he kept getting into trouble. Bobby confirmed that he was called a nigger by Foote and told he would end up in jail if his conduct didn't improve. Mrs. Clemons was told of the incident by Mrs. Gridley and when she asked Bobby about it, he confirmed the incident. All witnesses agreed that Bobby was a discipline problem. Respondent acknowledged the paddling, denied the racial slur and testified he told Bobby he needn't expect to get away with misbehavior because his mother was a teacher. Mrs. Branch confirmed Foote's testimony. Material Allegation 6 alleges that Respondent on February 22, 1978 paddled Jeannie Barnes, a fifth grade student, with a leather strap in the library in front of students. James Constable witnessed the paddling, which consisted of three blows with the leather strap. The paddling took place in the library which was serving as the temporary office while the old offices were being renovated. Constable's testimony that a class was being held in the library at the time constituted the only testimony that classes were held in the library. Respondent recalled no other student being present when this punishment was administered. Material Allegation 5 was that during February or March, 1978, Respondent paddled one of the Roper twins in the workroom of the library without an adult witness present, striking the student on the sides, back and legs. Mrs. Newell testified she came into the room while Respondent was paddling Landis Roper with a paddle. Landis was lying on the floor, Foote had hold of his wrist and blows were landing on back, legs and arm. She also testified that Roper was screaming his head off and threatening to kill himself if Foote didn't stop. As Mrs. Newell walked in, Mrs. Stevens and Mrs. Hodges were exiting the room. Mrs. Newell is the only witness to testify the other Roper twin was also present. Mrs. Newell took Landis outside after the paddling. Mrs. Stevens was in the library when Foote came in, got his paddle and paddled Roper. She was in the room while the paddling was going on but didn't watch. She was upset because so many licks (about 10) were given to a special education child. Mrs. Hodges did not testify that she was in the library at any time during the Roper incident. Both Respondent and Mrs. Branch recalled the paddling of Roper and that three licks were given. Landis had been reported for fighting in the cafeteria that morning by Mrs. Carter, whose glasses he had accidentally knocked off while swinging at his opponent. Mrs. Carter inquired later if Mr. Foote had seen Landis and was advised no. After lunch Foote sent for Landis, and after talking to him a short while started to paddle Roper. When several children appeared in the hall, Foote then took Roper into the workroom, leaving the door open while the paddling took place. Mrs. Branch testified no other child was present. Foote's testimony was that he gave Roper three licks with the paddle just inside the workroom door and that no other child was present. Material Allegation 4 alleges that on May 16, 1978 Respondent administered corporal punishment to Kenny Robertson with a leather strap without an adult witness present. Kenny Robertson testified that he was paddled with a leather strap by Foote for fighting, that nobody else was in the room, and that Mrs. Branch was at her desk just outside the door. Molly Jo Teters testified she was in outer office, did not see Mrs. Branch, but heard Foote yell at Kenny that he was not to pull girls off bars and to keep his shirt tucked in. Shortly after the last blow she walked by the door, saw Foote returning the strap to his desk and saw only Foote and Robertson. Mrs. Sellers had bus duty May 16, 1978 and saw a boy whose name she didn't know push a girl off the monkey bars. She took him to Foote and observed the paddling. Mrs. Branch testified that Mrs. Sellers brought Kenny Robertson to Foote because of some problem on the playground and that both she and Mrs. Sellers witnessed the paddling given Robertson. Mrs. Branch didn't see Mrs. Teters in the office at that time. Material Allegation 12 alleges that in May 1978 Respondent paddled Ronald Hise, using excessive force, in the lunchroom in front of second and third grade classes. Frances Simpson witnessed Foote paddle Ronnie Hise in the lunch room in May 1978 after a teacher had told Foote Ronnie was misbehaving in the lunch line. Foote picked up his paddle, pulled Ronnie out of the line and gave him three "hard" licks. Theresa Lee, another teacher, also witnessed the Hise paddling. Her version was that another teacher brought Ronald to Foote for discipline because he misbehaved in the lunch line and Foote paddled him there. She thought the blows "too severe" for the "very thin, pale child." Foote acknowledged that from time to time he has paddled children in the lunchroom because he found that this procedure often had a therapeutic effect in calming down a noisy lunchroom. Material Allegation 1 alleges that in May 1978 Herschell Bellamy seriously injured his eye during physical education in the afternoon, that his mother was notified and was coming to pick him up, but Respondent instructed he be put on the school bus to go home at the end of the day. Herschell Bellamy fell on the monkey bars near the end of his physical ed period and cut his eyelid. His P.E. teacher, James Constable, took him to his office, cleaned and bandaged the eye using a large eye patch. Constable then went to the office with Herschell, who remained there, got Herschell's folder and called the phone number there listed for emergencies, which phone belonged to the next-door neighbor. The neighbor advised that she would tell Herschell's mother to come for him. The neighbor later called back to the school office to advise that Herschell's mother was enroute to pick him up. James Constable, Patricia Newell, and Dorothy Stevens all testified that shortly before time for the buses to leave they were in the office with Herschell Bellamy and Foote, from his inner office, asked what the commotion was about. Someone advised him that Bellamy had hurt his eye. Foote then asked if he was white or black and when told Herschell was black, said "Put him on the bus". Foote's testimony, corroborated by Mrs. Branch, was that he returned to school from a meeting in the county office just at the bell was ringing to end the school day. As he entered the building he passed a lady taking a small boy with a bandage over his eye out of the building. He denied making any comment regarding Herschell's race. Herschell and his mother both testified. When Herschell fell on the monkey bar and hurt his eye, Coach Constable put a bandage on it and took him to the office where he waited a long time before his mother came to pick him up. He didn't hear Mr. Foote say anything but testified Foote was in the office when his mother came to pick him up. Herschell's mother testified she came to school in response to the message that her son had been hurt and that she arrived just as the children were about ready to get on the bus to go home. She saw Foote, but he said nothing to her or look at Herschell. She took Herschell to Dr. Wiley, who treated Herschell for a lacerated upper eyelid, a minor injury. Wayne Ham, a supervisor in the Sumter County school system, acknowledged that he had received complaints from Mrs. Simpson, Mrs. Jones and Mrs. Teter regarding Foote's use of the leather strap to discipline children. They considered use of the strap constituted too severe punishment. Ham doesn't recall if he passed these complaints to his superior. He denied telling Mrs. Teter not to show to anyone a written complaint she had prepared. Bernard Shelnutt, the other Sumter County supervisor, who functions similar to Ham, had never heard a complaint against Foote of brutality, failure to get medical attention for children, or use of racial slurs. In addition to denying the allegations preferred against him, Respondent presented numerous witnesses who testified to Foote's good reputation in the community, to their satisfaction with the job Foote was doing as principal, to Foote's administrative capabilities, and to lack of knowledge of any irregularities at Webster until the charges here considered were published in the newspaper. Two principals of Orange County schools, for whom Respondent had worked before coming to Webster, attested to his capability and competence as well as to their conclusion that the job of principal is the most difficult in the field of education. The principal is the one primarily responsible for the discipline in the school and the manner in which punishment is administered. Corporal punishment policy is usually left to the sound judgment of the principal at each school, subject however to statutory restrictions, and prescribed school board policies. None of the four elected Sumter County school board members who testified on behalf of Respondent had ever received any complaints against Respondent, prior to the investigation by the PPC, involving medical neglect, severe punishment or racial slurs, nor had complaints been received from the black community. They considered Respondent a good administrator with a good reputation. The only complaints they had received involved minor administrative matters such as school bus schedules, and teacher complaints that Respondent worked them too hard. Several witnesses for Petitioner admitted that they were not happy with Respondent's requirement that all teachers attend PTA meetings unless they had a good excuse for being unable to do so. Eighteen teachers, former teachers, substitute teachers, and speech clinician called by Respondent had never seen or heard Respondent medically neglect, abuse, or use racial slurs to students at Webster. Most, if not all of these witnesses, had never hear of the complaints against Respondent before reading them in the newspapers shortly before the fir trial. The chiefs of police of Webster and Center Hill attested to Respondent's good reputation in their communities and that they had never received a complaint that Respondent had abused a student. Five parents whose children now attend or had attended Webster testified that Respondent had provided proper treatment to their children, their children had never complained of medical or physical mistreatment or abuse by Respondent, and that when children had been neglected by other teachers a call to Respondent corrected the situation. Two employees, other than Mrs. Branch, who had worked at Webster for many years had never seen or heard Respondent medically neglect, physically abuse, or direct racial slurs towards children at Webster. They first became aware of complaints when they read in the news that charges had been preferred against Respondent. No direct testimony was presented that the misconduct here alleged to have been committed by Respondent seriously reduced his effectiveness in the school system. It is perhaps significant that approximately one week in May 1978 (May 8- 16) provided one-third of the twelve material allegations preferred against Respondent. Coincidentally, Respondent's letter recommending James Constable for dismissal was dated 8 May 1978 and the letter to the PPC signed by eleven teachers was dated May 15, 1978. It is further noted that two of the material allegations involve incidents occurring 6 or 7 years ago.
The Issue In DOAH Case No. 97-5828, the issue is whether the Respondent committed the violations alleged in the Amended Administrative Complaint dated March 24, 1998, and, if so, the penalty which should be imposed. In DOAH Case No. 98-2387, the issue is whether the Respondent committed the violations alleged in the Notice of Specific Charges dated July 30, 1998, and, if so, whether he should be dismissed from employment with the Miami-Dade County School Board.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board of Miami-Dade County, Florida, is the entity authorized to operate the public schools in the county and to "provide for the appointment, compensation, promotion, suspension, and dismissal of employees" of the school district. Section 4(b), Article IX, Florida Constitution; Section 230.23(4) and (5), Florida Statutes (1997). The Department of Education is the state agency responsible for investigating and prosecuting complaints against teachers holding Florida teachers' certificates for violations of Section 231.28, Florida Statutes. Section 231.262, Florida Statutes. Pursuant to Sections 231.261(7)(b) and 231.28(1), Florida Statutes, the Educational Practices Commission is the entity responsible for imposing discipline for any of the violations set forth in Section 231.28(1). Richard V. Powell holds Florida Educator's Certificate No. 585010, which covers the subjects of journalism and English- as-a-Second-Language ("ESOL"). His teacher's certificate has an expiration date of June 30, 1999. Mr. Powell was first employed as a teacher with the Miami-Dade County public school system in August 1985. From 1989 through August 1996, Mr. Powell was assigned to Jose Marti Middle School as an ESOL teacher; in August 1996, he was assigned to John F. Kennedy Middle School ("JFK Middle School") as an ESOL teacher; in August 1997, he was given a new assignment as the facilitator of JFK Middle School's School Center for Special Instruction. On November 26, 1997, Mr. Powell was temporarily assigned to the Region II office. At all times material to this proceeding, Mr. Powell was employed by the School Board under a professional service contract. November 1995 incident On the evening of November 19, 1995, at around 10:00 or 10:30 p.m., Mr. Powell was driving his Ford Bronco on Pembroke Road in Broward County, Florida. Mr. Powell's fourteen-year-old son was sitting in the front passenger seat, and he and his father began arguing about his school behavior and progress and about his failure to do his chores around the house. Mr. Powell became angry and punched his son in the mouth with his fist and then pulled the Bronco off the street, into a vacant lot. Mr. Powell got out of the Bronco, walked around the back of the vehicle to the door on the passenger's side, opened the door, and pulled his son out of the vehicle. After the child was outside the vehicle, Mr. Powell punched his son once in the face and, when the child fell to the ground, Mr. Powell kicked him at least once in the ribs. 8/ The child broke away and ran to a convenience store about twenty-five yards from the vacant lot, where a witness to the incident had already called the police. When he arrived at the convenience store, the child was sobbing and holding his side; blood was pouring from his lip. 9/ After the altercation with his son, Mr. Powell was not feeling well and, believing that his son had run the short distance to his home, Mr. Powell drove home. He waited a few minutes for his son and then walked from his home to Pembroke Road. He saw his son, a police car, and an ambulance at the convenience store, and he walked up to the police officers and identified himself as the child's father. Mr. Powell's son was taken to the hospital and treated and released with a split lip and a bruise in the area of his ribs. Mr. Powell was taken to the Pembroke Pines, Florida, police station. Mr. Powell is a diabetic, and, while he was at the police station, he asked to be examined by a doctor because he did not feel well. He was taken to the hospital, where he remained for about an hour. After his release from the hospital, Mr. Powell was arrested and charged with child abuse. On July 29, 1996, after a bench trial on child abuse charges, the court found Mr. Powell guilty but withheld adjudication, sentenced him to six months' probation, and required him to complete a parent counseling course. 10/ Mr. Powell successfully completed the course in December 1996 and was released early from probation on January 8, 1997. In August 1996, Mr. Powell was transferred from Jose Marti Middle School to JFK Middle School, where Raymond Fontana was principal. In a letter dated August 1, 1996, Seth A. Levine, an assistant state attorney in Broward County, Florida, notified the superintendent of the Miami-Dade County public school system that Mr. Powell had been tried on the charge of child abuse, and he advised the superintendent of the resolution of the case. The letter was forwarded to James E. Monroe, who was at the time an Executive Director in the School Board's Office of Professional Standards, who reviewed the letter and transmitted the information contained therein to Mr. Fontana at JFK Middle School and to the state Department of Education Educational Practices Services. Mr. Monroe was not aware of the November 1995 incident involving Mr. Powell and his son until on or about August 14, 1996, when he received the copy of Mr. Levine's letter. In a letter dated October 10, 1996, the Education Practices Services notified Mr. Powell that it had received a complaint against him related to the charges of child abuse, and an investigation was begun which led to the filing of the original Administrative Complaint dated January 21, 1997. The disciplinary action taken against Mr. Powell by the School Board with respect to the child abuse charges consisted of a Site Disposition in the case, which the School Board referred to as Case No. A-17734. In a memorandum to Mr. Powell dated October 15, 1996, Mr. Fontana summarized the substance of a conference which was held on October 15, 1996, with Mr. Powell, Mr. Fontana, and William McCard, an assistant principal at JFK Middle School, in attendance. In the memorandum, Mr. Fontana indicated that "[t]he purpose of the conference was to establish a final disposition through administrative review of the above indicated case." Mr. Fontana further stated: Upon review of all the records and talking with you, it is determined that the incident in question happened in Broward County, no adjudication of guilt was established, and legally the case was closed. However, you have agreed to counseling in order to forestall any future problems. The case in question dealt with your own family member and alleged child abuse. We reviewed my expectations of you in regards to your teaching position at John F. Kennedy Middle School and your professional treatment of all your students. We reviewed the State Code of Ethics guidelines dealing with the same subject. Thus, I am directing you to follow the established State Code of Ethics Rules, School Board Policy, and Site Rules dealing with conduct becoming a teacher and subsequent teaching relationships with students. I feel that this will adequately bring closure to this incident and that in the future your teaching behavior will always be of the highest professional standard. In his annual evaluation for the 1995-1996 school year, Mr. Powell was rated "acceptable" in both classroom performance and in professional responsibility, and he was recommended for continued employment. Likewise, in his annual evaluation for the 1996-1997 school year, Mr. Powell was assessed "acceptable" in both classroom performance and in professional responsibility, and he was recommended for continued employment. This annual evaluation followed a Teacher Assessment and Development System Post-Observation Report completed on April 16, 1997, by Mr. McCard, in which he found that Mr. Powell's performance satisfied every indicator subject to evaluation. 11/ November 1997 incident On November 25, 1997, Mr. Powell was the teacher in charge of the School Center for Special Instruction ("SCSI") at JFK Middle School. The SCSI is an indoor suspension program for children who are being disciplined for behavior violations; SCSI is an alternative to sending these children home for the duration of their suspension. The SCSI class was held in the school cafeteria at JFK Middle School from 9:00 a.m. until the end of the school day at 3:40 p.m. Two sets of double doors provide access to the cafeteria. One set, those on the right, were locked from the outside and not normally used; the students entered and left the cafeteria by the set of doors on the left of the building. At approximately 3:20 p.m. on November 25, 1997, the SCSI students were returning to the cafeteria after cleaning up an area outside the cafeteria. Mr. Powell was outside supervising the students as they returned to the cafeteria, and there was no adult supervising the students who had already moved inside the cafeteria. During this hiatus, a seventh-grade student named M. M. got into an altercation with several other boys in the class whom he suspected of taking his book bag. The boys began pushing and shoving M. M. and encouraging him to fight with one specific boy. M. M. refused to fight; he became angry and upset and left the cafeteria by way of the set of double doors on the right side of the cafeteria. Because he was angry and upset, M. M. pushed the door open quite forcefully. Mr. Powell had had surgery on his right foot the previous day; his foot was in a cast, and he used a cane to assist him in walking. At the time M. M. pushed open the cafeteria door, Mr. Powell was standing outside directly in the path of the door as it opened. M. M. could not see Mr. Powell because there were no windows in the door. As it swung open, the door hit Mr. Powell's injured foot, and Mr. Powell raised his cane and struck M. M. on his right arm. 12/ M. M. ran back inside the cafeteria, in tears. He rushed through the cafeteria and exited through the set of doors on the left side of the cafeteria. He went directly to the office of Sandra Clarke, one of the guidance counselors at JFK Middle School. When he arrived at her office, M. M. was agitated and crying, and he told Ms. Clarke that Mr. Powell had hit him on the arm with his cane. M. M. showed Ms. Clarke the mark on his arm, which was located on the outside of his right arm, midway between his shoulder and his elbow. Ms. Clarke observed that M. M. had a red welt on his arm, and she took him to the office of Patrick Snay, who was at that time the principal of JFK Middle School. Mr. Snay called in Assistant Principal McCard and told him about the allegations M. M. had made against Mr. Powell. Mr. Snay directed Mr. McCard to call the school police and to take statements from the students in the class who witnessed the incident. Mr. McCard took a statement from M. M. and observed the red mark on his arm. A school security guard went into the SCSI class right before school ended for the day and asked that any students who had seen the incident involving Mr. Powell and M. M. stay after school and write a statement telling what they had seen. Several students remained and prepared statements. 13/ Mr. Powell reported for school the next morning but was told to report to the School Board's Region 2 office. Mr. Powell worked at that office for one day, and then, beginning on the Monday after Thanksgiving, he was assigned to work at Highland Oaks Middle School. He worked at that school until he was suspended by the School Board on May 13, 1998. His duties at Highland Oaks Middle School included taking care of disabled students, accompanying them to their classes and to lunch, sitting with them, and taking notes for them, all under the direct supervision of the school's media specialist. At the direction of James Monroe, who was at the time an Executive Director in the School Board's Office of Professional Practices, a personnel investigation was initiated on December 6, 1997, with respect to M. M.'s allegations against Mr. Powell. A preliminary personnel investigation report was submitted on February 13, 1998, in which the investigator concluded that the charge against Mr. Powell was substantiated. A Conference-for-the-Record was held on March 25, 1998, attended by Mr. Snay; John F. Gilbert, Director of Region 2; Ms. Falco, Mr. Powell's union representative; Dr. Monroe; and Mr. Powell. Several issues were discussed during the conference: Mr. Powell was allowed to review a copy of the School Board's investigative report regarding the incident involving M. M., and he was allowed to comment on the report. Mr. Powell denied having hit M. M. and advised the School Board personnel that he knew of an eye witness to the incident who would support his denial. Mr. Powell was also allowed to review a copy of the October 15, 1996, memo to Mr. Powell from Principal Fontana, discussed in paragraph 16, supra, memorializing the discipline imposed with respect to the charges that Mr. Powell had committed child abuse on his son. Dr. Monroe advised Mr. Powell that he had failed to comply with the directives included in that disposition. /14 During the Conference-for-the-Record, Mr. Powell was told that a recommendation would be made to the School Board that his professional services contract not be renewed and that a decision would be made whether to take disciplinary measures against him, which could include suspension or dismissal. In a letter dated April 29, 1998, the Superintendent of Schools recommended to the School Board that Mr. Powell be suspended from his position as a teacher and that dismissal proceedings be initiated against him. The School Board accepted this recommendation on May 13, 1998. On October 29, 1998, Mr. Powell was tried by a jury on the criminal charge of battery arising out of his striking M. M. A number of students testified at the trial, and Mr. Powell was found "not guilty" of the charge. On September 5, 1997, Mr. Powell was honored by the Florida House of Representatives with a Certificate of Appreciation for "his contributions and accomplishments in the National Association of Black Scuba Divers." As a member of that association, Mr. Powell was recognized and commended for his work with the sunken slave ship Henrietta Marie and for his lectures and seminars on the history of this ship. On May 28, 1998, an article about the Certificate of Appreciation appeared in The Miami Times, together with a picture of Mr. Powell and Representative Larcenia Bullard. Nowhere in the certificate or in the news article is Mr. Powell identified as a teacher or former teacher in the Miami-Dade County public schools. Mr. Powell is mentioned and quoted in an article which was published in the South Florida edition of the Sunday Sun Sentinel newspaper on February 1, 1998. The article discussed the celebration of Black History Month by the descendants of slaves who are living in South Florida. Mr. Powell is identified in the article as the person who led members of the National Association of Black Scuba Divers in a dive to the site of the Henrietta Marie. Mr. Powell also gave a lecture on the Henrietta Marie in February 1997 at the Miami-Dade County Community College, as part of a special African-American history course. Summary The evidence presented herein clearly and convincingly establishes that Mr. Powell struck and kicked his son on November 19, 1995, and that he struck M. M. with his cane on November 25, 1997, while carrying out his duties as an SCSI teacher. Mr. Powell's testimony that he did not strike either his son or M. M. is rejected as not persuasive, as is the testimony of those witnesses who testified that Mr. Powell did not strike M. M. The evidence presented is sufficient to establish that Mr. Powell committed an act of gross immorality and of moral turpitude when he dragged his fourteen-year-old son from the passenger seat of his Ford Bronco, struck his son in the face twice, and kicked his son in the ribs at least once, causing him to suffer a split lip and bruised ribs. This act of violence is not only inconsistent with the public conscience, it is an act of serious misconduct which was in flagrant disregard of society's condemnation of violence against children. The seriousness of Mr. Powell's act is only exacerbated by the fact that he acted in anger. Although the evidence establishes that Mr. Powell committed an act of gross immorality, the only evidence offered regarding any notoriety arising from the November 1995 incident and from Mr. Powell's subsequent trial on the charges of child abuse is the testimony of Dr. Monroe. Dr. Monroe's testimony that there "was considerable notoriety via the print and the electronic media of Mr. Powell's action which resulted in his arrest" was not based on his personal knowledge but was based on information he received in August 1996 from an assistant state's attorney in Broward County. Dr. Monroe's testimony is not only hearsay unsupported by any other evidence in the record, it is not credible to prove that Mr. Powell's conduct was sufficiently notorious to cast him or the education profession into public disgrace or disrespect or to impair Mr. Powell's service in the community. Moreover, Mr. Powell presented evidence that, subsequent to the November 1995 incident, he was publicly recognized for his contributions to the community through his work with the slave ship Henrietta Marie. The evidence presented is also sufficient to establish that Mr. Powell committed an act of gross immorality and of moral turpitude with respect to the November 1997 incident involving M. M. When Mr. Powell lashed out at this student and struck him with a cane, albeit after the student pushed a door into his injured foot, he demonstrated a flagrant disregard of public morals and of society's condemnation of violence against children, and he committed an act that betrayed the special trust placed in teachers. However, there was no persuasive evidence presented to establish that Mr. Powell's conduct involving M. M. was sufficiently notorious to expose either Mr. Powell or the education profession to public disgrace or disrespect or that Mr. Powell's service in the community was impaired with respect to the November 1997 incident. The most the evidence demonstrates is that the school received inquiries from parents about the need for their children to give statements regarding the incident, but these inquiries do not rise to the level of notoriety. Furthermore, it would be inappropriate to infer notoriety and public disgrace and disrespect from the fact that Mr. Powell was tried and found not guilty of the charge of battery on M. M. The evidence presented is sufficient to establish that, with respect to the November 1997 incident in which Mr. Powell struck M. M. with his cane, Mr. Powell violated several provisions of the Code of Ethics of the Education Profession and of the Principles of Professional Conduct for the Education Profession in Florida because he did not exercise professional judgment; because he inflicted physical injury on M. M. rather than protecting him from such injury; and because he exposed M. M. to unnecessary embarrassment by striking him and causing him to cry in front of his fellow students in the SCSI class. There was, however, no persuasive direct evidence presented to establish that Mr. Powell's effectiveness as a teacher and an employee of the School Board was diminished as a result of the November 1997 incident. This direct evidence consisted solely of the opinion testimony of Dr. Monroe, which was conclusory and was based exclusively on information he obtained from Mr. Powell's records and from discussions with school administrative personnel charged with monitoring Mr. Powell's conduct and teaching performance. No parents or students or members of the community testified that Mr. Powell's effectiveness as a teacher and as an employee of the School Board was diminished as a result of this incident. Under the circumstances of this case, however, it can be inferred from the record as a whole that Mr. Powell's effectiveness as a School Board employee and as a teacher was seriously diminished as a result of the November 1997 incident. Mr. Powell stuck a student with a cane during school hours, and the incident was witnessed by a number of students, who were asked to testify both in this proceeding and in Mr. Powell's criminal trial. In addition, the allegations against Mr. Powell with respect to the November 1997 incident were of such a serious nature that it was necessary to relieve Mr. Powell of his teaching responsibilities and to transfer him from JFK Middle School to the Region 2 administrative offices and, from there, to another middle school in which his contact with students was closely supervised. Finally, the evidence presented is sufficient to establish that, with respect to the November 1997 incident in which he struck M. M. with his cane, Mr. Powell did not conduct himself in a manner which reflected credit on himself or on the school system, nor did his conduct conform to the highest professional standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that In DOAH Case NO. 97-5828, the Education Practices Commission enter a final order finding Richard V. Powell guilty of violating Section 231.28(1)(c) and (i), Florida Statutes, and revoking his teacher's certificate for a period of two years, followed by three years' probation, subject to reasonable conditions to be determined by the Commission; and In DOAH Case No. 98-2387, the School Board of Miami-Dade County, Florida, enter a final order finding Richard V. Powell guilty of misconduct in office pursuant to Section 231.36(1)(a) and (6)(a), Florida Statutes, and of violating School Board Rules 6Gx13-4A-1.21 and 6Gx13-4-1.08 and 4-1.09; sustaining his suspension; and dismissing him from employment as a teacher with the Miami-Dade County Public Schools. DONE AND ENTERED this 11th day of October, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1999.
The Issue The issue is whether Petitioner has just cause to terminate the employment of Respondent, a Behavior Management Teacher (BMT), due to Respondent's inappropriate interaction with a student on April 16, 2014, as alleged in the Amended Notice of Specific Charges.
Findings Of Fact Petitioner is a duly-constituted school board charged with the duty of operating, controlling, and supervising all free public schools within Miami-Dade County, Florida, pursuant to article IX, section 4(b), Florida Constitution, and section 1001.32, Florida Statutes. At all times material hereto, Respondent was employed as a BMT at Allapattah Middle School (Allapattah), a public school in Miami-Dade County, Florida. Respondent has been employed by the School Board for approximately 14 years pursuant to a professional service contract and subject to Florida Statutes, the regulations issued by the Florida State Board of Education, the policies and procedures of the School Board, and the provisions of the collective bargaining agreement in effect between Miami-Dade Public Schools and United Teachers of Dade (UTD contract). During his employment with the school district, Respondent took a break from teaching to attend divinity school. He became a permanent teacher in 2007 and worked in Miami Senior High School. Respondent transferred to Allapattah in 2011 at the request of its assistant principal. During the 2011-2012 school year, Respondent served as a SPED reading, language arts, and math teacher. During the 2012-2013 school year, Respondent held dual roles as the SPED Chair and a SPED teacher. In November 2013, Respondent was offered and accepted the position of BMT at Allapattah. The BMT is considered the "first in line" to deal with a student who causes a disturbance in the classroom by behavior such as cursing or fighting. If called by a teacher to assist or a BMT observes a student acting out in such a way as to disrupt a classroom, the BMT intervenes to try and get both sides of the story regarding why the student is upset and tries to redirect or modify the student's behavior so that the student can remain in the classroom. If that is unsuccessful, the BMT removes the student to a special education classroom where the BMT uses other techniques, such as discussing respect, to calm the student. The BMT may also recommend an in- school or out-of-school suspension. Respondent was in a graduate program for guidance counseling when offered the BMT position. He accepted the position because he felt the BMT role would help him better understand the student population with emotional/behavioral disorders (EBDs). As the BMT, Respondent was assigned 30 students with severe behavioral issues. Respondent also continued some duties of the SPED Chair position until February 2014. Respondent received uniformly satisfactory performance evaluations throughout his teaching career with Petitioner. He was not previously counseled or disciplined for any reason. On April 16, 2014, Towanda Seabrook, the SPED Chairperson, entered a seventh-grade classroom for observation and saw two students being disruptive. N.H. was cursing the classroom teacher, and D.J. was talking with other students. Ms. Seabrook directed these students to leave the classroom and go with her to the SPED office/classroom. The SPED office/classroom is in Allapattah's classroom 1165. It is a large room with several work stations and a conference table that are used by the EBD counselors, teachers, and the BMT. Attached and opening into the SPED office/classroom are the offices of the SPED Chairperson and EBD counselors. After going with Ms. Seabrook to the SPED classroom, N.H. directed his profanity and ranting at Ms. Seabrook calling her a "motherfucker," "whore," and "bitch" and repeatedly saying "fuck you" to her. Ms. Seabrook attempted to defuse the situation by explaining that she is a mother and asking N.H. how would he like it if someone said these types of graphic things to his mother. Ms. Seabrook chose not to go "toe to toe" with N.H. because she was aware that his exceptionality, EBD, causes him to be unable to control his emotions and temper. N.H. is known to curse and use profanity directed at teachers. Despite N.H.'s continued use of graphic language, Ms. Seabrook felt she had the situation under control and attempted to complete some SPED paperwork. Respondent entered the classroom and heard N.H.'s barrage of profanity and aggression directed at Ms. Seabrook. Respondent was familiar with N.H. due to N.H.'s history of being disrespectful to teachers, running out of class, name calling, defiance, and fighting. Respondent worked with N.H. on an almost daily basis attempting to help N.H. stay in school and modify his behavior to facilitate learning. Respondent described N.H. as one of the most difficult students with whom he was assigned to work. Because the BMT is supposed to be the first line of response to a belligerent and disruptive EBD student, Respondent immediately tried to diffuse the situation by reasoning with N.H. N.H. proceeded to call Respondent (an African-American male) "Nigger," "Ho" (whore), "pussy," "punk," and repeatedly said "fuck you." This tirade by N.H. went on for almost 45 minutes. During this time, N.H. and D.J. sat at the conference table in the classroom. Throughout the 2013-2014 school year, Respondent had tried numerous strategies to assist N.H. in controlling his behavior and temper at school-–all with no success. On April 16, 2014, after listening to N.H. verbally abuse Ms. Seabrook and himself, Respondent decided to use an unorthodox strategy to get N.H. to understand the gravity of his words and to calm down. Respondent asked N.H. if he knew what "fucking" means. N.H. responded "a dick inside a pussy." Respondent replied, "A dick inside a pussy? Maybe if you were fucking you wouldn't behave this way," implying that if N.H. was having sex, perhaps he would be better able to control his emotions at school. Ms. Seabrook overheard this portion of the conversation and it made her uncomfortable so she left the room. She believed this method used by Respondent was inappropriate and not likely to be successful, and she intended to talk to Respondent about it before advising the principal. Notably, Ms. Seabrook did not feel the need to intervene or immediately report the conversation and testified that in response to N.H.'s provocation, she may also have said "fuck you" back to N.H. This graphic discussion was also overheard by Deborah Phillips, an EBD counselor, who was in an adjacent office with the door open. After N.H. called Respondent a "pussy," Respondent asked N.H. if he knew what one was, had ever seen one or knew what to do with one. Ms. Phillips did not intervene or report the conversation. According to Ms. Phillips, this extremely graphic and profane interaction between N.H. and Respondent was only a minute or two. Ms. Phillips testified that she would not go toe to toe with N.H. because she believed it would only elevate the behavior. While Respondent and N.H. were arguing, and Respondent asked N.H. to define the words he was using, D.J. used his cell phone to video and audio record approximately 25 seconds of the conversation. In the recording, Respondent is heard telling N.H. to spell "Ho." N.H. answered "hoe," and Respondent stated, "yea nigga-–that's what I thought." During the brief recording, D.J. is heard laughing in the background. The conversation had the desired effect. N.H. started laughing and immediately calmed down. Respondent was able to escort N.H. to the principal's office where it was decided that N.H. would not be suspended, but rather Respondent would drive N.H. home. During the ride home, N.H. was calm and there were no further incidents or inappropriate discussions. The following school day, D.J.'s mother brought the recording to the attention of the principal who initiated an investigation. Respondent immediately expressed remorse and regret that he used this unconventional method of defusing N.H.'s anger. Respondent admitted participating in the graphic dialogue and acknowledged that it was inappropriate. As a result of the investigation, Respondent was suspended effective June 19, 2014, without pay and recommended for termination from employment. Findings of Ultimate Fact As discussed in greater detail below, Petitioner proved Respondent violated School Board Policy 3210, Standards of Ethical Conduct, but failed to demonstrate by a preponderance of the evidence that Respondent committed any of the other charged offenses.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a final order: (1) finding that just cause does not exist to terminate Respondent's employment; and (2) imposing punishment consisting of suspension without pay from employment through the end of the first semester of the 2014-2015 school year for violation of School Board Policy 3210 that does not amount to misconduct in office. DONE AND ENTERED this 20th day of November, 2014, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 20th day of November, 2014.
The Issue Whether Respondent engaged in the conduct (to: wit: "conduct unbecoming a School Board employee" and "misconduct in office") alleged in the Notice of Specific Charges? If so, whether such conduct provides the School Board of Dade County, Florida, just or proper cause to take disciplinary action against him? If so, what specific disciplinary action should be taken?
Findings Of Fact Based upon the evidence received at the formal hearing in this case, and the record as a whole, the following Findings of Fact are made: The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Dade County, Florida. Respondent is now, and was at all times material to the instant case, an employee of the School Board occupying a school monitor position. He currently is under suspension as a result of the incident described in the Notice of Specific Charges. Other than this suspension, he has had no formal disciplinary action taken against him during the period of his employment with the School Board. 1/ Respondent's employment with the School Board began on March 10, 1993, when he was hired to fill an hourly school monitor position at John F. Kennedy Middle School (JFK). At the beginning of the 1993-1994 school year, Respondent became a full-time school monitor at JFK. He remained in that position until he was administratively reassigned in March of 1995, following the incident which led to the initiation of the instant disciplinary proceeding. As a school monitor, Respondent is a member of a collective bargaining unit represented by the United Teachers of Dade (UTD) and covered by a collective bargaining agreement between the School Board and UTD, effective July 1, 1994, through June 30, 1997 (UTD Contract). Article V of the UTD Contract addresses the subject of a "employer rights." Section 1 of Article V provides, in part, that the School Board has the exclusive right to suspend, dismiss or terminate employees "for just cause." Article VIII of the UTD Contract addresses the subject of a "safe learning environment." Section 1, paragraph A, of Article VIII provides as follows: A safe and orderly learning environment is a major priority of the parties. Such an environment requires that disruptive behavior be dealt with safely, fairly, consistently and in a manner which incorporates progressive disciplinary measures specified in the Code of Student Conduct. Section 1, paragraph D, of Article VIII provides, in part, as follows: The parties recognize the potential for difficult circumstances and problems related to the use of corporal punishment. Accord- ingly, the parties agree that such punishment shall be prohibited as a disciplinary option, and further agree to act affirmatively in continuing to identify and implement more effective alternatives for dealing with student behavior. Article XXI of the UTD Contract addresses the subject of "employee rights and due process." Section 1, paragraph B, of Article XXI provides, in part, that "[d]ismissals and suspensions shall be effected in accordance with applicable Florida statutes, including the Administrative Procedures Act (APA)." Section 3, paragraph D, of Article XXI provides that educational support personnel who have completed their probationary period may be dismissed for just cause, which includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality and/or conviction of a crime involving moral tur- pitude. Such charges are defined, as appli- cable, in State Board Rule 6B-4.009. Section 3, paragraph F, of Article XXI provides, in part, that such an educational support employee is entitled to an appeal hearing on the Superintendent's recommendation that he or she be terminated and is further entitled to be served by the School Board with a Notice of Specific Charges prior to the hearing. Valerie Carrier is now, and was at all times material to the instant case, the principal of JFK. As principal, Carrier is responsible for the overall operation of the school. It is her obligation to take the necessary measures to maintain a safe environment for the school's students. There is a security staff at the school, comprised of school monitors, that assists Carrier in carrying out this responsibility. According to their job description, the school monitors on the school's security staff have the following "basic objectives" and "job tasks/responsibilities:" BASIC OBJECTIVES Under general direction from the school principal, he/she performs duties to monitor student activity in promoting and maintaining a safe learning environment and insures that appropriate standards of conduct are followed. JOB TASKS/RESPONSIBILITIES Visually observes student behavior during school hours, on school property. Reports serious disturbances to the school admini- stration and resolves minor altercations. Physically patrols all school buildings, grounds, and determines reason for the pre- sence of outsiders. Stops and questions all students not in class during class time. Monitors parking lots and student gathering areas (before, during and after school hours). Reports any safety or security problems to the administration. Performs any other duties set by the school principal or his/her designee. Carrier assigns each school monitor a post at which the monitor performs these job duties. If a monitor observes, from his or her post, a student engaging in inappropriate behavior, the monitor may attempt to verbally redirect the student, but the monitor is not permitted to impose consequences for the student's behavior. Each monitor is issued a hand-held radio to be used for communicating with other school personnel. If a misbehaving student fails to comply with a monitor's verbal instructions, the monitor is required to use the hand-held radio to advise an administrator of the situation. Joshua Cummings was a student at JFK during the 1994-95 school year. He frequently engaged in inappropriate behavior. Carrier gave the members of her staff, including Respondent, special instructions regarding how they should respond to acts of inappropriate behavior on Joshua's part. 2/ She told them that they should report any such acts directly to her or, in her absence, her designee. On March 17, 1995, during the first lunch period, Respondent was assigned to a post on the entrance courtyard side of the chain link double-gate that separates the entrance courtyard from the cafeteria spill-out area. The cafeteria spill-out area is, as its name suggests, an area outside the cafeteria where students gather after eating lunch and wait for their lunch period to end. There is a school monitor posted in the cafeteria spill-out area near the door that students use to exit the cafeteria and enter the spill-out area. Another school monitor is stationed on the other side of the exit door inside the cafeteria. Pursuant to the standard operating procedure at the school, the chain link double-gate between the entrance courtyard and the cafeteria spill-out area remains closed and locked until the end of the lunch period, when the students are picked up by their teacher. At the teacher's request, the school monitor manning the post on the entrance courtyard side of the double-gate unlocks (with a key) and then opens the double-gate 3/ and lets the students waiting in the cafeteria spill-out area go into the entrance courtyard to meet their teacher. If it becomes necessary for a student in the spill-out area to use the restroom before the end of the lunch period, the student must reenter the cafeteria, obtain a pass from an administrator 4/ and then leave the cafeteria through the cafeteria's main entrance. Students are not permitted to use the double-gate to exit the spill- out area before the end of the lunch period. On March 17, 1995, Joshua Cummings had lunch during the first lunch period (which began at approximately 11:30 a.m. and lasted approximately 30 minutes). Jean LaDouceur and Dorys Cadet were among the other students who had lunch during the first lunch period on March 17, 1995. Approximately 100 or more of these students, including Joshua, Jean and Dorys, were in the cafeteria spill-out area, prior to the end of the first lunch period on this date, when Joshua started shaking the chain-link double- gate and yelling at Respondent to unlock and open the gate so that he (Joshua) could go to the restroom (which was located off the entrance courtyard near the gate). Respondent was in the area of his assigned post in the entrance courtyard sitting on the steps leading to the school auditorium. He got up and, as he walked toward the double-gate, he told Joshua that Joshua had to wait until the end of the period if he wanted to exit the spill-out area through the double-gate. Joshua apparently did not want to wait. He continued to shake the double-gate and shout obscenities at Respondent. Respondent responded in an unseemly and inappropriate manner that evinced a reckless disregard for the safety of Joshua and the other students in the spill-out area who were around him. Instead of continuing his efforts to verbally redirect Joshua or radioing for assistance, Respondent, from his position on the courtyard side of the double-gate, responded to Joshua's misbehavior by angrily hurling his hand-held radio (which had a battery pack attached to it) at the gate near where Joshua (who was on the spill-out area side of the gate) was standing. The radio hit the gate and shattered. Jean and Dorys were sitting on a picnic table in the spill-out area approximately twenty feet from the double-gate. There were several other students on or near the table with whom Jean and Dorys were conversing. The battery pack that had been attached to Respondent's hand-held radio before Respondent threw the radio at the gate wound up striking Jean on the right side of his forehead while he was sitting on the picnic table. (It apparently travelled through a space in the center of the gate.) Jean started bleeding. Accompanied by Dorys, Jean went to see Carrier to report what had happened. (To get to Carrier's office, which is off the entrance courtyard, approximately 20 feet from the double gate, they had to reenter the cafeteria because the double-gate was still locked.) Joshua also went to see Carrier. (He had been "nick[ed]" by a piece of Respondent's shattered radio.) After speaking with Jean and Joshua, Carrier called fire rescue. Fire rescue subsequently arrived on the scene and treated Jean's wound. Jean was advised by the paramedic who treated him to have a physician close the wound with stitches. Jean, however, did not seek further medical attention. (The wound eventually healed, but Jean has a small scar on the right side of his forehead as a result of his injury.) Carrier also called Jean's and Joshua's parents. After Jean's and Joshua's parents arrived at school, Carrier met with Respondent to discuss the incident. Respondent told Carrier what had happened. He went with Carrier to the entrance courtyard where he had been stationed and described how and where he had thrown his hand-held radio. Carrier picked up the pieces of Respondent's hand-held radio that were lying on the ground near the double-gate. Respondent also freely and voluntarily, at Carrier's request, prepared a written statement on the day of the incident in which he admitted that earlier that day, at about 11:53 a.m., in response to Joshua's yelling and kicking the double-gate, he had thrown his radio at the gate and that "parts of the radio [had gone] thr[ough] the gate and nick[ed Joshua]." After hearing the students' and Respondent's accounts of the incident, Carrier had legitimate concerns regarding Respondent's ability to effectively carry out his responsibilities as a school monitor. Respondent's conduct had jeopardized the health, safety and well-being of the very individuals it was his job, as a school monitor, to protect. Following the completion of an investigation of the incident, the School Board's Superintendent of Schools recommended 5/ that the School Board suspend Respondent and initiate a dismissal proceeding against him. The School Board took such recommended action at its July 12, 1995, meeting.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered sustaining Respondent's suspension and dismissing him as an employee of the School Board of Dade County, Florida. DONE and ENTERED in Tallahassee, Leon County, Florida, this 19th day of February, 1996. STUART M. LERNER, 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 19th day of February, 1996.
The Issue Whether just cause exists for Petitioner to suspend Respondent for 15 days without pay.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Miami-Dade County, Florida. At all times material to this case, Respondent was employed as a social studies teacher at Palmetto Middle School (“Palmetto”), a public school in Miami-Dade County, Florida. At all times material to this case, Respondent’s employment with the School Board was governed by Florida law, the School Board’s policies, and the collective bargaining agreement (“CBA”) between the School Board and the United Teachers of Dade (“UTD”). The incident giving rise to this proceeding occurred on March 18, 2014, during the 2013-2014 school year. On March 18, 2014, Respondent was co-teaching a seventh grade social studies class with Vivian Taylor. Ms. Taylor is another social studies teacher at Palmetto. K.W. was a female student in the class. At that time, K.W. was approximately five feet tall and weighed ninety pounds. Prior to March 18, 2014, K.W. sat in an assigned seat in the back of the classroom of the social studies class co- taught by Respondent and Ms. Taylor. On March 17, 2014, K.W. displayed disruptive behavior in the classroom. On March 18, 2014, as the bell rang to signal that class was about to begin, K.W. and other students entered Respondent’s and Ms. Taylor’s classroom. When K.W. entered the classroom on March 18, 2014, Respondent instructed K.W. that she could not sit at her seat in the back of the classroom, and that she needed to sit at a desk in the front of the classroom. Instead of walking toward her newly assigned seat in the front of the classroom, K.W. disregarded Respondent’s instructions and attempted to walk in the opposite direction toward her prior assigned seat in the back of the classroom. Respondent then stood in the aisle, stepped in front of K.W., and “blocked” her “path” toward the seat in the back of the classroom. Respondent blocked K.W.’s path in an attempt to re-direct her to her newly assigned seat in the front of the classroom. In his effort to block K.W.’s path of travel and re-direct her to her newly assigned seat in the front of the classroom, Respondent and K.W. made very slight physical contact with each other. The physical contact between Respondent and K.W. was minor, inadvertent, and lasted no more than one second. At hearing, Respondent denied that he ever made physical contact with K.W. Ms. Taylor, the only other purported eye-witness to the incident, who testified at the hearing on behalf of the School Board, was asked by the School Board’s counsel to describe whether Respondent and K.W. ever made physical contact. In response, Ms. Taylor testified: It was just their chest, just the top body, because Mr. Chandra-Das is a bit taller than her, so when he stepped up, that’s what touched. Ms. Taylor described the physical contact between Respondent and K.W. as very slight--“it was just a touch,” it lasted “[a] second, half a second.” After Respondent blocked K.W.’s path, K.W. stepped back and put her head down. Ms. Taylor testified that K.W. was visibly upset and crying. Ms. Taylor immediately told K.W. to leave the room and go directly to the assistant principal’s office. Respondent’s supervisor, Principal Lux, acknowledged at the final hearing that there is no written directive or School Board policy which forbids a teacher from blocking the path of a student. Principal Lux further testified that he has never “disciplined a teacher in the past for blocking the path of students and not letting the student go wherever they want,” and that he is unaware of any circumstance in his 15 years with the School Board in which the School Board has disciplined an employee for blocking the path of a student. The persuasive and credible evidence adduced at hearing demonstrates that there was, at most, very slight physical contact between K.W. and Respondent as Respondent attempted to block K.W.’s path of travel and re-direct her to her newly assigned seat in the front of the classroom. Respondent did not intend to make physical contact with K.W., and the physical contact between Respondent and K.W. was minor, inadvertent, and lasted no more than one second. The evidence does not establish that Respondent pressed his body against K.W., as alleged in the Notice of Specific Charges.2/ At no time did Respondent grab, push, shove, punch or place his hands on K.W. in any way. Respondent was justified and acted in an appropriate manner in blocking K.W.’s path in the manner that he did, which was in an effort to re-direct K.W. to her newly assigned seat. On March 20, 2014, Respondent was advised of an investigation with regard to the March 18, 2014, incident involving K.W. On that date, Respondent was specifically advised by his supervisor, Principal Lux, in a letter: You are prohibited from contacting any complainant(s) and/or witness(es), with the intent to interfere with the investigation of the above listed allegation(s). Subsequent to Respondent’s receipt of this directive, Respondent contacted Ms. Taylor and advised her that he was the subject of an investigation regarding the March 18, 2014, incident involving K.W. Respondent showed Ms. Taylor the letter, but he did not attempt to influence her in any way. Respondent did not violate the directive of Principal Lux, because Respondent did not contact Ms. Taylor “with the intent to interfere with the investigation.” In sum, the evidence at hearing failed to show that Respondent’s conduct with regard to the incident in the classroom on March 18, 2014, involving K.W. constitutes misconduct in office, gross insubordination, or a violation of School Board policies. In sum, the evidence at hearing failed to show that Respondent violated Principal Lux’s directive not to contact any witnesses “with the intent to interfere with the investigation.” Accordingly, the School Board failed to prove that Respondent’s communications with Ms. Taylor constitutes gross insubordination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order rescinding the 15-day suspension of Respondent with back pay. DONE AND ENTERED this 17th day of November, 2014, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 November, 2014.
The Issue The issue in this case is whether the Respondent, Angel Guzman, committed the violations alleged in a Notice of Specific Charges filed by the Petitioner, the School Board of Miami-Dade County, Florida, on November 14, 2001, and, if so, the penalty that should be imposed.
Findings Of Fact Petitioner, the Miami-Dade County School Board (hereinafter referred to as the "School Board"), is a duly- constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Article IX, Florida Constitution; and Section 230.03, Florida Statutes. At all times material to this proceeding, Angel Guzman was employed as a teacher by the School Board and assigned to Miami Edison Middle School (hereinafter referred to as "Edison"). Mr. Guzman is and has been employed by the School Board pursuant to an annual service contract. Prior to his employment by the School Board, Mr. Guzman was employed by New York City as a teacher assistant for three years and as a teacher for four years. He has been employed as a graphic communications teacher by the School Board since 1998, approximately two and a half years. Prior to the incidents that are the subject of this proceeding, Mr. Guzman had never been the subject of a School Board personnel investigation. The February 16, 2001, Incident On February 16, 2001, Mr. Guzman was handing out reading logs in a FCAT preparation class at Edison. The students in the class were seventh graders. Sherwin JeanPierre, a student in the class, and another student asked their fellow student, Maurice Barnhill to get their reading logs from Mr. Guzman. Maurice picked up the logs, but was confronted by Mr. Guzman who, when he learned that Maurice was picking up logs for others, snatched the logs out of his hands and told him to return to his seat. An argument between Mr. Guzman and Maurice ensued. The teacher and student yelled at each other, Mr. Guzman forcefully pushed Maurice on the shoulder, and Mr. Guzman said "coño" to Maurice, which means "damn" in Spanish. Mr. Guzman eventually became so angry that he grabbed a wooden stool located between him and Maurice, swung it toward Maurice, and hit Maurice on the leg with the stool. While the stool hurt Maurice, he suffered no significant injury. The Second February 2001 Incident Following the February 16, 2001, incident, Mr. Guzman and another student were involved in a verbal confrontation. The situation was defused by Theron Clark, an Assistant Principal at Edison, and a security monitor. Following the confrontation, Mr. Clark and Dr. Peggy Henderson Jones, another Assistant Principal, met with Mr. Guzman. At this meeting, Mr. Guzman indicated that he was very stressed and did not want to return to his class. Mr. Guzman was allowed to go home the day of the incident and was subsequently referred to the Employee Assistance Program. Disciplinary Action Against Mr. Guzman for the February 16, 2001, Incident A conference-for-the-record (hereinafter referred to as the "conference") was held with Mr. Guzman on March 6, 2001, by Ronald D. Major, the Principal at Edison. The conference was attended by Mr. Major, Mr. Theron, Eduardo Sacarello, a United Teachers of Dade representative, and Mr. Guzman. The purpose of the conference was to discuss Mr. Guzman's non-compliance, during the February 16, 2001, incident with Maurice Barnhill, with school rules, School Board Rules 6Gx13-5D-1.07, dealing with corporal punishment, and 6Gx13-4A-1.21, dealing with employee conduct, and the Collective Bargaining Agreement between the School Board and the United Teachers of Dade. During the conference, Mr. Guzman was advised that a letter of reprimand would be issued, and he was directed to immediately implement procedures for the removal of disruptive students consistent with the faculty handbook. Mr. Guzman was also warned that any recurrence of the type of violation committed by him during the February 16, 2001, incident would result in further disciplinary action. A written reprimand to Mr. Guzman was issued on March 7, 2001, by Mr. Major. In the reprimand, Mr. Major again warned Mr. Guzman that any recurrence of the infraction would result in additional disciplinary action. The April 25, 2001, Incident On April 25, 2001, during a class under Mr. Guzman's supervision, Mr. Guzman caused a document to be printed from a class computer. A student took the paper and gave it to another student in the class, Ian Lightbourne, who asked for the paper. Ian placed the paper, even though it did not belong to him, in his book bag. When Mr. Guzman came to retrieve the paper he had printed, found it was gone, and asked if anyone knew what had happened to it. Although no one answered, Mr. Guzman suspected Ian and asked him to open his book bag. Ian complied and Mr. Guzman found the paper. Mr. Guzman became irate and began yelling at Ian to "not touch my things." Mr. Guzman then grabbed Ian by the arm and started to pull him toward the front of the classroom. Ian, who was sitting on a stool, lost his balance and fell to his knees. Mr. Guzman continued to pull Ian, who began to cry and yell, "Let me go," the length of the classroom on his knees. Mr. Guzman pulled Ian to a corner of the classroom where he banged Ian's arm against a metal darkroom door. Ian had previously broken the arm that Mr. Guzman grabbed and had only recently had the cast removed. Although the incident did not result in any serious injury to Ian, it was painful and caused his mother to seek medical attention for her son. On April 27, 2001, as a result of the April 25, 2001, incident, Mr. Guzman was assigned to alternative work at his residence, with pay. Mr. Guzman was not allowed to have any contact in his assignment with students. On August 14, 2001, the County Court in and for Dade County, Florida, entered a "Stay Away Order" in Case No. M0130143 requiring that Mr. Guzman stay away from, and have no contact with, Ian. Disciplinary Action Against Mr. Guzman for the April 25, 2001, Incident On August 29, 2001, another conference-for-the-record (hereinafter referred to as the "second conference") was held. The second conference was attended by Julia F. Menendez, Regional Director, Region IV Operations of the School Board; Sharon D. Jackson, District Director; and Mr. Guzman. The second conference was held at the School Board's Office of Professional Standards. The second conference was conducted to discuss Mr. Guzman's performance assessments, non-compliance with School Board policies and rules regarding violence in the workplace and corporal punishment, insubordination, noncompliance with site directives regarding appropriate use of discipline techniques, violation of the Code of Ethics and Professional Responsibilities, and Mr. Guzman's future employment with the School Board. At the conclusion of the second conference, Mr. Guzman was informed that his alternative work assignment would be continued, that his actions would be reviewed with the Superintendent of Region IV Operations, the Assistant Superintendent in the Office of Professional Standards, and Edison's principal, and he was directed to refrain from touching, grabbing, hitting, or dragging any student for any reason. Subsequent to the second conference, the School Board's Office of Professional Standards concluded that Mr. Guzman had violated School Board and state rules. Therefore, an agenda item recommending dismissal of Mr. Guzman was prepared for the School Board to consider. That agenda item was discussed with Mr. Guzman on October 16, 2001, and was considered at the School Board's meeting of October 24, 2001. At its October 24, 2001, meeting, the School Board suspended Mr. Guzman without pay and approved the initiation of dismissal proceedings against him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the decision of the School Board of Miami-Dade County, Florida, suspending Angel Guzman without pay be sustained and that his employment with the School Board of Miami-Dade County, Florida, be terminated. DONE AND ENTERED this 27th day of March, 2002, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 2002. COPIES FURNISHED: Madelyn P. Schere, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Frank E. Freeman, Esquire 666 Northeast 125th Street Suite 238 Miami, Florida 33161 Merrett R. Stierheim, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue Whether Petitioner has just cause to terminate the professional service contract with Respondent on the grounds of immorality, gross insubordination and neglect of duties, and misconduct in office.
Findings Of Fact At all times material hereto, Respondent was employed by the School Board pursuant to a professional service contract. He is certified to teach Elementary Education, grades K through 6. He began his employment with the School Board on October 10, 1983, and he was assigned at different times pertinent to this proceeding to Broadmoor Elementary School (Broadmoor), Allapattah Elementary School (Allapattah), Touissant L'Ouverture Elementary School (L'Ouverture), or an alternative assignment. At all times material hereto, Petitioner was a duly constituted school board charged with the duty to operate, control and supervise all free public schools within the School District of Dade County, Florida. On April 3, 1989, while carrying out his duties as a teacher at Broadmoor, Respondent was involved in an incident with an eight year old third grade female student. The School Board initiated disciplinary proceedings against the Respondent that were subsequently referred to the Division of Administrative Hearings where it was assigned DOAH Case No. 89-3358. Following a formal hearing in DOAH Case No. 89-3358, a Recommended Order was entered which found Respondent guilty of misconduct in office and recommended that his employment be suspended without pay for ten days. The School Board adopted the Hearing Officer's Recommended Order as its Final Order on March 21, 1990. The Hearing Officer found that the Respondent and the child had accidentally fallen to the ground while the Respondent was using an inappropriate technique to restrain the child. The Hearing Officer further found that the Respondent had pushed the child back to the ground when she tried to stand after the fall. As a result of this incident, the student suffered scrapes on her face and a swollen lip. Pertinent to this proceeding, the Recommended Order contained the following statement, which may properly be considered to be a warning to the Respondent: ". . . a 250 pound man must demonstrate more caution and restraint in handling a third grade student." The School Board adopted this warning as a part of its Final Order and the warning served as a directive to the Respondent. The Hearing Officer in DOAH Case No. 89-3358 further found that Respondent's effectiveness as a teacher had been impaired as a result of that incident. As a result of the incident involved in DOAH Case 89-3358, the Commissioner of Education and Respondent entered into a "Deferred Prosecution Agreement," to be implemented through the end of the 1990-91 school year. Respondent was directed to complete a college course in conflict resolutions, complete a college course in behavior management, to comply with all Board rules, State Board of Education rules and to perform his duties in a professional manner satisfactory to the Board and in compliance with the rules of the Florida Department of Education. Petitioner's Office of Professional Standards (OPS), through Dr. Joyce Annunziata, monitored the implementation of this agreement. On March 21, 1990, the School Board entered its Final Order in DOAH Case No. 89-3358. Subsequent to that date, the Respondent was assigned to teach at Allapattah. Respondent reported to work at Allapattah on March 23, 1990. He was given a faculty handbook and verbal directions concerning school procedures. The substitute teacher who had been assigned to the class previously, offered to update Respondent on each student, but Respondent rejected the help. On April 4, 1990, Respondent, who is six feet tall and weighs approximately 250 pounds, towered over a small male student and yelled loudly at the student for chewing gum. He forced the student to stand in front of his class with his mouth open and pockets out. On April 23, 1990, Respondent was formally observed in the classroom by his principal, Mr. Jones. Using the Board's Teacher Assessment and Development System (TADS), Mr. Jones rated Respondent unsatisfactory in preparation and planning and classroom management. Respondent's lesson plans were incomplete and lacked the required components. Respondent's students were off task and not paying attention when Mr. Jones observed the class. On April 27, 1990, a conference for the record was held involving Respondent, Dr. Annunziata, Mr. Jones, and one other administrator. As conditions of his employment, Respondent was directed to participate in assertive discipline training and to undertake coursework through the Teacher Education Center (TEC) in classroom management, disciplinary techniques and skills for improving student behavior. Respondent was prescribed help to improve his deficiencies. He was instructed to write lesson plans and review those plans with the grade level chairperson. Respondent was told to update his assertive discipline plan and to intervene quickly when off task or disruptive behavior occurred. He was instructed to read the TADS Prescription Manual for additional techniques and strategies to improvement classroom management. On April 27, 1990, the school counselor met with Respondent to review and reinforce assertive discipline techniques and to offer support and assistance. On May 3, 1990, Respondent visited two fifth grade classes to observe classroom management techniques. On May 8, 1990, Felipe Garza, a teacher and grade chairperson at Allapattah, heard a disturbance in Respondent's classroom and entered the classroom. A group of students had locked another student in a closet in the rear of Respondent's classroom. Respondent had told the students to let the student out of the closet, but his instruction had been ignored. Respondent remained seated at his desk and took no further action to release the student from the closet. It appeared to Mr. Garza that Respondent had no interest in restoring order to his classroom or in releasing the student from the closet. Because of Respondent's prior discipline by the School Board, he was reluctant to physically remove the student from the closet. Mr. Garza asked another student to let the child out of the closet and took steps to restore order to the classroom. Thereafter Mr. Jones, the principal, entered Respondent's classroom and order was immediately restored. Two students had actually been locked in the closet, but the other student had been let out of the closet before Mr. Garza came into the classroom. While neither student was placed in danger by being locked in the closet, it is clear that Respondent failed to maintain control over his classroom. Instead of using appropriate disciplinary techniques to restore order to his class, Respondent elected to take no action. Following the incident on May 8, 1990, Mr. Jones referred Respondent to the Employee Assistance Program (EAP). The referral form indicated that the observed behavior causing the referral involved altercations with students and Respondent's exercise of poor judgment. Mr. Jones testified at the formal hearing that he had observed Respondent shouting at students, pulling and grabbing students, and hitting students. Respondent's students were disruptive, out of control, and running in the hallway. The students had been throwing objects, such as rubber bands, spitballs, and paperclips. Mr. Jones stated the following in his request for an evaluation of the Respondent: Please consider our request for a medical fitness determination on John Ackley, a fifth grade teacher at Allapattah Elementary School. Because of several incidents involving disruptive behavior and an atmosphere not conducive to our students's learning, we fear for the safety of our students. The classroom instructional program has suffered because of the off-task behavior of students and the inability of the teacher to redirect this behavior. On June 20, 1990, a conference for the record was held with Respondent to address the incident of the students being locked in the closet. While the incident was being investigated, Respondent was placed on alternate assignment in the region office without student contact for approximately six weeks. On July 18, 1990, Respondent was issued a letter of reprimand from Mr. Jones for allowing the two students to remain locked in the closet and for refusing to remove the students from the closet. Respondent was directed to maintain control and discipline of his students. He was directed to immediately implement appropriate procedures for insuring safety. He was "directed to refrain from using inappropriate procedures in dealing with inappropriate classroom behavior of students". He was directed to follow professional ethics and School Board rules. He was put on notice that any recurrence would result in additional disciplinary action. Respondent's annual evaluation for the 1989-90 school year was overall unacceptable and was unacceptable in professional responsibility. He was rated unacceptable for failure to comply with school site rules and policies and for failure to perform assigned professional duties. He was directed to read the Code of Ethics of the Education Profession in Florida (Ethics Code) and the Principles of Professional Conduct for the Education in Florida (Professional Conduct Principles) and to delineate a written plan on ethics and how they would apply in his classroom daily. He was to review the staff hand book section on classroom discipline procedures. His salary was frozen at the previous year's level. At Allapattah Respondent was unable to control the students in his classroom, which resulted in an atmosphere that was dangerous to students' learning and safety. His lack of control was the result of poor planning, an inability to communicate with the students, and the failure to use appropriate disciplinary techniques. For the 1990-91 school year, and thereafter, Respondent was assigned to L'Ouverture where he was assigned to teach a "classroom indoor suspension" class. The "classroom indoor suspension" class consisted of students who had been disruptive of other classes and who could not be controlled by other teachers using ordinary means. 1/ On January 15, 1993, James Maisonnerve, a fourth grade student at L'Ouverture, was fighting and hitting other students in the cafeteria. James often caused trouble at school and his mother had difficulty disciplining him at home. Respondent, who was on duty at the cafeteria, forced James to sit down next to him and restrained James by placing James' arm under his (Respondent's) leg. James tried to escape from the Respondent and, in the process, twisted his arm. James was injured as a result of this incident and he experienced pain. When James came home from school, his mother observed that his hand was swollen and called the police. A fire-rescue unit was called and he was taken to Jackson Memorial Hospital where x-rays revealed no fracture. His arm was swollen and had to be bandaged. Petitioner alleged that Respondent twisted James's arm, causing the injury. It is found that the injury occurred when James tried to free himself from this restraint and that Respondent did not intentionally twist James's arm. It is further found that the technique used by Respondent to restrain James was inappropriate. Keyota Ragin was a fourth grade student at L'Ouverture during the 1992-93 school year and was, at the time pertinent to this proceeding, approximately three feet six inches tall and weighed approximately 60 pounds. Keyota frequently caused trouble. Keyota testified Respondent had, on May 25, 1993, grabbed her by her arm and pushed her into the line so that her jaw hit another boy's head. Keyota also testified that when she stepped out of line again and laughed, Respondent hit her with his fist on the top of her head. Keyota testified that her injuries hurt and caused her to cry. Keyota further testified that when she returned to Respondent's classroom, Respondent grabbed her by the arm and put her in the corner and that he later grabbed her by the hair and pulled her across the room to her seat. Keyota's face was swollen when she arrived at home after school, and her mother called the police. Respondent testified that Keyota was hit in the face by a fellow student named James. Respondent denied that he pushed Keyota into another student, that he struck her, that he grabbed her, or that he pulled her hair. Respondent's denial is just as credible as Keyota's version of the incident. Consequently, it is found that Petitioner failed to establish that Respondent pushed, struck, grabbed, or pulled the hair of Keyota. While this incident was being investigated, Respondent was placed on alternative assignment for one month and was out of contact with students. For the entire semester, he only worked in a classroom for six weeks. Wendy Steiner, a friend and fellow teacher of the Respondent at L'Ouverture, observed Respondent forcing students to stand with their arms outstretched while holding books and she also observed Respondent restraining students by leaning against them. These are inappropriate disciplinary techniques. Respondent's annual evaluation for the 1992-93 school year was overall unacceptable and unacceptable in the category of professional responsibility. Respondent was found deficient because he failed to comply with Board policy and rules regarding corporal punishment and employee conduct and because he violated the labor contract provisions concerning student discipline and instructional planning. He was also found deficient in following the Ethics Code and the Professional Conduct Principles. He was found deficient in compliance with site directives concerning the use of physical means to effect discipline and maintaining a safe learning environment for students. He was given a prescription to help him over come his deficiencies. During the last three years of employment, Respondent has spent approximately one year at alternate assignments, without student contact, pending investigations. He received his full teacher's salary during those alternate assignments. The Respondent's effectiveness as a teacher in the Dade County School System has been impaired by his continued use of inappropriate disciplinary techniques and his service to the School Board has been unproductive. Respondent has exercised poor judgment after repeated efforts to train him in the use of appropriate disciplinary techniques. Respondent's rough handling of students has received notoriety in the school and in the community. His conduct has reflected poorly on himself and on the school system. The Board has also adopted School Board Rule 6Gxl3-5D-l.08 which provides teachers the authority to direct and discipline students and requires teachers to keep good order in the classroom and in other places in which responsibility for students is assigned. The Board has also adopted School Board Rule 6Gxl3-5D-l.07 which prohibits the corporal punishment of students. On November 3, 1993, the School Board suspended Respondent's employment without pay and initiated these dismissal proceedings against him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County, Florida issue a Final Order which adopts the findings of fact and the conclusions of law contained herein and which sustains the suspension without pay of John N. Ackley and which terminates his professional service contract with the School Board of Dade County, Florida. DONE AND ENTERED this 14th day of June, 1994, 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 June, 1994.
