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, Lake County School Board, had just cause to terminate Respondents for the reasons specified in the agency action letters dated April 17, 2018.
Findings Of Fact Petitioner, Lake County School Board, is the constitutional entity authorized to operate, control, and supervise the public schools within Lake County. See Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat. Petitioner is authorized to discipline instructional staff and other school employees. See § 1012.22(1)(f), Fla. Stat. Mr. Rosier has been employed at Groveland Elementary School (Groveland) in Lake County, Florida, for three years. During the 2016-2017 and 2017-2018 school years, Mr. Rosier was the Instructional Dean. One of Mr. Rosier’s duties was to assist teachers with students who have behavioral problems and liaison with parents of these students. Mr. Rosier also conducted in- school suspension of students. Mr. Rosier also had a contract supplement to assist with students who were on campus after school hours because they either missed the bus or were not picked up by their parent or guardian on time. Mr. Rosier assisted by keeping the student safe and contacting the emergency contact on file for the student to find a way to get the student home. Ms. Lassen has taught at Groveland for four years. She taught first grade during the 2016-2017 and 2017-2018 school years. Petitioner Lassen is an “inclusion teacher,” meaning her classroom is a combination of students receiving Exceptional Student Education (ESE) services and students with no need for services. Ms. Lassen has no special training in ESE services for children with behavioral challenges. ESE students in her classroom are “push in, pull out,” meaning an exceptional education teacher comes in to work with some of the students in the classroom, and other students are pulled out of the classroom to work with an exceptional education teacher. Ms. Lassen was not happy at Groveland. She enjoyed teaching and was passionate about her students achieving their learning potential. However, she was frustrated by what she saw as a lack of needed services for her ESE students. Ms. Lassen applied for a transfer during the 2016 school year, but the transfer was denied. During the 2017-2018 school year, Ms. Lassen had eleven ESE students in her classroom, four of whom had severe behavioral issues. Some of her students were violent, even trying to harm themselves. She found it stressful to corral children who were throwing things in the classroom, especially at other children, while trying to teach the required lessons. She often found herself dealing with parents who were upset about their ESE child being disciplined for their behaviors, or who were upset about the treatment of their child by an ESE student. To address these concerns, Ms. Lassen frequently met with Mr. Rosier. Toward the end of the 2017-2018 school year--in March 2018 particularly--they met roughly twice a week. The two met once in Mr. Rosier’s office and sometimes in the portable where Mr. Rosier conducted in-school suspension; however, they met most frequently in Ms. Lassen’s classroom. The meetings usually occurred around 4:00 p.m., after students were dismissed at 3:30 p.m. and Mr. Rosier’s after- school responsibilities ended. Ms. Lassen usually left the school between 4:15 p.m. and 4:30 p.m. to pick up her own children from school and daycare and take them to after-school activities. During the meetings, Ms. Lassen discussed with Mr. Rosier the behavioral challenges she faced with students in her classroom, as well as the issues with parents. Mr. Rosier had the responsibility to deal with parents, often conducting parent conferences to address issues arising in the classroom. Ms. Lassen and Mr. Rosier became friends, and occasionally discussed personal matters, in addition to classroom and parent issues. Sometimes Ms. Lassen would become emotional. Mr. Rosier assured her he would work to get the help the students needed. Kimberly Sneed was the Groveland Principal during the 2017-2018 school year. On April 2, 2018, Mr. Sneed entered Ms. Lassen’s classroom shortly after 4:00 p.m. Assistant Principal Joseph Mabry had suggested to Ms. Sneed that she should look into why Mr. Rosier was in Ms. Lassen’s classroom at that time. When Ms. Sneed arrived, she observed that the lights were turned off and the classroom was empty. She walked to the classroom supply closet, inserted her key, and opened the door, which opens inward. Just as she was pushing the door open, Ms. Lassen pulled the door open to exit the closet with her purse and supply bag in hand. Ms. Sneed did not try the closet door handle first to determine whether the closet was locked. She simply inserted the key in the lock and pushed open the door. She testified that she was not certain the closet door was actually locked. The closet light was off when Ms. Lassen opened the closet. Ms. Lassen testified that she had just switched the light off before opening the door to exit the closet. Ms. Sneed turned the light switch on as she entered the closet. Ms. Lassen was surprised to see Ms. Sneed and asked if she could help her find something. Ms. Sneed asked Ms. Lassen why she had been in a dark closet. How Ms. Lassen replied to Ms. Sneed’s question was a disputed issue. Ms. Lassen maintains she said, “Ms. Sneed, you don’t understand, all it was, it was just a kiss, a kiss on the cheek, nothing more.” Ms. Sneed maintains Ms. Lassen said, “We were only kissing, we weren’t doing anything, no sex or nothing.” Ms. Lassen promptly left to pick up her children. Ms. Sneed entered the closet and observed Mr. Rosier standing at the back of the L-shaped closet, with his back to the door. Mr. Rosier was fully clothed, but his shirt was untucked and his glasses were off. Ms. Sneed did not question Mr. Rosier. Instead she quipped sarcastically, “Really, Mr. Rosier? Really?” Mr. Rosier did not turn toward Ms. Sneed or otherwise respond to her immediately. As Ms. Sneed exited the closet and proceeded to leave the classroom, Mr. Rosier called after her and asked if he could talk with her in her office. What else Mr. Rosier said to Ms. Sneed at that time was also a disputed issue. Ms. Sneed testified that Mr. Rosier stated, “I’ll admit we were kissing, and it turned into touching, but nothing else.” Mr. Rosier was not certain what exactly he said, but admitted that he did use the word “kiss.” He testified that everything happened quickly. He was embarrassed and Ms. Sneed was angry. The following day, Ms. Sneed reported the incident to the School Board Employee Relations Supervisor Katherine Falcon. That same day, both Ms. Lassen and Mr. Rosier were interviewed separately by Ms. Falcon. Ms. Falcon drafted an interview questionnaire based solely on her telephone conversation with Ms. Sneed that morning. The questionnaire contained the following seven questions: For the record state your name. What is your current position? How long have you been in your current position? Yesterday, Ms. Sneed found you and another teacher in a locked dark closet. Can you explain? Is this the first time you have engaged in this activity on campus? Did you share any information about this incident with anyone else? Is there anything else you would like to say? Ms. Falcon asked the questions, and David Meyers, Employee Relations Manager, typed Respondents’ answers. Ms. Falcon printed the interview record on site and presented it to each respective Respondent to review and sign. The report states Ms. Lassen’s response to Question 4 as follows: The closet was unlocked. It is always unlocked. I just kissed him. It didn’t go any further. There was no touching or clothing off. Nothing exposed. Nothing like that has ever happened before. Yesterday was more, like a kiss goodbye. I was getting ready to leave and getting my stuff. He was standing by the door. He was standing by my filing cabinet. Nobody ever comes in there during the day. Sneed wanted to know what we were doing in there. We told her we were fooling around a little bit, kissing. Ms. Lassen signed her interview report without asking for clarifications or changes. Ms. Lassen testified that she did not review the interview report before signing, did not understand it to be any form of discipline, and was anxious to return to her classroom because her ESE students do not do well in her absence. At the final hearing, Ms. Lassen denied stating anything about “fooling around a little” with Mr. Rosier. In response to the same question, Mr. Rosier’s report states the following: The closet wasn’t locked. This teacher, Katie Lassen and I have become good friends. Yesterday we caught ourselves being too close, kissing, hugging . . . . We were first in the main classroom. When we began to kiss we went in the closet. There was a knock on the door. It was Ms. Sneed. My clothes were kind of wrangled. Mr. Rosier also signed his interview report without asking for clarifications or changes. At the final hearing, Mr. Rosier denied stating that he and Ms. Lassen were “kissing and hugging” or that “when we began to kiss we went into the closet.” As to his statement that “we caught ourselves becoming too close,” he testified that he meant they had begun discussing personal issues in addition to Ms. Lassen’s concerns with her ESE students. Ms. Lassen and Mr. Rosier testified as follows: they were discussing her concerns about a particular ESE student who was very disruptive and threatened to harm himself. Ms. Lassen was emotional. Ms. Lassen proceeded into the closet to get her things so she could leave to pick up her children and get them to after-school activities. Just inside the closet, Ms. Lassen broke down crying again. Mr. Rosier entered the closet, closing the door behind him (allegedly to keep anyone from seeing Ms. Lassen cry), put his hands on her shoulders and told her to get herself together and not let anyone see her crying when she left the school. She collected herself, thanked him, gave him a hug and they exchanged kisses on the cheek. Respondents’ stories at final hearing were nearly identical, a little too well-rehearsed, and differed too much from the spontaneous statements made at the time of the incident, to be credible. Based on the totality of the evidence, and inferences drawn therefrom, the undersigned finds as follows: Mr. Rosier was consoling Ms. Lassen and the two adults became caught up in the moment, giving in to an attraction born from an initial respectful working relationship. The encounter was brief and there is no credible evidence that Respondents did anything other than kiss each other. Both Respondents regret it and had no intention to continue anything other than a professional relationship. This incident occurred after school hours, sometime between 4:00 p.m. and 4:30 p.m. on April 2, 2018. The only students on campus were at an after-school care program in a different building across campus. No one witnessed Respondents kissing or entering the closet together. Only Ms. Sneed witnessed Respondents emerging from the closet. Both Respondents were terminated effective April 23, 2018. Administrative Charges The school board’s administrative complaints suffer from a lack of specificity. Both employees are charged with “engaging in sexual misconduct on the school campus with another school board employee which is considered Misconduct in Office,” in violation of the Principles of Professional Conduct for Educators (Principles). The administrative complaints do not charge Respondents with any specific date, time, or place of particular conduct which constitutes “sexual misconduct.”2/ Moreover, the School Board introduced no definition of sexual misconduct. The School Board inquired about some specific conduct during the Employee Relations interviews with Respondents. Ms. Falcon asked Respondents about being found together in a “locked dark closet.” The School Board failed to prove that the closet was either locked or dark while Respondents were in the closet. It appears the School Board bases its charge of Misconduct in Office, in part, on an allegation that the Respondents had “engaged in this activity on campus” on dates other than April 2, 2018. When Ms. Sneed went to Ms. Lassen’s room on April 2, 2018, she was acting upon a report that Mr. Rosier went to Ms. Lassen’s room every day at 4:00 p.m. There is no reliable evidence in the record to support a finding to that effect. The report that Mr. Rosier “went to Ms. Lassen’s classroom every day at 4:00,” was hearsay to the 4th degree,3/ without any non-hearsay corroborating evidence. Petitioner did not prove Respondents were ever together in a closet, much less a dark closet, on campus any date other than April 2, 2018. Finally, it appears the School Board bases its charges, in part, on an allegation that Mr. Rosier was not fulfilling his after-school duties because he was spending too much time with Ms. Lassen. To that point, Petitioner introduced testimony that on the Friday after spring break in March, Mr. Rosier was not to be found when the administration had to deal with a student who had either missed the bus or was not picked up on time. Ms. Sneed testified that Mr. Rosier came through the front office, observed the student there with herself and Mr. Mabry, and left through the front office. Ms. Sneed assumed Mr. Rosier had left for the day, but that when she left the school she saw his car in the parking lot. Mr. Rosier recalled that particular day, and testified that, as two administrators were attending to the student, he did not see the need for a third. He chose instead to keep his appointment with Ms. Lassen to discuss her difficult students. Petitioner did not prove that Mr. Rosier neglected either his after-school or any other duties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lake County School Board enter a final order dismissing the charges against Respondents Katie Lassen and Alan Rosier, and award back pay and benefits retroactive to April 23, 2018. DONE AND ENTERED this 3rd day of August, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 3rd day of August, 2018.
The Issue The issue presented is whether or not the Respondent should be dismissed from her employment with the Dade County School Board. Petitioner called Mrs. Rose Ann Collum, Keith William Reilly (a minor), Anthony Rossi (a minor), Mrs. Carol Zappi, Robert Staelen, and Desmond Patrick Gray and had admitted Exhibits 1 and 2. Respondent testified on her own behalf. The Pre-Trial Stipulation was admitted as Hearing Officer's Exhibit 1. No transcript was provided and the parties' failure to file proposed Findings of Fact and Conclusions of Law within the time stipulated therefor is deemed a waiver of that right.
Findings Of Fact At all times pertinent hereto, Respondent was an employee of the School Board of Dade County under a continuing contract of employment as an elementary school teacher at Madie Ives Elementary Community School in Miami, Florida. She has taught there successfully since 1966 or 1967. Beginning on or about September 1, 1983 and continuing through and including May of 1984, Respondent engaged in a course of conduct with the students assigned to her which included paddling, and on multiple occasions during this period she administered this paddling, which is in the nature of corporal punishment, to various students (more than 20) in her class. The type of paddling involved was described variously by the two students who testified live at formal hearing as "did not hurt," "just an attention getter," "not bad," "only a little sting," "only when I was bad," and "I was never injured or hurt." Parents were never contacted in advance of the paddlings which seem to have had a spontaneous quality. These paddlings occurred always in the Respondent's 5th Grade classroom in front of the class at the side of Respondent's desk, and a thin narrow wooden paddle was used. The paddle was applied to the child's buttocks through his/her clothing. Paddlings never occurred in the principal's office or in the presence of any other adult. Respondent made no attempt to hide what was going on, but she admitted that some students would excitedly post "look-outs" at the classroom door, so it appears that there was a belief, at least on the children's part, that the paddlings were contrary to the School Board's or principal's stated policies. These paddlings occurred on an almost daily basis. Some children received a stroke once a week or every other day. It seldom occurred to the same child two days in a row. Keith William Reilly, now 12 years old, described the 1983-84 year's punishment for fighting as 4 strokes and for talking as less. Anthony Rossi, also now 12 years old, testified he was paddled 8 or 9 times in the 1983-84 school year and no one else was paddled more often than he. Most students got no more than two strokes on a single occasion. There is no evidence of physical or emotional harm to these students. The majority of parents contacted by School Board Investigator Robert Staelen indicated that if they had been contacted before the paddling incidents they would have or might have given permission to paddle. The two mothers who testified live corroborated this as to their own children. At least one set of parents, Mr. and Mrs. Zappi, objected to not being noti- fied before their daughter was paddled. They experienced diffi- culty getting the child to return to school after she related to them the paddling incident or incidents. There is no evidence of paddling of any child under psychological or medical treatment. During Conferences for the Record, conducted by Dr. Desmond Patrick Gray, Executive Director, Director of Personnel Control, Division of Management for the School Board of Dade County, after the School Board became aware of the paddling incidents, Respondent acknowledged that she was familiar with School Board Rule 6GX13-5D-1.O7. Normally, Dr. Gray would have recommended that Respondent be given a 10 working days' suspen- sion upon the facts of the paddlings as he understood them, but thereafter, believing that Respondent had been paddling for two school years and had been previously reprimanded for similar incidents, he recommended dismissal. Indeed, on January 29, 1982, Respondent had been formally reprimanded (P-2) by her then-principal, Robert D. Conk, for four apparently unrelated "events," the only pertinent one of which is phrased: "(1) You are frequently out of your room and students were left unsupervised. Upon your return, absences were reprimanded by your students who had misbehaved during your spanking them with a ruler or paddle." Respondent acknowledges that she received this reprimand, but states that it slipped her mind in her discussions with Dr. Gray because it was of a minor nature and the emphasis was not directed against paddling or corporal punishment, because Dr. Conk told her to forget the reprimand as an unimportant formality, and because Dr. Conk frequently sent students to her for discipline, including paddling. On or about August 22, 1984, Respondent was suspended from employment with the Dade County School Board upon grounds of incompetency, gross insubordination, and misconduct in office.
Recommendation That the School Board of Dade County enter a final order limiting the suspension of Respondent to a total of 90 working days, applying that period to the time she has already been suspended and reinstating her thereafter with any appropriate back pay and benefits. DONE and ORDERED this 22nd day of March, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1985. COPIES FURNISHED: Thomas H. Robertson, Esquire McCormick Bldg., 3rd Floor 111 S.W. Third St. Miami, Florida 33130 William DuFresne, Esquire One Biscayne Tower, Suite 1782 Two South Biscayne Blvd. Miami, Florida 33131 Phyllis O. Douglas Esquire Dade County School Board 1410 N. E. Second Ave. Miami, Florida 33132 Dr. Leonard Britton, Superintendent Dade County Public Schools 1410 N.E. Second Ave. Miami, Florida 33132 =================================================================
The Issue Whether Arthurine Brown (Respondent) committed the acts alleged in the Notice of Specific Charges filed by the Miami-Dade School Board (the School Board) on July 3, 2013, and whether the School Board has good cause to terminate Respondent's employment as a paraprofessional.
Findings Of Fact At all times material hereto, the School Board has been the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. NMSHS is a public school in Miami-Dade County, Florida. During the 2012-2013 school year, the School Board employed Respondent as a paraprofessional pursuant to a professional service contract. The School Board assigned Respondent to a self-contained, special education classroom at NMSHS taught by Dorothy Roberts. Respondent has worked at NMSHS as a paraprofessional since 2004. During the 2012-2013 school year, paraprofessionals Frantzso Brice and Larry Eason were also assigned to Ms. Roberts' classroom. Ms. Roberts' class consisted of 13 special needs children with varying exceptionalities. The vast majority of Ms. Roberts' class was of Haitian descent. Ms. Roberts' students included P.P.C. (the Student), a non-verbal child on the autism spectrum. The Student is a 14-year-old male who functions at the level of a two or three-year-old child. On January 17, 2013, Ms. Roberts, Mr. Brice, and Respondent were in the process of escorting children into the classroom for the beginning of the school day when an incident involving Respondent and the Student occurred. Ms. Roberts, Mr. Brice, and Respondent were in the classroom when the incident occurred. Mr. Eason was not in the classroom when the incident occurred. After the Student entered the classroom at approximately 7:15 a.m., he picked up Respondent's purse from a table and went towards a window. What happened next is in dispute. The greater weight of the credible evidence established that Respondent cornered the Student, grabbed him by the throat with her left hand, and slapped him in the face using the palm of her right hand. Ms. Roberts heard the sound of the slap. Ms. Roberts and Mr. Brice described the slap as being very hard. Ms. Roberts heard Respondent warn against "touching her fucking shit." Mr. Brice heard Respondent warn against "touching her fucking stuff." 1/ Immediately after the incident, the Student had tears in his eyes, but his face had no observable bruising or swelling. Ms. Roberts immediately reported her version of the incident to Michael Lewis, the principal of NMSHS. After talking to Ms. Roberts, Mr. Lewis interviewed Respondent in Ms. Roberts' classroom, without Ms. Roberts being present. Mr. Lewis removed Respondent from the classroom, and instigated an investigation that culminated in this proceeding. Respondent had no justification for striking the Student. During the 2012-2013 school year, Respondent repeatedly used profanity in front of students and co-workers. Ms. Roberts repeatedly told Respondent to stop using profanity, but Respondent did not heed that instruction. During the 2012-2013 school year, Respondent repeatedly made derogatory remarks about Haitians. Respondent stated that she was tired of working with "fucking" Haitians and declared that Haitians were dumb, stupid, and should go home. Mr. Brice, who is Haitian, felt disrespected by Respondent's disparaging statements. At its regularly scheduled meeting on May 8, 2013, the School Board suspended Respondent's employment and instituted these proceedings to terminate her employment.
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 set forth in this Recommended Order. It is FURTHER RECOMMENDED that the final order uphold the suspension without pay of employment of Arthurine Brown and terminates that employment. DONE AND ENTERED this 30th day of September, 2013, 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 30th day of September, 2013.
The Issue Whether Respondent's suspension from employment with the Dade County School Board should be affirmed and whether Respondent should be dismissed from employment with the Dade County School Board.
Findings Of Fact Respondent, Jill Cohen (Ms. Cohen), has been a school teacher for fifteen years. At all times material hereto, Ms. Cohen, was employed by Petitioner, Dade County School Board (School Board) as an elementary school teacher under a continuing contract. 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 27, 1989, Ms. Cohen, while employed at Edison Park Elementary School, had to leave her classroom for a personal hygiene emergency. She asked another teacher with whom she shared the classroom to watch her students while she went to the school clinic. The other teacher advised Ms. Cohen that in a few minutes she had to pick the students up at the physical education field. While Ms. Cohen was absent, the other teacher had to leave the classroom to get her own students. With both teachers absent from the classroom, Ms. Cohen's students were left unsupervised. On May 8, 1989, a conference-for-the-record was held with Ms. Cohen concerning the incident on April 27, 1989, and eleven tardies Ms. Cohen had from January 12, 1989 through May 2, 1989. She was advised that she had a professional responsibility to supervise her students at all times, that leaving students unsupervised was a violation of school and state rules and regulations, and that she was required to report to work on time. Ms. Cohen was told that if an emergency requiring her to leave her class unsupervised arose, she was to notify the administrator so that supervision could be arranged. Additionally, she was advised that future incidents of this nature would result in a recommendation for further disciplinary action. On January 19, 1990, Ms. Cohen left her students unsupervised. During this unsupervised period, one child allegedly sexually abused another student. Upon returning to the classroom, Ms. Cohen learned of the incident and spanked the alleged perpetrator. Ms. Cohen did not report the incident. A conference-for-the record was held on February 5, 1990, concerning the January 19, 1990 incident and another alleged incident of lack of supervision. Ms. Cohen was again advised that she must provide adequate supervision of her students at all times and that if she had an emergency necessitating her absence, she was to contact the administrator. She was told that any reoccurrence of her failure to supervise her students would be deemed gross insubordination for which further disciplinary action would be recommended. Ms. Cohen was given a letter of reprimand. In February, 1990, Ms. Cohen was given an alternate work assignment through June, 1990 at Region IV Operations. The incident of January 19, 1990, was investigated by the Department of Health and Rehabilitative Services. The same incident was also investigated by the State Attorney's Office which brought charges against Ms. Cohen. As a result of these charges brought by the State Attorney, Ms. Cohen entered into a pre-trial advocacy program. A conference-for-the-record was held with Ms. Cohen on May 29, 1990, concerning the January 19, 1990, incident. On September 25, 1990, Ms. Cohen and the School Board entered into a Community Service Agreement, in lieu of suspension, dismissal, or demotion. The agreement included 160 hours of community service, tutoring students, and counseling students. The Florida Commissioner of Education filed an Administrative Complaint against Ms. Cohen as a result of the January 19, 1990, incident. The Administrative Complaint was resolved with a settlement whereby Ms. Cohen did not contest the allegations that Respondent failed to supervise students and spanked a student as set forth in the Administrative Complaint. As a result of the settlement agreement with Commissioner Castor, Ms. Cohen was given a written reprimand, her state teaching certificate was suspended for eight days, she was placed on three years probation, and was required to undergo psychological evaluation and counseling. Ms. Cohen received an overall unacceptable performance evaluation for the school year 1989-90. Ms. Cohen was assigned to the Morningside Elementary School (Morningside) for the 1990-91 school year due to the notoriety stemming from the January 19, 1990 incident. On June 11, 1991, Ms. Cohen accidently hit a student on the head with a stick. The student did not cry or tell Ms. Cohen that his head hurt. At the time of the incident, there were no physical signs on the student that he had been hit. Later a bump appeared on his forehead. When the student went home, he told his mother what happened. She called the police. The next day the student's mother, accompanied by a police officer, went to see the school principal. Ms. Cohen had not reported the accidental hitting of the student. The principal first learned of the accident when the parent and police officer met with the principal. As a result of the accidental hitting of the student, HRS, investigated the allegations and submitted a final report where the investigation was closed without classification. Ms. Cohen received an unacceptable performance evaluation for the school year 1990-91. Ms. Cohen was returned to Region IV Operations for alternate work assignment on August 29, 1991. In lieu of harsher disciplinary action, Ms. Cohen entered into another Community Service Agreement with the School Board on October 8, 1991. Ms. Cohen agreed to perform 200 hours of community service. On October 22, 1991, Ms. Cohen received a written reprimand relating to the June 11, 1991 incident. She was directed to implement appropriate procedures for dealing with inappropriate student behavior. Ms. Cohen was warned that further such incidents would be considered insubordination and would warrant further disciplinary action. After a psychological examination, Ms. Cohen was returned to Morningside for classroom duty in either December, 1991, or January, 1992, with conditions of employment which included, among other conditions, acceptable attendance at the work site and adherence to site directives, prescriptive directives and Code of Ethics stipulations. Ms. Cohen's performance began to improve and she received an acceptable performance evaluation for the 1991-92 school year. At the beginning of the school year 1992-93, the faculty at Morningside were advised that their students must be supervised and students were not to be left unattended. During the first week of school the teachers were given a faculty handbook, which was discussed at the first faculty meeting. The Morningside Elementary School Faculty Handbook provides the following pertinent directives: Discipline: It is the professional responsibility of the teacher to handle routine disciplinary problems. When it becomes necessary for a student to be removed from the classroom, the teacher should seek assistance from the principal, or his/her designee. No Student is to be removed from a classroom and placed in an area that is unsupervised by a qualified person. . . . (at page 1) . . . Supervision of Children: Children should be supervised by adults at all times. Teachers are responsible for walking children to and from physical education. In cases of emergencies, if you must leave students unattended, leave your door open and notify the teacher next door. (at page 3) . . . DISCIPLINE PLAN: Staff members are asked to have a discipline plan on file outlining steps taken to ensure understanding of class and school rules, procedures to be implemented when rules are not followed and positive reinforcement strategies. The county approved Assertive Discipline Plan is the preferred plan for all teachers. (at page 4). . . . PROCEDURES FOR HANDLING STUDENTS WHO ARE SENT TO THE OFFICE. In instances where the routine procedures for handling misbehaving students has not been effective, or if the incident is of a more serious nature, i.e., fighting, defiance of authority, vandalism, teachers will call upon the assistant principal, counselor or principal for assistance. (at page 5) . . . SOME DON'T'S: . . . Put child outside the classroom unsupervised. If a child needs to be excluded from class, send him/her to the office. (at page 7) . . . Accidents and Injury Reports - Student: When a child under your supervision is injured, notify the office and an accident report will be issued. This form must be filled in within 24 hours. (at page 28) At Morningside the teachers pick their students up at the physical education field at the beginning of the school day and escort them to the classroom. During January and February, 1993, Ms. Cohen was late to work three times, resulting in her students being late to class on those days. Ms. Cohen had prepared a discipline plan for the school year which plan provided for a student to have time out in another classroom as part of the progressive discipline. Her discipline plan was posted in her classroom, but had not been filed with the school administrator. Other teachers at Morningside had discipline plans which included time out for students in another classroom. The practice, however, was to not send a child alone. If the teacher or her assistant was unable to accompany the student, the teacher would send two other students to escort the child being disciplined to another classroom. Sometimes the teachers would call the office for assistance. On February 3, 1993, a student in Ms. Cohen's kindergarten class was coloring in a coloring book. Ms. Cohen took the coloring book away from the student. As a disciplinary measure, Ms. Cohen decided to send the student to another classroom for time out. She did not use the call button to alert the principal that she needed assistance. Ms. Cohen took the child to the door of their classroom and told the student to go to Ms. Holden's classroom. Ms. Holden's classroom was down the hall from Ms. Cohen's classroom. The doorway to Ms. Holden's classroom was recessed and could not be seen from Ms. Cohen's doorway. Ms. Cohen saw the student go down the hall but did not see her go into Ms. Holden's classroom. The student did not go into Ms. Holden's classroom, but stood outside and began to cry loudly. A school employee discovered the crying student alone in the hallway and took the student to the office. Morningside is located close to Biscayne Boulevard near an industrial district and a high crime area, known for prostitution and drug dealing. The school is designed with open corridors and no fencing around the school. Vagrants loiter around the school. On May 17, 1993, a conference-for-the-record was held to address the February 3, 1993, incident. Ms. Cohen received a performance evaluation for 1992-93 of unacceptable. On July 14, 1993, a pre-dismissal conference-for-the record was held with Ms. Cohen to address the pending dismissal action scheduled for the School Board meeting of July 21, 1993. At the July 21, 1993, meeting the School Board voted to suspend Ms. Cohen and commence dismissal proceedings against her. The Dade County Public Schools and the United Teachers of Dade have entered into a collective bargaining agreement (Labor Contract) which provides in pertinent part on page 15: ARTICLE VII - SAFE LEARNING ENVIRONMENT Section 1. Student Discipline 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. . . . E. The teacher shall have the authority to remove a seriously disruptive student from the classroom. In such cases, the principal or designee shall be notified immediately and the teacher shall be entitled to receive, prior to or upon the student's return to the classroom, a report describing corrective action(s) taken. Guidelines for implementing this provision shall be developed by each Faculty Council/Shared Decision-Making Cadre. At page 88, the Labor Contract provides in pertinent part: Section 3. Workday The employee workday shall be seven hours and five minutes for employees at the elementary level . . .
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Ms. Cohen guilty of incompetency, insubordination and willful neglect of duty, sustaining her suspension without pay, and dismissing her from employment from the School Board of Dade County without back pay. DONE AND ENTERED this 3rd day of February, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 3rd day of February, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4232 The following rulings are made on Petitioner's proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1: Accepted in substance. Paragraph 2: Accepted. Paragraph 3: Accepted in substance. Paragraph 4: The first three sentences are accepted in substance. The last two sentences are rejected as subordinate to the facts actually found. Paragraphs 5-6: Accepted in substance. Paragraph 7: Rejected as not supported by the greater weight of the evidence. Paragraphs 8-18: Accepted in substance. Paragraph 19: Rejected as unnecessary. Paragraph 20: Rejected as immaterial since Ms. Cohen received an acceptable performance evaluation for the year 1991-92. Paragraph 21: Rejected as unnecessary to the facts found. Paragraph 22: Accepted in substance. Paragraph 23: Rejected as unnecessary to the facts found. Paragraphs 24-26: Accepted in substance. Paragraph 27: The first sentence is accepted in substance. The second sentence with the exception of "hysterically" is accepted in substance. The portion of the last sentence that Ms. Cohen was assigned to the region office is accepted and the remainder is rejected as unnecessary. Paragraph 28: The first sentence is accepted in substance. The second sentence is rejected to the extent that Petitioner is inferring that Ms. Cohen did not see the child to the doorway of Ms. Cohen's classroom. Paragraph 29: Accepted in substance. Paragraph 30: The first two sentences are not supported by the greater weight of the evidence. The last sentence is accepted in substance. Paragraph 31: Rejected as argument. Paragraph 32: Accepted in substance. Paragraph 33: The first sentence is accepted in substance. The second sentence is rejected as unnecessary. The remainder of the paragraph is rejected as constituting argument. Paragraph 34: Accepted in substance. Paragraph 35: Rejected as constituting argument. COPIES FURNISHED: Madelyn P. Schere, Esquire Dade County School Board 1450 Northeast Second Avenue, Suite 301 Miami, Florida 33132 William Du Fresne, Esquire Du Fresne and Bradley, P.A. 2929 Southwest Third Avenue, Suite One Miami, Florida 33129 Octavio J. Visiedo, Superintendent Dade County School Board 1450 Northeast Second Avenue #403 Miami, Florida 33132-1308 Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Barbara J. Staros General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue Did the actions of Respondent, Joy Thompson (Ms. Thompson), during an altercation with student V.G.1 on April 13, 2010, violate Rules 6GX13-4A-1.21, 6GX13-4A-1.213, and 6GX13-5D-1.07 of the Miami-Dade County School Board (School Board)? If Ms. Thompson's actions violated the School Board's Rules, do the violations constitute just cause for termination or other disciplinary action?
Findings Of Fact The School Board is the constitutional entity charged with the duty to operate, control, and supervise the Miami-Dade County Public School System. Ms. Thompson has worked for the School Board for ten years. Throughout her employment she has worked at Ruth Owens Kruse School (Kruse) as a full-time School Security Monitor. This is a separate day school serving students with emotional and behavioral disabilities. Ms. Thompson has been a satisfactory employee for the ten years of her employment, except for the incident involved in this proceeding. She has received only one verbal warning. Under School Board rules, the warning is not formal discipline. The incident resulting in the warning did not generate a finding of probable cause to believe that Ms. Thompson had violated School Board rules. The School Board and her principals have never disciplined her. The basic objectives of Ms. Thompson's position include monitoring student activity "in promoting and maintaining a safe learning environment" and ensuring that appropriate standards of conduct are followed. Her job tasks and responsibilities include reporting serious disturbances and resolving minor altercations. The collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade (Collective Bargaining Agreement), Florida Statutes, State Board of Education rules published in the Florida Administrative Code, and the policies and procedures of the School Board govern Ms. Thompson and establish the terms and conditions of her employment. Ms. Thompson is an "educational support employee," as defined by section 1012.40(1)(a), Florida Statutes (2010)2 and is governed by the Collective Bargaining Agreement. The Collective Bargaining Agreement requires "just cause" for the discipline of support personnel. The Collective Bargaining Agreement provides that: Just cause 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 turpitude. Such charges are defined, as applicable, in State Board [of Education] Rule 6B-4.009. Rule 6B-4.009 of the State Board of Education defines incompetency, immorality, and gross insubordination. It defines willful neglect of duty continuing or constant intentional refusal to obey reasonable orders. The rule defines misconduct in office as violations of Florida Administrative Code Rules 6B- 1.001 and 6B-1.006 "so serious as to impair the individual's effectiveness in the school system." The Collective Bargaining Agreement affirms that the School Board and the Superintendent of Schools have exclusive management authority of the total school system. They have the exclusive right to suspend or terminate employees. The Collective Bargaining Agreement recognizes that "special education students" may experience impaired impulse control of such severity that the use of physical restraint is necessary. It also states: "The purpose of physical restraint is to prevent injury to persons or destruction of property. It is not to be used to 'teach the child a lesson' or as punishment." The School Board provided Ms. Thompson its policies and procedures, including its Code of Ethics and all the rules that she is charged in this proceeding with violating. Ms. Thompson has reviewed those policies. Knowing and abiding by them is a requirement of her job. As a School Security Monitor at Kruse, Ms. Thompson's duties included ensuring that the school environment was safe for the employees and children. All Kruse staff members must be able to work with students having emotional and behavioral disabilities. The staff must be able to de-escalate situations, maintain order, maintain discipline, and serve as role models for the students. If attacked, employees may defend themselves. The School Board has provided Ms. Thompson initial training and refresher training in "Safe Crisis Management." The School Board has also provided Ms. Thompson training in appropriate physical restraint techniques. Twelve clinicians work full-time at Kruse with students. They are clinical psychologists, clinical social workers, or art therapists. Each student has a clinician case manager. Kruse protocols require employees to call a clinician for assistance with behavioral problems the employee cannot manage. Room 22 at Kruse is the designated "Calm Room." It is for students who are agitated, serving detention, or serving "timeout" in the least restrictive area outside the classroom. The adjoining room, with a connecting door, is designated as the "Timeout Room or Back Room," divided into two areas. The "Timeout Room or Back Room" is a state-approved, specifically designed, and padded room for use by students at extreme behavioral levels. On April 13, 2010, Ms. Thompson's security post was down the hall from Room 22. V.G., an 18-year-old tenth grade Kruse student, was in the "Calm Room" serving a one day detention because she had skipped school the day before. Other students, including V.G.'s friend L.D., were in the room. The morning of April 13, 2010, Ms. Thompson had escorted V.G. to the "Calm Room." Around noon, Ms. Thompson passed the open door of the "Calm Room." Mr. Villarreal, the teacher in the "Calm Room," asked Ms. Thompson to stay in the "Calm Room" while he stepped out for a few minutes. Ms. Thompson agreed and took a seat at a desk at the back of the room. V.G. was sitting near the front of the room. She was talking and misbehaving. She was not doing her work. V.G. was talking loudly to her friend L.D. across the room and to other students. There were three other School Security Guards in the room at the time. Ms. Thompson directed V.G. to turn around and be quiet. V.G. ignored her and continued talking across the room to L.D. She talked back to Ms. Thompson repeatedly and was verbally abusive. V.G. said, "Bitch, I am not doing it." V.G. continued to talk and be insulting and combative. Ms. Thompson continued to tell V.G. to be quiet and turn around. But as Ms. Thompson grew upset, she told V.G. that she had a "fat ass." Ms. Thompson also told V.G. "that's why your boyfriend doesn't love you and that's why; you're fat." The argument continued and escalated with V.G. and Ms. Thompson insulting each other. Each called the other a "fat bitch" and other names several times. Ms. Thompson grew increasingly upset and walked up to V.G. saying that she was taking V.G. to the "Back Room." Another School Security Guard, Mr. Rojas joined Ms. Thompson to escort V.G. to the "Back Room." At any time, Ms. Thompson could have disengaged from her argument with V.G. and let Mr. Rojas and the other School Security Guards in the room handle the problems V.G. was creating. She also could have called a clinician for assistance. She did neither. Ms. Thompson did not disengage. She continued yelling and arguing with V.G. and followed Mr. Rojas and V.G. into the "Back Room." She was upset by the insults and because students were seeing V.G. be disrespectful to her. Ms. Thompson did not need to follow V.G. and Mr. Rojas into the "Back Room." In her anger, Ms. Thompson pushed past Mr. Rojas and punched at V.G. She grabbed V.G.'s hair, and V.G. grabbed hers. They fought until the other School Security Guards separated them. In the struggle, Ms. Thompson scratched V.G.'s face and neck, leaving light marks. She also bruised V.G.'s arms. Ms. Thompson left the area. As she left, Ms. Thompson grabbed V.G.'s purse and threw it in the trash. Leaving the area of the "Calm Room," Ms. Thompson passed school psychologist Ana San Roman. Ms. Thompson was disheveled and visibly agitated. As the two passed each other, Ms. Thompson said to Ms. San Roman: "I finally got that bitch." Her exclamation demonstrated that the altercation involved personal feelings about V.G. not just the professional issues presented by the events of the day. Ms. Thompson's altercation with V.G. was not part of an effort to prevent injury to person or damage to property. It was the result of Ms. Thompson's frustration and anger and Ms. Thompson's desire to demonstrate to V.G. that she could not show Ms. Thompson disrespect. After the incident, Ms. Thompson completed a required form called a Student Case Management Referral. In the form Ms. Thompson stated that she attempted to perform an approved restraint on V.G. But, at the hearing, Ms. Thompson testified that V.G. attacked her. She did not claim to have attempted to perform an approved restraint. V.G.'s account of the fight on the day it occurred and at hearing are consistent, albeit more colorful in testimony. The inconsistency of Ms. Thompson's testimony with her report on April 13, the greater consistency of V.G.'s testimony with her report, and the testimony of Ms. San Roman are significant factors resulting in determining that Ms. Thompson's account is not as credible as V.G.'s. The "Do's and Dont's [sic]" list for interventions with students at Kruse identifies the following behaviors that escalate difficulties with students as "don'ts": raising voice, yelling, having the last word, using "put downs," and using physical force. In the course of her altercation with V.G., Ms. Thompson engaged in every one of the behaviors. After investigating the incident, the office of the Miami-Dade County Public Schools Superintendent advised Ms. Thompson, by letter dated October 5, 2010, that it intended to recommend her suspension and termination to the School Board for violation of Rules 6GX13-4A-1.21, 6GX13-4A-1.213, and 6GX13- 5D-1.07 of the Miami-Dade County School Board. At its October 13, 2010, meeting the School Board suspended Ms. Thompson without pay and began dismissal proceedings against her for violation of the rules. The School Board's October 15, 2010, letter advising Ms. Thompson of the decision stated that it was "for just cause, including, but not limited to" violation of School Board Rules 6GX13-4A-1.21, 6GX13-4A-1.213, and 6GX13- 5D-1.07. School Board Rule 6Gx13-4A-1.21 provides in relevant part: All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the workplace is expressly prohibited. School Board Rule 6Gx13-5D-1.07 provides in relevant part: The administration of corporal punishment in Miami-Dade County Public Schools is strictly prohibited. Miami-Dade County Public Schools has implemented comprehensive programs for the alternative control of discipline. These programs include, but are not limited to, counseling, timeout rooms, in-school suspension centers, student mediation and conflict resolution, parental involvement, alternative education programs, and other forms of positive reinforcement. In addition, suspensions and/or expulsions are available as administrative disciplinary actions depending upon the severity of the misconduct. School Board Rule 6Gx13-4A-1.213, Code of Ethics, provides in part: As stated in the Code of Ethics of the Education Profession in Florida (State Board of Education Rule 6B-1.001): * * * The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity. Aware of the importance of maintaining the respect and confidence of one's colleagues, students, parents, and other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct. * * * Each employee agrees and pledges: To abide by this Code of Ethics, making the well-being of the students and the honest performance of professional duties core guiding principles. To obey local, state and national laws, codes and regulations. To support the principles of due process to protect the civil and human rights of all individuals. To treat all persons with respect and to strive to be fair in all matters. To take responsibility and be accountable for his or her actions. To avoid conflict of interest or any appearance of impropriety. To cooperate with others to protect and advance the District and its students. To be efficient and effective in the delivery of job duties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final Order finding that there is just cause to terminate Ms. Thompson's employment. DONE AND ENTERED this 29th day of April, 2011, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 29th day of April, 2010.
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 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.
The Issue Whether just cause exists for Petitioner, DeSoto County School Board (School Board), to suspend Respondent without pay, and terminate her employment as an Exceptional Student Education (ESE) teacher.
Findings Of Fact Parties and Relevant Policies The School Board is charged with the duty to operate, control, and supervise public schools in DeSoto County. Art. IX, § 4(b), Fla. Const. (2018). This includes the power to discipline instructional staff, such as classroom teachers. §§ 1012.22(1)(f) and 1012.33, Fla. Stat. Respondent is an ESE classroom teacher at DeSoto County High School (High School). Although Respondent has been teaching for 23 years, she has only been an ESE classroom teacher for the School Board since 2016. Superintendent Cline is an elected official who has authority for making School Board personnel decisions. His duties include recommending to the School Board that a teacher be terminated. § 1012.27(5), Fla. Stat. David Bremer (Principal Bremer) was the principal at the High School at all times relevant to these proceedings, and Cynthia Langston served as the Assistant Principal. The parties’ employment relationship is governed by School Board policies, Florida laws, Department of Education regulations, and the Collective Bargaining Agreement (CBA) entered into by the School Board and the Desoto County Educators Association, a public union. The CBA relevant to this action was effective July 1, 2018, through June 30, 2021. The School Board employed Respondent on an annual contract basis. “Annual contract” means an employment contract for a period of no longer than one school year which the School Board may choose to award or not award without cause. § 1012.335(1)(a), Fla. Stat. The testimony at the hearing and language in the CBA establish that the annual contract of a teacher, who has received an indication he or she “Needs Improvement” or is placed on an improvement plan, is not eligible for automatic renewal. In these situations, the superintendent has discretion regarding whether to renew that teacher’s annual contract. See CBA, Art. 8, § 16. Article 22, section 8 of the CBA provides for progressive discipline for teachers in the following four steps: (1) verbal reprimand (with written notation placed in the site file); (2) written reprimand (filed in personnel and site files); (3) suspension with or without pay; and (4) dismissal. The CBA makes clear that progressive discipline must be followed, “except in cases that constitute a real immediate danger to the district or [involve a] flagrant violation.” February 11, 2019 (the February 11 Incident) This proceeding arises from an incident that occurred on February 11, 2019, after lunch in Respondent’s ESE classroom. The School Board alleges Respondent intentionally threw a foam or Nerf-type football at a student in a wheelchair when he failed to follow her instructions, and the football hit the student. Respondent asserts she playfully threw stress ball-type footballs up in the air and one accidently bounced and hit A.R.’s chair. Respondent’s classroom at the High School consisted of ten to 12 ESE students during the 2018-2019 school year. These students had special needs and some were nonverbal. On the day of the incident, there were nine or ten students in Respondent’s classroom, including A.R., a high school senior with cerebral palsy. Respondent kept small foam or Nerf-type footballs in her desk drawer. The testimony at the hearing established Respondent had used them in the classroom to get the students’ attention in a playful fashion. In addition to Respondent, four paraprofessionals assisted the students in the classroom. Of the four, only three were in the classroom during the February 11 incident: Ms. Walker, Mr. Blevins, and Ms. Murray. Respondent was responsible for A.R. while in her classroom. A.R. uses a wheelchair or a walker to get around, but has a special chair-desk in Respondent’s classroom. A.R. had difficulty in the classroom setting. Specifically, it was noted at the hearing that he has trouble processing what is happening around him, and that he needs help simplifying tasks that require more than one step. Although A.R. is verbal, he is slow to respond. A.R. was described as a “repeater” because he repeats things that others say, smiles if others are smiling, or laughs if others are laughing. In conversation, A.R. would typically smile and nod, or say “yes.” Ms. Walker’s and Mr. Blevins’s recollections of the February 11 incident were essentially the same. They testified that on the afternoon of February 11, 2019, the students returned to Respondent’s classroom from art class. They were excited and did not settle down for their lesson. As a result, Respondent became frustrated and yelled at the students to get their pencils so they could start their work. Respondent asked A.R., who was in his special chair-desk, to obtain a pencil. A.R. did not respond immediately and Respondent told him to get his pencil or she would throw a football. Ms. Walker’s and Mr. Blevins’s testimony established that, at this point, Respondent threw either one or two blue, soft, Nerf-type footballs approximately six inches long at A.R., who was looking in another direction. One of these blue footballs hit A.R. either in the side of his torso or back. A.R. began flailing his arms while he was in his chair-desk, and the entire room became silent. Ms. Murray was not facing A.R. during the incident, but she heard Respondent yell at A.R. to pay attention. She did not see Respondent throw the balls and was unsure if any of the balls made contact with A.R. After the incident, however, she saw two balls on the floor, picked them up, and returned them to Respondent. Ms. Murray did not recall the color of the footballs, and could only describe them as “squishy.” Respondent testified that A.R. was not paying attention, and she admits she told him she was going to toss the footballs if he did not get his pencil. She denies throwing a blue football at A.R., but instead claims she threw two smaller foam brown footballs. She denied any of the balls hit him, but rather, explained one of the brown footballs bounced off the floor and hit A.R.’s chair-desk; the other fell on her desk. The undersigned finds the testimony of Respondent less credible than the paraprofessionals’ testimony. First, all of the evidence established Respondent clearly threw footballs after A.R. did not respond to her instruction, and Respondent knew (or should have known) that A.R. was incapable of catching the football or responding positively. Second, Respondent’s version of what happened to the balls after she threw them is inconsistent with the testimony of Ms. Walker and Mr. Blevins that one ball hit A.R. Respondent’s testimony that one ball fell on her desk is also inconsistent with Ms. Murray’s testimony that she picked up two balls off the floor. Finally, Respondent’s version of events is not believable in part, because neither the brown nor the blue football entered into evidence had sufficient elasticity (or bounciness) to have acted in the manner described by Respondent. Based on the credible evidence and testimony, the undersigned finds Respondent intentionally threw the blue larger footballs at A.R. knowing he would not be able to catch them, one ball hit A.R. in the side or back, and A.R. became startled from being hit. There was no evidence proving A.R. was physically, emotionally, or mentally harmed. Report and Investigation of the February 11 Incident Both Ms. Walker and Mr. Blevins were taken aback by Respondent’s behavior. Ms. Walker was concerned that A.R. did not realize what was happening, and that the rest of the students were in shock. She did not think a teacher should throw anything at any student. Mr. Blevins similarly stated he was stunned and did not believe Respondent’s conduct was appropriate, especially because A.R. was in a wheelchair. At the hearing, Respondent also admitted it would be inappropriate to throw anything at a student even if it was just to get his or her attention. Both Ms. Walker and Mr. Blevins attempted to report the incident immediately to the High School administration. Ms. Walker left the classroom to report the incident to Principal Bremer, who was unavailable. Ms. Walker then reported to Assistant Principal Langston what she had seen happen to A.R. in Respondent’s classroom. During this conversation, Ms. Walker was visibly upset. After listening to Ms. Walker, Assistant Principal Langston suggested she contact the Department of Children and Families (DCF). Ms. Walker used the conference room phone and immediately contacted the abuse hotline at DCF. As a result, DCF opened an abuse investigation into the incident. Meanwhile, Mr. Blevins had also left Respondent’s classroom to report the incident to Assistant Principal Langston. When he arrived, he saw that Ms. Walker was already there and assumed she was reporting what had happened. Therefore, he did not immediately report anything. Later that day, Assistant Principal Langston visited Respondent’s classroom, but did not find anything unusual. She did not speak to Respondent about the incident reported by Ms. Walker. The next day, February 12, 2019, Assistant Principal Langston obtained statements from the paraprofessionals, including Ms. Walker and Mr. Blevins in Respondent’s classroom regarding the February 11 incident. These statements were forwarded to Superintendent Cline, who had been advised of the incident and that DCF was conducting an investigation. It is Superintendent Cline’s practice to advise administrators to place a teacher on suspension with pay during an investigation. If the teacher is cleared, the administrator should move forward with reinstatement. In this case, Principal Bremer met with Respondent on February 12, 2019, and informed her she would be placed on suspension with pay while DCF conducted its investigation into the incident. DCF closed its investigation on February 19, 2019. No one who conducted the DCF investigation testified at the hearing, and the final DCF report was not offered into evidence. Rather, the School Board offered a DCF document titled “Investigative Summary (Adult Institutional Investigation without Reporter Information).” This document falls within the business records exception to the hearsay rule in section 90.803(6), Florida Statutes, and was admitted into evidence. The undersigned finds, however, the Investigative Summary unpersuasive and unreliable to support any findings. The document itself is a synopsis of another report. Moreover, the document is filled with abbreviations and specialized references, but no one with personal knowledge of the investigation explained the meaning of the document at the final hearing. Finally, the summary indicates DCF closed the investigation because no physical or mental injury could be substantiated. On February 21, 2019, Principal Bremer notified Superintendent Cline that DCF had cleared Respondent, but did not provide him with a copy of the DCF report or summary. Principal Bremer did not have to consult with Superintendent Cline regarding what action to take regarding Respondent. Based on the DCF finding that the allegation of abuse or maltreatment was “Not Substantiated,” Principal Bremer reinstated Respondent to her position as an ESE teacher, but still issued her a written reprimand. The reprimand titled “Improper Conduct Maltreatment to a Student” stated in relevant part: I am presenting you with this written reprimand as discipline action for your improper conduct of throwing foam balls at a student. On February 11, 2019 it was reported you threw a football at [A.R.], a vulnerable adult suffering from physical limitations. As a result of this action, Florida Department of Children and Families (DCF) were called to investigate and you were suspended until the investigation was complete. Although maltreatment of [sic] Physical or Mental Injury was not substantiated, DCF reported three adults in the room witnessed you throwing at least two foam balls at [A.R.] because he did not get a pencil on time. Apparently [A.R.] did not follow through with the direction provided by you and you became frustrated for that reason. I am by this written reprimand, giving you an opportunity to correct your improper conduct and observe Building rules in the future. I expect you will refrain hereafter from maltreatment to a student and fully meet the duties and responsibilities expected of you in your job. Should you fail to do so, you will subject yourself to further disciplinary action, including a recommendation for immediate termination and referral of the Professional Practices Commission. On February 25, 2019, Respondent returned to her same position as an ESE teacher, in her same classroom, with the same students, including A.R. Superintendent’s Investigation and Recommendation to Terminate Meanwhile, Superintendent Cline requested a copy of the report of the investigation from DCF and contacted the DCF investigator. Based on his review of what was provided to him and his conversation with DCF, he concluded A.R. may still be at risk. Superintendent Cline found Respondent’s actions worthy of termination because “it is unacceptable to throw a football at a student who has cerebral palsy, and thus, such conduct violates” state rules and School Board policy. School Board PRO at 15, ¶ 72. There was no credible evidence at the hearing that A.R. or any other student was at risk from Respondent. The School Board failed to establish at the hearing what additional information, if any, Superintendent Cline received that was different from the information already available to him, or that was different from the information provided to Principal Bremer. There was no justification or plausible explanation as to why Superintendent Cline felt the need to override Principal Bremer’s decision to issue a written reprimand for the violations. On March 6, 2019, Superintendent Cline issued a letter suspending Respondent without pay effective March 8, 2019, and indicating his intent to recommend to the School Board that it terminate Respondent’s employment at its next regular board meeting on March 26, 2019. Attached to the letter were copies of the Investigative Summary, Florida Administrative Code Rule 6A- 10.081, and School Board Policy 3210. This letter was delivered by a School Board’s human resources employee to Respondent on March 8, 2019. Respondent did not return to the classroom for the remainder of the school year. Respondent’s Disciplinary History Prior to the February 11 incident, Respondent had received an oral reprimand for attendance issues on December 21, 2018. On February 6, 2019, Assistant Principal Langston met with Respondent to address deficiencies in Respondent’s attendance, lesson plans, timeliness of entering grades, and concerns with individual education plans for her ESE students. At that meeting, Assistant Principal Langston explained Respondent would be put on an improvement plan and that if Respondent did not comply with the directives discussed at the meeting, she would be subject to further discipline, including termination. Although the plan was memorialized, Respondent was not given the written plan until after she returned from the suspension. Ultimate Findings of Fact Respondent intentionally threw two footballs in an overhand manner at A.R., a student who could not comprehend the situation and could not catch the balls. She did so either in an attempt to garner the student’s attention or out of frustration because he was not following directions. Respondent did not violate rule 6A-10.081(2)(a)1., because there was no evidence the incident exposed A.R. to harm, or that A.R.’s physical or mental health or safety was in danger. Similarly, Respondent did not violate School Board Policy 3210(A)(1). Respondent violated rule 6A-10.081(2)(a)5., which prohibits a teacher from “intentionally expos[ing] a student to unnecessary embarrassment or disparagement.” The evidence established Respondent’s action in throwing the ball was intentional and was done to embarrass or belittle A.R. for not following her directions. For the same reason, Respondent’s conduct violated School Board Policy 3210(A)(5). Respondent violated rule 6A-10.081(2)(a)7., which states that a teacher “[s]hall not harass or discriminate . . . any student on the basis of . . . handicapping condition . . . and shall make reasonable effort to assure that each student is protected from harassment.” Again, the credible evidence established the act of a teacher throwing any item at any student, especially one who requires a wheelchair, is inappropriate and would be considered harassment on the basis of a student’s handicap. Similarly, Respondent violated rule 6A-10.081(2)(c)4., which requires that a teacher “not engage in harassment or discriminatory conduct which unreasonably interferes . . . with the orderly processes of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment; and, further, shall make reasonable effort to assure that each individual is protected from such harassment or discrimination.” For the same reasons listed above, Respondent’s conduct also amounts to a violation of School Board Policy 3210(A)(7). There was no evidence this conduct constituted a real immediate danger to the district, nor does it rise to the level of a flagrant violation. Therefore, the School Board must apply the steps of progressive discipline set forth in article 22, section 8 of the CBA. Pursuant to the terms of the CBA, Respondent should have received a written reprimand for the February 11 incident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the DeSoto County School Board: enter a final order finding Respondent violated Florida Administrative Code Rule 6A-10.081(2)(a)5., and (2)(c)4.; and corresponding School Board Policy 3210(A)(5) and (7); rescind the notice of termination dated March 6, 2019, and, instead, reinstate Principal Bremer’s written reprimand dated February 25, 2019; and to the extent there is a statute, rule, employment contract, or Collective Bargaining Agreement provision that authorizes back pay as a remedy for Respondent’s wrongful suspension without pay, Respondent should be awarded full back pay and benefits from March 8, 2019, to the end of the term of her annual contract for the 2018-2019 school year. See Sch. Bd. of Seminole Cnty. v. Morgan, 582 So. 2d 787, 788 (Fla. 5th DCA 1991); Brooks v. Sch. Bd. of Brevard Cnty., 419 So. 2d 659, 661 (Fla. 5th DCA 1982). DONE AND ENTERED this 13th day of August, 2019, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 13th day of August, 2019. COPIES FURNISHED: Mark E. Levitt, Esquire Allen, Norton & Blue, P.A. Suite 100 1477 West Fairbanks Avenue Winter Park, Florida 32789 (eServed) Mark Herdman, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761-1526 (eServed) Adrian H. Cline, Superintendent The School District of DeSoto County 530 LaSolona Avenue Post Office Drawer 2000 Arcadia, Florida 34265-2000 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
