The Issue The issue in these cases is whether, as the district school board alleges, a teacher and a paraprofessional physically abused, mistreated, or otherwise behaved inappropriately towards one of their special-needs students.
Findings Of Fact The Miami-Dade County School Board ("School Board" or the "district"), Petitioner in these cases, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. At all times relevant to these cases, Respondent Kamla C. Bhagwandin ("Dr. B.") was employed as an exceptional student education ("ESE") teacher in the Miami-Dade County public schools, a position which she had held for approximately 17 years. Dr. B. has earned a bachelor's degree in special education, a master's degree in English as a second language ("ESOL"), and a doctoral degree in educational leadership and organization. When the 2017-2018 school year started, Dr. B. was a special education teacher at South Dade Middle School ("SDMS"), where she taught a self-contained class containing 19 ESE students. At the beginning of the 2017-2018 school year, Respondent Darlene Taylor ("Taylor"), a paraprofessional, was assigned to Dr. B.'s classroom. Because Dr. B. had a relatively large class with nearly three times the number of students in other ESE classes at SDMS, substitute teachers were routinely assigned Dr. B.'s classroom to provide assistance. Thus, three adults typically were present in Dr. B.'s classroom during school hours. Tony Bermudez ("Bermudez") was one of the substitute teachers assigned to work in Dr. B.'s classroom during the 2017- 2018 school year. He was assigned to Dr. B.'s classroom about five times, his last day with her being August 31, 2017. That is the date of the event at issue, to which Bermudez, who has accused Dr. B. and Taylor of child abuse, is the district's only witness. Before turning to the disputed event, which occurred at the start of the school day, it will be useful to look at what happened immediately before and after the incident in question. At SDMS that year, the first bell summoning the students to class rang at 8:30 a.m., and the last bell at 8:35 a.m. Dr. B.'s regular practice was to escort her students from the cafeteria to the classroom between 8:30 a.m. and 8:35 a.m. It is undisputed that this is what she did on August 31, 2017, and that, by 8:35 a.m., Dr. B. and her students, including a 12-year-old autistic student named D., were in the classroom. Therefore, if anything unusual happened to D. that morning, as alleged, it happened no earlier than 8:30 a.m., and most likely after 8:35 a.m. It is undisputed that, on the morning of August 31, 2017, Bermudez informed Dr. B. (untruthfully) that he needed to go to the bathroom because his stomach was upset. He then left the classroom and proceeded directly to the office of Elizabeth Rodriguez, who he mistakenly thought was an assistant principal, but who was actually the school's test chairperson and ESOL chairperson. Ms. Rodriguez testified credibly at hearing that she had just returned to her office, to which she usually repaired after the last bell rang at 8:35 a.m., when Bermudez arrived. Bermudez came to her, she explained, "in the morning right after we had let the students into the classrooms." Later that same day, after Bermudez had accused Dr. B. and Taylor of wrongdoing, Ms. Rodriguez wrote and signed a statement describing her encounter with Bermudez. This contemporaneous statement is consistent with her final hearing testimony, but since it was written before any dispute about the time of Bermudez's visit had arisen, Ms. Rodriguez's initial account is particularly probative on that point. When the matter was fresh in her mind and she had no reason to hedge on the time, Ms. Rodriguez recorded the following: At approximately 8:30 a.m., Mr. Bermudez asked to speak to me in my office. (He was under the impression I was one of the Assistant Principals). He stated he wanted to inform the [person who assigns substitute teachers that] he no longer wanted to be assigned to the [special education] unit because of the aggressiveness. I asked him if the students were aggressive and he stated, "No, it's the adults". He elaborated by stating he had witnessed some things that were very upsetting and he had discussed it with his wife, who is also a teacher at another school and she advised him to speak to the principal. I assured him I would speak to the principal and to the ESE Program Specialist . . . on his behalf. I advised him to go back to the classroom and we would address his concern. By the time of the hearing, Ms. Rodriguez must have known that her contemporaneously recorded recollection of Bermudez's having approached her at "approximately 8:30 a.m." was not helpful to her employer's case against Dr. B. and Taylor because it leaves little or no time for anything untoward to have occurred in Dr. B.'s classroom that morning. Under questioning by the district's counsel, Ms. Rodriguez did her best to stretch the "approximately 8:30 a.m." time frame as wide as it would go, first to 8:40 a.m., and finally to "possibly" 9:00 a.m. Given her unqualified testimony about encountering Bermudez right after the students had gone to class (between 8:30 and 8:35 a.m.), however, and the contemporaneous statement that he had shown up in her office at "approximately 8:30 a.m.," the undersigned finds that Bermudez met with Ms. Rodriguez no later than 8:40 a.m. on August 31, 2017. This means that if Dr. B. and Taylor abused D., as Bermudez claims, then they did so in a hurry, for the students were not let into Dr. B.'s classroom until around 8:35 a.m., and Bermudez needed a minute or two to get from the classroom to Ms. Rodriguez's office. Ms. Rodriguez brought Bermudez to the principal, John Galardi, according to the latter, whose testimony on this point is credible, albeit inconsistent with Ms. Rodriguez's written statement. After Bermudez told Mr. Galardi that he had witnessed Dr. B. and Taylor abuse a student, Mr. Galardi called the school police department, which dispatched officers and detectives. Meantime, Mr. Galardi asked Bermudez to write a statement describing the incident he claimed to have observed. Bermudez wrote a statement, the first of several he would draft that day. When the detectives arrived, they asked Mr. Galardi if there were any surveillance videos that might have captured the incident. Mr. Galardi directed a custodian to retrieve the video from the closed-circuit TV camera in the hallway near Dr. B.'s classroom. The custodian brought out a video, which the detectives watched with Mr. Galardi. One of the detectives made a video recording on his cellphone of the monitor to which the surveillance video was being transmitted. This cellphone video, which runs about 67 seconds, is the footage that the district offered into evidence at hearing. The actual surveillance video was not offered. No information concerning its whereabouts was provided. Neither the custodian nor the detective testified at hearing about the circumstances surrounding the making of the cellphone video.1/ Putting aside the obvious chain of custody issues with the video, the quality of the derivative image is very poor. (Imagine using your cellphone to film the movie you're watching on TV, and then viewing the movie on your phone, and you'll get the picture.) Crucially, the detective cropped the image so as to eliminate the date and time stamp that, according to Mr. Galardi, the original surveillance video displayed. The thing that jumps out at the fact-finder when he watches this dubious video is that it not only fails to corroborate Bermudez's initial written statement, it actually contradicts him (if we assume, as the district contends, that the video depicts some portion of the event he claims to have witnessed). Although the record is silent as to when Bermudez first saw the video, there is little doubt (and the undersigned finds) that he had not viewed the recording before writing his initial statement. As the video begins, two figures (identified as Dr. B. and D.) emerge into the hallway, having exited the classroom, whose door——in a recessed entryway——is out of view. There is no indication of distress or discomfort in either individual's movements or posture, nothing consistent with a commotion or struggle. Although the video does not have an audio track, D.'s body language gives no suggestion that she is screaming or crying; rather, she appears to be composed, compliant, and unharmed. The pair does not remain outside the door to the classroom. Their faces are not visible. Dr. B. and D. immediately turn away from the camera, and walk calmly but purposefully down the hallway, towards glass doors at the far end. The two are walking side by side, and their body language suggests that Dr. B. is escorting D. The teacher might have her hand on the student's back, but that is not clear. What is clear is that Dr. B. is not pushing, pulling, or forcing D. to move. Before reaching the glass doors, Dr. B. and D. turn left, and it looks like they are about to enter a classroom. At this point, they are far from the camera, and the image quality is so poor that it is not possible to make out in detail what happens next. We can see, however, that Dr. B. and D. do not go into a classroom. Instead, they back up and return to the hallway, where they face each other for a few moments. There seems to have been a disturbance of some sort——perhaps D. has become uncooperative. Due to the graininess of the image and the distance of the subjects from the camera, the figures on the screen are practically silhouettes; they have their arms outstretched towards one another and might be holding hands. The image resembles that of a parent in a grocery store explaining to her pleading child that she cannot have a bag of cookies. There is nothing happening on screen that looks like physical abuse or violence of any kind. While this is going on, a third person appears, entering the hallway through the glass doors that are behind Dr. B. and D. in relation to the video surveillance camera. This person has been identified as Taylor. The arrival of Taylor prompts D. to hurry back to Dr. B.'s classroom, nearly breaking into a run. Dr. B. and Taylor follow, but at a normal walking speed. D. beats them to the classroom, obviously, and dashes into the recessed entryway, which takes her out of our view for more than ten seconds, as Dr. B. and Taylor make their way to the room. When the adults turn to enter the classroom, we lose sight of them as well, but for a split second we can tell that all three individuals are in the recessed entryway, probably because the door is locked. Suddenly, D. walks backwards into the hallway, as if to leave, and one of the adults (it is impossible to see which, as they are both off camera) promptly reaches out and takes hold of D. around the shoulder area. The district argues that the video shows Dr. B. grabbing D. by the head and jerking the student into the room. The undersigned rejects the district's interpretation of the blurry image because (a) the teacher appears more likely to have found purchase for her grip in D.'s collar and (b) D.'s head does not react as though she were being pulled by, e.g., the hair. The district further argues that, on the film, D. can be seen bending sharply at the waist, forming a 90-degree angle with her upper and lower body, proving that she was jerked with considerable force. Again, however, the undersigned rejects the district's interpretation of the ambiguous image. It must be stressed that this happens very fast and the video quality is very poor. As a result, people will see what they want to see. No doubt, therefore, some who see the video will agree with the district that someone yanked D. by the head. But the image does not persuade the undersigned that such is more likely than not what happened. Furthermore, Bermudez's hearing testimony, which for the first time included the detail that D. was bent over at a 90-degree angle, is unreliable, and not only because (as will be seen) Bermudez could not keep his story straight. It is highly unlikely that Bermudez could have seen this particular transaction, because he was in the classroom when it occurred, while D. and the adults were outside, in the entryway and hallway; indeed, the classroom door (although unseen in the video) was probably still closed. The undersigned infers that one (but not the only) reason Bermudez has given so many different versions of the disputed event is that he has been trying to tailor his testimony to the video. At any rate, based on the video, which is low-quality evidence, to be sure, but is at least more credible than Bermudez, the undersigned finds it to be as likely as not that D. instinctively bent forward under her own power, as opposed to someone else's forceful tug, because doing so probably would have improved her ability to resist, if she were inclined to struggle. Bending quickly towards the teacher would keep D.'s weight in front of her and her body lower to the ground, likely improving her balance, and also might loosen the teacher's grip. The main point, however, is that the video, with all of its limitations, is nowhere close to the knockout punch the district thinks it is. What it shows, at the end, is a teacher making a reasonable effort to stop a student from escaping, which could lead to a dangerous situation. This is what teachers are supposed to do. The district argues that this brief contact with D. constituted a manual physical restraint, which Dr. B. failed to report in accordance with district policy and state law. This argument is rejected. If the term "manual physical restraint" were interpreted so liberally as to include such incidental contact as this, which (for all that can be seen in the video) was reasonably intended to prevent a student from bolting, and which restricted the student's movement for about a second, the reporting burden would be unjustifiably heavy, and (worse) would create a perverse disincentive to reasonable protective intervention. Having reviewed what happened before and after the incident in question, and having looked at the video, the time has come to focus on Bermudez's many accounts of what he claims to have seen. As mentioned, Bermudez prepared three written statements on August 31, 2017. The first, though dated, does not reflect the time that it was drafted. Presumably, however, this initial statement was written in the morning, only a short time after the events described therein. The second states that it was signed by Bermudez at 12:50 p.m., less than four hours later. The third statement is typewritten and (as relevant to this case) is substantially similar to the second statement. On December 27, 2017, nearly four months after the disputed incident, Bermudez gave a deposition in the criminal case that the state brought against Dr. B. and Taylor. He also testified at their trial, but the transcript was unavailable for use in the instant hearing.2/ Finally, Bermudez testified at the final hearing of this matter. The following table summarizes the material portions of Bermudez's ever-changing testimony: Fist Written Statement 08/31/17 Second and Third Written Statements 08/31/17 Deposition 12/27/17 Final Hearing Testimony 02/19/18 No mention of D. screaming for 20-30 minutes about headphones. No mention of D. screaming for 20-30 minutes about headphones. For about a minute after the students entered the classroom, from the cafeteria, nothing unusual happened; it was a regular day. Then Dr. B. saw D. with headphones, walked up to D., and yanked the headphones away, which made D. act up and scream, for 20 to 30 minutes. "It had to be more than twenty, thirty minutes, around that time frame." T.B. had just gotten to the classroom. Dr. B. and Taylor were coming back from the cafeteria with the students. D. was complaining, and screaming intensely, "Headphones, headphones," over and over, for 20 to 30 minutes. D. was sitting down and never stood up. [Later, T.B. changes this to "she was maybe, like——kinda like in between, like between sitting and standing, kinda like."] Taylor wasn't in the classroom. Dr. B. and Taylor grabbed D. by the neck and threw her into a closed door with extreme force. No mention of D. being dragged out of the classroom. No mention of Dr. B. dragging D. by the ear. "This [is what] occurred today at approximately 9 a.m."] D. refused to sit down, so Dr. B. pulled D. by the hair and slammed her into the door. Dr. B. dragged D. out of the classroom. No mention of Dr. B. dragging D. by the ear. Taylor left with one of the kids. She returned with the child at the time Dr. B. picked up D. by the shirt. Taylor slammed or "bumped" the other child she was with (not D.) against the door. Dr. B. pulled D. by the shirt and slammed her face against the door. Then she dragged D. by the ear out the door. Taylor, who had reentered the classroom, remained inside, just sitting in her chair, waiting for Dr. B. to return. After 20-30 minutes, Dr. B. approached D. and told her to get up. Dr. B. grabbed D. by the sleeve and hair, pulled her out of the chair, and dragged her towards the door. Dr. B. slammed D.'s face against the door. Then, Dr. B. grabbed D. by her ear, and pulled D. outside by the ear. No mention of Dr. B., Taylor, or D. being out of the classroom. Dr. B. closed the classroom door, and T.B. couldn't see them, but he could hear D. screaming and crying outside. T.B. could hear D. screaming from the other side of the door. Dr. B. and D. were out of the classroom, in hallway, and T.B. couldn't see them, but he could hear D. screaming, for a few minutes. [Later, T.B. defines a "few minutes" as meaning "two to seven minutes."] Dr. B. and Taylor dragged D. by the hair and threw her into a desk with great force. After a couple of minutes, Dr. B. opened the door, dragged D. into the classroom by her hair, and threw her onto the desk in a rough, abusive way. Taylor was in the room with T.B., texting on her phone. When Dr. B. reentered with D., after being out of the class for a minute or two, Dr. B. had D. by the back of D.'s shirt, not pulling but holding onto her. Dr. B. guided D. to her chair, and D. sat down. After a few minutes, they reentered the room. Dr. B. had D. by the hair, and D. was bent at the waist at a 90 degree angle. Taylor came in behind them. Dr. B. pulled D towards the chair. Then Dr. B. threw or slammed D. into her chair, and D. was crying. Taylor hit D. on the back of the head, hard. Taylor walked into the classroom and hit D. in the back of the head, in a rough and very violent manner. No mention of this in the deposition. T.B. testifies at hearing that he couldn't remember it then. While D. was at her desk, Taylor walked behind D., told her to shut up, and smacked her in the back of the head. The material discrepancies are plain to see. The undersigned will discuss a few. Starting with the first statement, notice that Bermudez's original account is very straightforward and has just three salient details: (i) Dr. B. and Taylor threw D. into the door; (ii) together, they threw D. into her desk; and (iii) Taylor, by herself, hit D. in the head. Notice, as well, that this statement, prepared right after the event supposedly occurred, places Dr. B. and Taylor together in the room for the entire relevant time, and they never leave the classroom with D. The video shows something else completely. Contrary to Bermudez's statement, Taylor was not, and could not possibly have been, present in the classroom before Dr. B. and D. emerged into the hallway, as shown at the beginning of the short clip. We know for certain that Taylor was not there because she shows up later in the video, entering through a door at the other end of the hallway. Yet, in his most contemporaneous statement, Bermudez gets this critical detail badly, undeniably wrong, saying that Taylor was not only there, but was an active participant to boot. Conversely, the only scene in the video that could possibly raise an eyebrow——when someone grabs D.'s collar to prevent her from escaping——is not mentioned in Bermudez's first statement. Given the striking irreconcilability of Bermudez's first statement and the video, the undersigned wonders how anyone looking at the video on the morning of August 31, 2017, could not have questioned Bermudez's veracity or inquired further as to whether the custodian had retrieved the correct video footage. By 12:50 p.m., however, Bermudez had begun to back and fill. The undersigned suspects that before writing the second statement, Bermudez had watched the video, or been told of its contents. Yet, the changes to his story are so ham-fisted, how could no one have noticed? In the revised statement, without explanation, Taylor is not present when Dr. B., alone, flings D. into the door and, later, onto her desk. Now, conveniently, Bermudez tells us that Dr. B. dragged D. out of the classroom, and that they were gone for a couple of minutes (approximately the length of the video clip). Taylor appears in time to hit D. on the back of the head, but she must return to the classroom to do so, as the video requires. Bermudez's story became richer with (inconsistent) details during the December 27, 2017, deposition, while omitting key elements of his original version(s). At hearing, forced to acknowledge the inconsistencies, Bermudez made excuses: he was nervous, was on vacation, wasn't prepared, and didn't have an attorney. These are not persuasive. Think about it. Bermudez was the only witness in a criminal trial that might have put two people behind bars, and he was too nervous and unprepared to testify truthfully? At the final hearing, Bermudez struggled to harmonize all of his prior statements, but the result was a hot mess. The undersigned finds him, ultimately, to be an unreliable and incredible witness, and his testimony is rejected as unbelievable. This leaves the district with the video, which, for reasons already discussed, fails to prove the charges against Dr. B. and Taylor. Moreover, Dr. B. testified that the video actually depicts events of the preceding day, which she described at hearing. The undersigned is inclined to believe her.3/ The fault for the video's ambiguity with regard to the date and time of its making belongs solely to the district. It was the district's unilateral choice to rely on a low-quality, derivative "home movie" in lieu of the original surveillance video——a shabby copy that just happens to omit the date/time stamp, which, incidentally, would likely belie Bermudez's most recent testimony (assuming the video was truly made on the morning of August 31, 2017). This is because there was not enough time after 8:30 a.m. for the so-called "headphones incident" (see the table above) to occur and allow for Bermudez to make it to Ms. Rodriguez's office by 8:40 a.m. It is not necessary to make exculpatory findings of fact based on Dr. B.'s testimony because neither she nor Taylor was obligated to prove her innocence. Determinations of Ultimate Fact The district has failed to prove its allegations against Dr. B. by a preponderance of the evidence. The district has failed to prove its allegations against Taylor by a preponderance of the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order exonerating Darlene G. Taylor and Kamla C. Bhagwandin of all charges brought against them in this proceeding, reinstating them to their pre-dismissal positions, and awarding them back salary as required under section 1012.33(6)(a). DONE AND ENTERED this 28th day of June, 2018, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 2018.
The Issue The issue here presented concerns the challenge by the Petitioner, State of Florida, Department of Professional Regulation, to the Respondent, State of Florida, Department of Professional Regulation, Board of Real Estate's video tape course rule, i.e., Rule 21V-3.08(5), Florida Administrative Code, in that portion which states: "A licensed instructor must he in attendance to conduct each quiz and review session." The stated authority for this rules challenge is in accordance with Section 120.54, Florida Statutes, and Section 455.211, Florida Statutes. In particular, the Petitioner has alleged that: The proposed rule goes beyond the statutory authority of the Board of Real Estate. The proposed rule has not been accompanied by adequate economic impact statements as required by Subsection 120.54(2), Florida Statutes. The proposed rule does not protect the public from any significant and discernible harm or damages. The proposed rule unreasonably restricts competition or the availability of professional services in the state. The proposed rule unnecessarily increases the cost of professional services by the corresponding or equivalent public benefit.
Findings Of Fact On June 26, 1980, the Respondent filed a Notice of Rule Adoption of Rule 21V-3.08, Florida Administrative Code. The general text of that rule may be found in the Petitioner's Exhibit No. 1 admitted into evidence. Within that rule is found Subsection 21V-3.08(5), which establishes the requirement that a licensed instructor must conduct the quiz and review sessions of the video tape course envisioned by the subject rule. 1/ The quiz and review sessions are held in the fourth, eighth, twelfth and sixteenth sessions, with each session being constituted of a three-hour program for a total of twelve hours of live instructor time. Rule 21V-3.08, Florida Administrative Code, was published in the Florida Administrative Weekly on July 3, 1980, in the form shown through Petitioner's Exhibit No. 1. The rule in question had been the subject of discussion in the Respondent's monthly meeting in June, 1980, preliminary to its adoption. Again, in the meeting of July 28, 1980, the rule was discussed and offered for public comment by those parties interested in stating their positions in support of or opposition to the rule. Petitioners Exhibit No. 4 admitted into evidence is a transcript of that meeting. In the course of the July 28, 1980, meeting, David W. Dalton, President of the Bert Rogers School of Real Estate, Inc., an organization that would be substantially affected by the proposed rule, was allowed to state his opposition to the passage of that portion of the rule mandating twelve hours of live instructor time. In essence, Dalton, in behalf of his corporation, was opposed to any mandatory requirement of more than three hours of live instructor time based upon the belief that Chapter 80-51, Section 1, Laws of Florida (1980) which created Subsection 475.451(7) Florida Statutes, did not allow for the requirement of more than three hours of live instructor time in a video tape real estate course. In the July, 1980, meeting the Petitioner through its legal staff was also allowed to make known its opposition to the establishment of the requirement far live instructors in excess of three hours. This opposition was made known prior to the time that the final decision was reached to implement the rule's provision in question. One of the Respondent's board members also made known her opposition to passage of the rule, that being Virginia Bishop, who stated that she was in accord with the principle of having more than three hours of live instruction but was required to act in deference to the wishes of the Florida House of Representatives, member, Carl Ogden, Vice Chairman, Regulatory Reform Committee, who expressed his opinion that the legislation, Chapter 80-51, Section 1, Laws of Florida (1980), instituting Subsection 475.451(7), Florida Statutes, would not allow for more than three hours of live instruction to be mandated by the Board of Real Estate. Notwithstanding Mrs. Bishop's vote against the passage, the decision of the others members of the Board of Real Estate deliberating this matter, was to go forward with Rule 21V-3.08, Florida Administrative Code, leaving intact the twelve-hour requirement for live instruction. Rule 21V-3.08, Florida Administrative Code, as it appears in Petitioner's Exhibit No. 1 was filed with the Secretary of State Office, State of Florida, on August 4, 1980. On that same date, the Petitioner petitioned the Division of Administrative Hearings for a rules challenge hearing in accordance with the provision Section 120.54, Florida Statutes, and the further authority found in Section 455.211, Florida Statutes. Rule 21V-3.08, Florida Administrative Code, became effective on August 24, 1980. The rule as adopted had an economic impact statement and the statement addressed the concerns of Section 455.211, Florida Statutes, and the language of the economic impact statement may be found in Petitioner's Exhibit No. 1. The economic impact statement was prepared by the staff of the Respondent and the Board of Real Estate relied on the staff's information in adopting the rule in question, and the overall Chapter 21V-3, Florida Administrative Code. In addition to the comments found in the economic statement appended to the rule, testimony was elicited from certain witnesses presented by the Petitioner in the course of the hearing in its effort to attack the adequacy of the economic impact statement. The Commissioners who testified in behalf of the Petitioner, namely, Arthur M. Hamel and Virginia Bishop, did not have an in-depth knowledge of the steps which the staff undertook in preparing the economic impact statement. Hamel did indicate that from his knowledge of the situation, that if there were any increase in cost to the course participants due to the utilization of a live instructor as opposed to a video tape monitor, that he felt this would be money well spent, intimating that there would be some higher quality presentation through live instruction. Hamel also expressed concern that some of the schools that were offering real estate courses were turning out students who might not have sufficient expertise to act as a real estate professional; instead, they might be perceived as people who were able to answer examination questions only. Hamel had a concern about how this affected the public. Mrs. Bishop testified that she felt that a live instructor should be utilized in teaching participants in the courses. Carlos Brian Stafford testified in the hearing. Mr. Stafford is the Executive Director of the Board of Real Estate. Although Mr. Stafford was privy to the opinions expressed by Representative Ogden on the propriety of enacting a rule which would require more than three hours of live instructor participation in the real estate courses, and, made known Mr. Ogden's opinion to the Board of Real Estate prior to the adoption of the rule in question, he was nonetheless persuaded as Executive Director that the limitation of the number of live instructor hours would enure to the detriment of the applicants for registration. Taking the course using video tape as a primary emphasis as compared to live instruction might be cheaper in initial costs, but was outweighed in the mind of Stafford because he felt that the higher number of individuals taking a real estate salesman examination would fail, thereby requiring them to purchase and participate in a two or three day review course in addition to the general course of video instruction in order to pass the examination. The two courses in turn would cost more than a general course with greater emphasis on live instruction. In response to the Petitioner's inquiry, Stafford said that no statistical study was done to determine economic impact because there was "nothing to base the study on". The witness indicated that the decision to employ twelve hours of live instruction came about through staff discussion within the Board of Real Estate. Charles H. Hoeck, real estate education coordinator for the Petitioner, testified as witness for the Petitioner. Mr. Hoeck was the individual most responsible for the preparation of Rule 21V-3.08, Florida Administrative Code. Hoeck acknowledges that no specific comment was offered on the question of the economic impact of Rule 21V-3.08, Florida Administrative Code; however, he goes on to say that a wide range of information was reviewed on the cost and methods of preparation of video tapes. This information revealed that the cost of professionally developing a 48-hour block of technical material could run as much as $150,000.00 as contrasted with a less sophisticated operation which might cost $5,000.00. Where the actual cost for the creation of the program might be established eventually could not be determined according to Hoeck, because the type course contemplated by the rule had not been prepared before the rule adoption. As a consequence, the cost figures were not available to make the determination. Nonetheless, Hoeck concedes that twelve hours of live instruction in the video tape course will cost more than three hours of live instruction on a unit basis. This cost could be passed on to the student in the proprietary school course; not necessarily so in the community college type course. According to Hoeck, whatever the method of instruction, the Board of Real Estate would prescribe the course content, to include 16 three-hour sessions. Hoeck examined other instructional experiences prior to the draft of the economic impact statement related to the overall Chapter 21V-3, Florida Administrative Code, an attempt to ascertain effectiveness of live presentations as contrasted with video tape presentations. This effort was not successful in the sense that the programs reviewed at the University of Florida and University of Central Florida indicated that a video tape technique was used by way of supplement or augmentation to the live instruction as opposed to an alternative method of instruction. Other material which Hoeck was familiar with and looked to in making the decisions related to the rule in question convinced Hoeck that video tape was less effective than live instruction. This is particularly true of persons who have less education and are older students. In this respect, 55 percent of the applicants have a high school education or less, and approximately 45 percent of those persons are over forty years old, and the latter group typically has not been involved in the educational process for a number of years. To Hoeck those persons with the limited educational background have more difficulty with video tape instruction than they do with live instruction which allows you question and answer periods. The above referenced percentages are as applied to 50,000 persons who took the salesman's license examination in 1979 of the 75,000 people who took the introductory course in that same year. As the petitioner's witness, Hoeck also discussed briefly the experience that the State of Georgia had with the utilization of video tapes in lieu of the traditional live instruction. Georgia found that the percentage of those passing the real estate examination went down significantly when video tapes were used. (This information about the experience in Georgia was not personally verified by Hoeck.) If the Georgia experience were indicative of what would occur in Florida, the applicant for registration would be required to stand examination again and this would cost more money for registration and examination and it would be expected, in Hoeck's opinion, that the applicant for re-examination would take the review course in addition to the general video tape course, which would again cost more money. The same David W. Dalton who had testified in the public hearing prior to the adoption of the rule gave testimony in the course of the hearing in the rules challenge matter. In Dalton's opinion, the video tape instruction would not achieve the same level of quality of instruction as a live instructor of the highest caliber, but it would be considerably better than what Mr. Dalton considered to be the lowest quality of live instruction, that low range being typical of the market place. Dalton stated that video tape instruction can be offered at substantial savings because of the ability to use unskilled individuals to run the video equipment as opposed to paying live instructors. Although this cost savings could be made available to the course participant, Dalton stated that the savings would be at the option of tee cool, in that the school might elect to take the savings tit the cost of the preparation of the course in the way of additional profits. Again, Dalton expressed his opinion that the enabling legislation as found in Chapter 80-51, Section 1, Laws of Florida (1980) creating Subsection 475.451(7), Florida Statutes, restricted the Board of Real Estate to a three-hour mandatory requirement for live instruction, with additional hours of live instruction being at the option of the real estate school.
The Issue Whether just cause exists for Petitioner to suspend Respondent without pay and terminate his employment as a school security monitor.
Findings Of Fact The Parties Petitioner is a duly-constituted school board charged with operating, controlling, and supervising all free public schools within Miami-Dade County, Florida, pursuant to Article IX, section 4(b), Florida Constitution and section 1001.32, Florida Statutes. At all times relevant, Respondent was employed with Petitioner pursuant to a professional services contract as a school security monitor at John F. Kennedy Middle School ("JFKMS"), a public school in Miami-Dade County, Florida. Respondent has been employed with Petitioner as a school security monitor at JFKMS since 2010. At all times relevant, Respondent's employment was governed by the collective bargaining agreement between Miami- Dade County Public Schools and the United Teachers of Dade Contract, Petitioner's rules, and Florida law. Notice of Specific Charges Petitioner's Notice of Specific Charges, which constitutes the administrative charging document in this proceeding, was filed on January 26, 2016. In the Notice of Specific Charges, Petitioner alleges that Respondent picked up J.F., a JFKMS student, and dropped him to the floor, and also alleges that Respondent grabbed J.F. by the hood of his sweatshirt in such a manner that J.F. complained of being unable to breathe. The Notice of Specific Charges charges Respondent with having committed misconduct in office, as defined in Florida Administrative Code Rule 6A-5.056(2), including violating specified rules and School Board policies incorporated therein; and with having committed gross insubordination, as defined in rule 6A-5.056(4). The Evidence Adduced at Hearing The events giving rise to this proceeding occurred on or about May 19, 2015, at JFKMS. That day, Respondent was on duty as a school security monitor. At the time of the incident giving rise to this proceeding, Respondent was monitoring the "spill-out" area at JFKMS. The spill-out area is the area outside of the cafeteria where students congregate after they have finished eating.2/ It is separated from a courtyard by a wall consisting of bars. A gate connects the spill-out area to a courtyard.3/ Respondent saw J.F. slap a student on the head and then initiate a slap-boxing episode with another student. Slap-boxing is a form of play-fighting in which the participants slap each other with open hands rather than hit each other with fists. Although it is play-fighting, slap- boxing can, and often does, escalate into real fighting if the participants are hurt or become angry. Slap-boxing is contrary to Petitioner's policies governing student conduct and discipline, including the Code of Student Conduct.4/ Respondent ordered J.F. and the other student to stop slap-boxing. Thereafter, they exited the spill-out area and went into the courtyard, where they continued to slap-box. Respondent began to close the gate separating the courtyard from the spill-out area. Thereafter, the interaction between Respondent and J.F. that gave rise to this proceeding occurred. J.F. did not testify at the final hearing. To establish that Respondent engaged in the conduct specifically alleged in the Notice of Specific Charges, Petitioner presented the testimony of Officer Delontay Dumas, an officer in Petitioner's Police Department. Dumas was assigned to, and on duty at, JFKMS on the day of the events giving rise to this proceeding. Through his school radio, Dumas heard shouting that there was a fight going on. When he arrived at the spill-out area, he observed Respondent and J.F., who, at that point, appeared to have been separated from each other by staff members and students. Dumas did not personally see the events that gave rise to this proceeding. Petitioner presented video footage recorded by two surveillance cameras, hereafter referred to as "Camera 5" and "Camera 6," located in the spill-out area. Although Dumas did not personally witness the events, he identified Respondent, J.F., and another person (D.M.) shown in the video footage. Dumas also provided some narrative description of the events depicted in the footage.5/ The quality of the video footage from both Cameras 5 and 6 generally is poor. One can reasonably assume, based on the very small size of the images in the video footage, that the cameras are located considerable distances from the specific location within the spill-out area where the incident occurred. As such, one is unable to clearly——or, in some instances, at all——see or identify who is present and what is happening. When the image is enlarged to "full size," the resolution becomes extremely poor, again making it very difficult to impossible to clearly, if at all, see or identify who is present and what is happening. No audio recording associated with the video footage from either camera was provided. Camera 5 is a panning surveillance camera.6/ As such, it does not continuously monitor or depict a specific location within the spill-out area; rather, the footage depicts a particular location for a brief period before the camera pans to another location in the spill-out area. Thus, one is not able to see a continuous sequence of events occurring in any given location within the spill-out area. The only video footage from Camera 5 that is relevant to this proceeding is that showing the gate between the spill- out area and courtyard. The following constitutes the pertinent timeline7/ of events, with a description of the events as observed by the undersigned, at the time shown on the timestamp on the relevant video footage from Camera 58/: 13:01:44 A person who appears to be Respondent (as identified by Dumas in connection with testimony regarding Camera 6) is standing at the gate between the spill-out area and the courtyard, and closes the gate. 13:02:49 Students are at the gate, which is open. Respondent is not at the gate. 13:03:16 Student is in the gate, which is open. Respondent is not at the gate. 13:03:52 A student in a red shirt exits gate into courtyard. Respondent is not at the gate. 13:04:26 No one is at/in the gate, which is open. 13:05:02 The gate is open and several people are standing near or in it. No one can be identified due to poor image quality. The small image is dark and distant; the "full size" image has such poor resolution that one is unable to identify the persons shown in the footage. 13:05:04 - 13:05:06 Respondent is identified from the white emblem on the back of his black shirt (as seen more clearly in the footage from Camera 6). He is standing in the open gate and is facing into the courtyard. The students near him are not and cannot be identified. It appears that Respondent closes the gate at approximately 13:05:06. 13:05:35 A person who appears to be Respondent is standing at the gate, inside the spill out area. The gate door is closed. A person can be seen on the other side of the gate door. That person cannot be definitively identified due to the poor video quality. Two other people, who cannot be identified, are standing inside the spill-out area near the Respondent. 13:06:11 A person who appears to be Respondent is standing at the gate, inside the spill out area. The gate is closed. A person can be seen on the other side of the gate door. That person may be J.F., but he or she cannot be definitively identified due to the poor video quality. 13:07:09 The gate is open and two persons are standing near each other. The person in dark clothing appears to be Respondent and the person in a white top appears to be J.F. However, neither the small nor "full-size" video images are of sufficient quality or provide sufficient resolution to definitively discern the actions of these persons. 13:07:23 Respondent is standing in the open gate facing into the courtyard, and the white emblem is visible although not legible. The student, who appears to be J.F., appears to be on the other side of the gate in the courtyard. 13:07:27 Three other persons, who are unidentified, are now standing in close proximity to Respondent. 13:07:52 The gate is open, Respondent and a student, who appears to be J.F., appear to be engaged with each other. The student appears to be moving toward or pushing Respondent. Although the image resolution is too poor on both small and "full size" to enable one to precisely see the respective positions of these persons, J.F.'s head does not appear to be covered by the hood. 13:07:53 The person who appears to be J.F. is inside the spill-out area. Respondent is in the gateway, but it is not possible to determine whether Respondent is touching J.F. or vice versa. 13:07:54 The person who appears to be J.F. is in the spill-out area, and the person who appears to be Respondent appears to be crouching next to him. However, it cannot be determined whether Respondent is touching J.F. or vice versa. The video footage for Camera 5 ends at 13:08:12. Based on the foregoing, the undersigned finds that the video footage for Camera 5 does not definitively depict, and therefore does not establish, that Respondent picked up J.F., dropped him to the floor, or grabbed the hood of his sweatshirt such that it caused J.F. to be unable to breathe, as is alleged in the Notice of Specific Charges. The poor quality of the video footage does not enable the viewer, with any reasonable certainty, to identify persons shown at numerous key points in the footage or to precisely see or determine the actions in which they are engaged.9/ Accordingly, the undersigned finds the video footage from Camera 5 unpersuasive to show that Respondent engaged in the conduct alleged in the Notice of Specific Charges. Camera 6 is a stationary surveillance camera located in the spill-out area.10/ The following constitutes the pertinent timeline11/ of events, with a description of the events as observed by the undersigned, at the time shown on the timestamp on the relevant video footage from Camera 612/: 13:01:36 – 13:01:45 Respondent (who is identified by Dumas) appears in the video field and walks to the gate separating the spill-out area from the courtyard. At this point, the white emblem identifying him as a school security monitor can be seen on the back of his shirt but it is not legible due to the poor quality of the video footage. 13:01:46 – 13:02:13 Respondent is standing at the gate. Several students walk into and out of the spill-out area through the gate. 13:01:14 Respondent walks away from the gate, toward another part of the spill-out area. 13:02:34 Respondent is no longer visible in the video footage. 13:02:52 J.F. (identified by Dumas), who is wearing a white hooded sweatshirt and khaki shorts, appears in the video footage. He is accompanied by, and interacting with, other students. 13:03:19 J.F. and another student, who is wearing a red top and khaki pants, are interacting with each other. J.F. briefly turns around and faces the direction in which Respondent previously walked as he left the field of view. By 13:03:24, J.F. has turned back in the opposite direction and walks away from the other student. 13:03:33 Respondent reappears on the right-hand edge of the video footage, coming from the direction J.F. faced as he briefly turned, before turning back around and walking away. 13:03:48 J.F. is in close proximity to, and interacting with, the student in the red top. 13:03:50 J.F. exits the spill-out area through the gate and goes into the courtyard. By 13:03:53, the student in the red top also has exited the spill-out area into the courtyard. Respondent can be seen near the lower right- hand corner of the video footage, facing in the direction of J.F. and the student in the red top. By this time, movement in the courtyard can be seen on the left-hand edge of the video footage. Respondent begins to walk toward the gate. 13:04:24 Respondent walks toward the gate between the spill-out area and the courtyard. 13:04:33 Respondent stands at the gate. 13:04:35 Respondent is no longer visible at the gate; it appears that he moved through the gate toward or into the courtyard. 13:04:36 J.F. moves back into the spill-out area. He appears to be falling backward into the spill-out area, and in doing so, appears to fall into other students, who are walking by. Respondent is not visible. 13:04:37 J.F. appears to regain his balance and appears to stand upright or nearly upright. Respondent is not visible. 13:04:38 J.F. again appears to be falling backward, with his back facing the gate. Respondent is not visible. A person, who cannot be identified, is standing in the gate and appears to crouch down. 13:04:38 A student wearing red enters the spill-out area from the courtyard and partially obscures the view of J.F. Respondent is not visible. 13:04:39 A person wearing black, who cannot be clearly seen and cannot be identified by viewing the video footage, appears to be standing over J.F., who appears to be lying on the ground. 13:04:40 The person wearing black, who cannot be clearly seen or identified by viewing the video footage, appears to bend down over J.F., then stands up. It appears that J.F. is sitting up. The view of J.F. and the person wearing black largely is obscured by student bystanders, including the student in the red top, who is running away from the location of J.F. and the person wearing black. 13:04:41 Neither J.F. nor the person wearing black are visible in the video footage. 13:05:17 A person wearing black is standing at the gate. The person cannot be identified by viewing the video. J.F. is not visible. 13:05:17 – 13:07:00 The person wearing black is standing at the gate. Many students walk by and stand, obscuring the view of the gate. Students exit and enter the spill- out area through the gate. J.F. is not visible. 13:07:01 - 13:07:56 The person in black is no longer visible at the gate. Many students walk by and stand, obscuring the view of the gate. Students exit and enter the spill-out area through the gate. J.F. is not visible. 13:07:57 Respondent (as identified by Dumas) is seen standing at the gate. A student wearing a light green or blue top is standing in a position that partially obscures the view of Respondent. J.F. is not visible. 13:08:10 J.F. (as identified by Dumas) is standing next to Respondent at or in the gate. 13:08:13 J.F. moves forward from the gate into the spill- out area and appears to be crouching or bending down. 13:08:14 J.F. swings around such that he is facing the spill-out area and appears to grasp the bars that comprise the separation wall between the spill-out area and the courtyard. Respondent appears to briefly place his arm on J.F.'s torso. 13:08:15 Respondent and J.F. are seen standing next to each other in the gate. 13:08:17 J.F. appears to have backed up and is holding onto the bars. The view of J.F. is obscured by another person wearing a white short-sleeved shirt and dark pants, previously identified as D.M. by Dumas, who stands next to J.F. Starting at 13:08:18 to the end of the video footage at 13:12:01, the notation "[No Recorded Data]" intermittently appears for brief intervals in the lower left corner of the video footage. Simultaneously with this notation, the video footage briefly freezes before resuming, causing the footage to appear jerky and to rapidly skip forward. 13:08:30 J.F. appears to be standing in the spill-out area. The view of Respondent is almost completely obscured by D.M. 13:08:34 J.F. is in the spill-out area standing next to Respondent at the gate. They do not appear to be in any physical contact with each other. The view of both J.F. and Respondent is partially obscured by D.M. 13:08:35 - 13:08:49 D.M. almost completely blocks the view of Respondent and J.F. 13:08:49 Respondent and J.F. are standing in the gate. 13:08:52 J.F. begins to move side-way into the spill-out area and appears to crouch slightly. His back is facing the camera. 13:08:54 – 13:09:00 J.F. is upright and standing in the spill-out area next to and facing Respondent, who is standing at the gate. 13:09:01 J.F. appears to be facing, and moving back away from, Respondent. He is standing up and his arms are spread away from his body. 13:09:02 J.F. is crouching forward and facing Respondent. One arm is visibly spread away from his body. 13:09:03 J.F. is standing upright in the spill-over area, facing Respondent, who is standing in the gateway. 13:09:04 J.F. has bent over, and his sweatshirt appears to have ridden up in the back such that you can see a bit of his back between the bottom of the sweatshirt and the top of his shorts. His head appears to be visible. J.F. has substantially obscured the view of Respondent. 13:09:05 J.F.'s right arm is raised, and his head is slightly lowered but still visible. J.F.'s sweatshirt is ridden up in the back. J.F. has substantially obscured the view of Respondent. 13:09:07 J.F.'s right arm is again raised and he is facing Respondent. 13:09:08 J.F. bends over, then stands upright. Respondent is standing in the gate and as J.F. stands up, he largely obscures the view of Respondent. 13:09:10 J.F. is rising up from the bent-over position. Respondent appears to grasp J.F. on his upper back and under his right arm. 13:09:10 J.F. is bent over and Respondent's hand appears to touch J.F.'s upper back. 13:09:11 J.F. bends over and spins around. J.F.'s head is not visible. The sweatshirt appears to be covering his head. 13:09:12 Respondent's arm appears to circle J.F.'s waist. J.F. twists around into an upright position. J.F.'s back is to the camera. The sweatshirt appears to be covering the back of his head. J.F. is grasping one of the bars comprising the separation wall with one hand. 13:09:12 Respondent's arm appears to circle J.F.'s waist and he slightly lifts J.F. as he attempts to move him through the gate back into the courtyard. J.F. is grasping the bars of the separation wall with one hand. 13:09:14 – 13:09:16 J.F. pulls away from Respondent and backs into the spill-out area. He appears to still be wearing the sweatshirt and his head no longer appears covered by the sweatshirt. 13:09:17 By this point, students are almost completely obscuring the view of both J.F. and Respondent. 13:09:18 The view of Respondent and J.F. is completely blocked by students. A white object, which cannot be specifically identified, is briefly seen being flung. Between 13:09:18 and 13:12:01, when the video footage ends, students have gathered, completely obscuring the view of Respondent and J.F. Although the video footage from Camera 6 appears to show that Respondent briefly touched J.F. on the torso and upper back and placed his arm around J.F.'s waist, it does not show Respondent picking up J.F., dropping him to the floor, or grabbing the hood of his sweatshirt such that J.F. was unable to breathe, as alleged in the Notice of Specific Charges. The poor quality of the video footage——specifically, the small size of the footage as originally shot by the camera and its extremely poor resolution when enlarged to "full size"——does not enable the viewer, with any reasonable certainty, to identify persons shown at numerous key points in the footage or to precisely see or determine the actions in which they are engaged. Accordingly, the undersigned finds that the video footage from Camera 6 does not constitute persuasive evidence that Respondent engaged in the conduct alleged in the Notice of Specific Charges. When Dumas spoke with J.F. after the incident occurred, he took custody of J.F.'s sweatshirt, and the sweatshirt was admitted into evidence at the final hearing. The sweatshirt has a vertical rip approximately one-half inches long at the front center of the neck. Dumas testified that J.F. told him that he (J.F.) had ripped off his sweatshirt because Respondent had grabbed the hood, which was choking him.13/ As noted above, Dumas did not witness the incident, so he did not see J.F. rip the sweatshirt. Dumas did not see the sweatshirt before J.F. gave it to him, and it was ripped when Dumas received it. Petitioner also presented the testimony of student D.C.M., who was present in the spill-out area on the day in question and saw the incident. D.C.M. saw J.F. slap-boxing with another student in the courtyard. He testified that Respondent ordered J.F. and the other student to "hurry up and get back inside" the spill- out area. However, he also testified that Respondent blocked the gate between the courtyard and spill-out area to prevent J.F. and the other student from re-entering the spill-out area14/; that they tried to get back through the gate; and that the other student ultimately made it through the gate but J.F. did not. D.C.M. testified: "[a]nd then I saw [Respondent] like ——I guess he had picked [J.F.] up and put him on the ground." D.C.M. testified that he saw J.F. get up off of the ground, laughing; that J.F. again tried to force his way back through the gate; that Respondent, who was attempting to lock the gate, blocked J.F. with his body to prevent him from coming back through the gate; and that J.F. did finally "get his body a little bit through." D.C.M. testified that "[Respondent] has him against like the gate——right there, there's like metal bars, then he had him holded [sic], so I guess he had his——had [J.F.] by the hoodie of the jacket. Then I guess [J.F.], he said, 'Let me go. I can't breathe. I can't breathe.'" D.C.M. testified that at that point, J.F. became angry, ripped off his jacket, and freed himself from Respondent's grasp. J.F. then tried to hit Respondent. D.C.M. testified that he restrained J.F. and at that point, another school security monitor responded to the incident. On cross-examination, D.C.M. testified that when J.F. tried to re-enter the spill-out area, "I guess [Respondent] had picked him up and then like put him on the ground." On balance, the undersigned does not find D.C.M.'s testimony persuasive to establish that Respondent engaged in the conduct alleged in the Notice of Specific Charges. Although D.C.M. was present and claimed to have seen the events, his testimony regarding the specific conduct with which Respondent is charged was repeatedly qualified with the preface "I guess." As such, D.C.M.'s testimony regarding Respondent's actions and conduct is equivocal and indefinite. D.C.M. did not state, unequivocally, that he saw Respondent pick J.F. up and put him on the ground or that he saw Respondent grab the hood of J.F.'s sweatshirt. As such, D.C.M.'s testimony does not persuasively establish that Respondent engaged in the specific actions with which he is charged in the Notice of Specific Charges. Respondent also testified regarding the incident. He observed J.F. and another student (who was wearing a red shirt) running around, slapping other students, and engaging in slap- boxing with each other in the spill-out area. Respondent twice directed them to stop. They exited the spill-out area and went into the courtyard, where they resumed slap-boxing. In order to isolate them in the courtyard to prevent them from engaging in further disruptive behavior involving other students in the spill-out area, Respondent walked over to close the gate between the spill-out area and the courtyard. Respondent testified, credibly, that he intended to separate them from each other once he had isolated them in the courtyard. Once Respondent began to close the gate, J.F. and the other student ran toward the gate to try to get back inside the spill-out area. The student wearing the red shirt got through the gate and back into the spill-out area. Respondent testified, credibly, that J.F. also attempted to get through the gate, but ran into him and fell down. Respondent caught J.F. under his arm, walked him back out of the spill-out area, and closed the gate in order to isolate J.F. until the class bell rang. Respondent testified, credibly, that he explained to J.F. that he was to remain in the courtyard until the class bell rang, at which point Respondent would let him back into the spill-out area. J.F. continued to try to re-enter the spill-out area. Respondent did not call for another security monitor to assist him, because, in his judgment, the situation at that point was calm and under control. J.F. then pulled on the gate with sufficient force that Respondent lost his grasp on the gate, which opened. At that point, J.F. again tried to re-enter the spill-out area. Respondent again blocked J.F. with his body to prevent him from re-entering the spill-out area. In the course of blocking J.F. from re-entering the spill-out area, Respondent testified, credibly, that he caught the back of J.F.'s hooded sweatshirt and tried to move him back outside of the gate. At that point, J.F. squeezed out of his sweatshirt, threw it at him, and started throwing punches and cursing at him. Respondent attempted to stop or deflect the punches. Until that point, Respondent had not tried to call for assistance because, in his words, "it literally went from zero to 60 like that." Respondent acknowledged that before the incident escalated to the point that J.F. threw punches at him, he had placed his hands on J.F.; however, this was after J.F. had run into him, and Respondent did so in order to guide J.F. back out of the gate. Respondent testified that he did not recall having otherwise placed his hands on J.F. Respondent also stated that he grabbed the hood of J.F.'s sweatshirt as J.F. tried to squeeze past him back into the spill-out area. However, he denied having pulled the hood of the sweatshirt with force sufficient to prevent J.F. from going through the gate because he already had blocked J.F. with his body. In response to being asked why he did not "just let [J.F.] through," Respondent responded that he did not allow J.F. to re-enter the spill-out area because J.F. already had slapped other students, was running around, and had caused a disturbance, and that allowing him back into the spill-out area would have "opened it up further to more disturbance." The undersigned finds Respondent's account of the events credible and persuasive. The video footage from Camera 6 appears to show Respondent briefly touching J.F. on his torso, upper back, and waist; however, it is noted that Respondent testified that he did "not recall" having touched J.F. other than picking him up under the arm to guide him back out into the courtyard. This apparent inconsistency with the video footage from Camera 6, as observed by the undersigned, is credited to Respondent's lack of perfect recall rather than lack of candor. Importantly, Respondent persuasively and credibly denied having picked J.F. up and dropping him on the ground and grabbing him by the hood of his sweatshirt such that he could not breathe. As described above, the video footage does not contradict Respondent's testimony on these key points. Petitioner also presented the testimony of Tremaine Morgan, another school security monitor at JFKMS who arrived at the scene of the incident involving Respondent and J.F. as it was concluding. Specifically, Morgan saw J.F. throwing punches at Respondent and he saw a student grab and try to restrain J.F. as he was doing so. He did not see the entire incident, so did not see Respondent engage in the conduct alleged in the Notice of Specific Charges. Morgan stated that he did not see or hear any calls from Respondent on his school radio, but he also acknowledged that it was loud in the spill-out area at lunchtime, so that such calls would not be able to be heard. Morgan testified regarding his understanding of the proper procedure for handling instances of slap-boxing between students. According to Morgan, the students are first to be given the directive to stop, and that if they do not respond, the school administration should be called so, as he put, it "a higher power will take care of it." He testified that in his experience, that course of action has resolved the issue. On cross-examination, Morgan acknowledged that separate instances of slap-boxing between students is not necessarily identical or similar, and that in some instances, slap-boxing can escalate into real fighting. He testified that for that reason, students are not allowed to slap-box at school. Morgan's testimony apparently was presented to establish or demonstrate the correct way that an incident of slap-boxing is to be handled by a school security monitor. However, Petitioner did not present any evidence showing that Morgan possessed any greater authority, expertise, or knowledge regarding proper procedures than did Respondent. Further, as a fine, but key, point——the alleged conduct giving rise to this proceeding did not occur as Respondent was breaking up a slap-boxing episode between J.F. and the other student. The evidence shows that by the time J.F. and Respondent had physical contact with each other, J.F. and the other student already had ceased slap-boxing, the student in the red top already had re-entered the spill-out area, and J.F. was in the process of directly disobeying Respondent's directives to remain in the courtyard by attempting to run and squeeze past him to re-enter the spill-out area. The persuasive evidence establishes that J.F., not Respondent, initiated the physical contact between them when he ran into Respondent while trying to run through the gate, then again made physical contact with Respondent as he attempted to squeeze through the gate, in direct defiance of Respondent's order to remain in the courtyard. Only after J.F. had made physical contact with Respondent twice, in direct disobedience of Respondent's directives to stay out of the spill-out area and in the courtyard, did Respondent grab J.F.'s sweatshirt by the hood. Accordingly, Morgan's testimony as to how slap-boxing incidents should be handled is not directly relevant to the specific circumstances present in this case. Further, under any circumstances, the persuasive evidence establishes that Respondent did direct J.F. and the other students to stop slap-boxing, twice, and that they disregarded his directives. Mary Kate Parton,15/ principal at JFKMS, testified that school security monitors should not place their hands on a student unless the student presents a danger to himself or others, and that whether touching of a student by a school security monitor is inappropriate depends on the specific circumstances with which the school security monitor is presented in a given situation. She concurred that students at JFKMS are not allowed to slap-box, and she acknowledged that whether a school security monitor's response to slap-boxing episodes depends on the specific circumstances and situation. Respondent previously has been disciplined for having inappropriate physical contact with students at JFKMS. Specifically, in April 2013, Respondent was reprimanded for touching a student on the shoulder as he took her to the school office after she called him a racial slur. He was directed by the then-principal of JFKMS to, among other things, refrain from any physical touching of students. However, he also was directed to follow Miami-Dade County Public Schools Procedures for Safe Restraint when necessary, which authorize the reasonable use of physical force when necessary under certain circumstances, such as to quell a disturbance threatening physical injury to others, for self-defense, or to prevent harm or injury to the student, self, or others. In November 2013, Respondent was suspended for 12 days for engaging in horseplay with a student that resulted in them falling to the ground; at the hearing, Respondent acknowledged that he had been too familiar with the student and that his conduct in that instance had been inappropriate. In addition to the previously-issued directives, Respondent was directed to adhere to the Standards of Ethical Conduct, School Board Policy 4210; the Code of Ethics, School Board Policy 4210; and the Student Supervision and Welfare Policy, School Board Policy 4213. Additionally, he was directed, in pertinent part, to refrain from inappropriate communication with students in a way or manner such that they would perceive his position to be a friend rather than adult and a professional; to refrain from inappropriate physical contact in a way or manner that does not directly relate to his job as a security monitor; and to be a credit to himself in his employment and in the community. These incidents are not probative of whether Respondent again engaged in inappropriate touching of a student that led to this proceeding.16/ They are relevant only to the issue of whether Respondent's actions at issue in this proceeding constitute gross insubordination. Findings of Ultimate Fact Whether Respondent committed the offenses charged in this proceeding is a question of ultimate fact to be determined by the trier of fact in the context of each alleged violation. Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1985); McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995). Misconduct in Office Having considered the evidence, the undersigned finds that Petitioner has not established, by a preponderance of the competent, credible, and persuasive evidence, that Respondent's actions in this case constitute misconduct in office, as defined in rule 6A-5.056(2), which incorporates rule 6A-10.080, rule 6A- 10.081, and Standards of Ethical Conduct, School Board Policy 4210; the Code of Ethics, School Board Policy 4210; and the Student Supervision and Welfare Policy, School Board Policy 4213. As discussed in greater detail above, the video camera footage simply does not show, with any degree of clarity or precision, that Respondent engaged in the conduct with which he is charged in the Notice of Specific Charges——i.e., picking up J.F. and dropping him to the floor and grabbing him by the hood of his sweatshirt such that he was unable to breathe.17/ Further, as discussed above, D.C.M.'s testimony was equivocal regarding Respondent's specific actions, and, as such, was not sufficiently persuasive to find that Respondent engaged in the conduct alleged in the Notice of Specific Charges. As discussed above, the video footage does show, with some reasonable certainty, some physical contact between Respondent and J.F.18/ The undersigned finds that this contact constituted the use of reasonable force which was appropriate under the circumstances, and that Respondent's actions in attempting to physically block J.F. from re-entering the spill- out area (where he already had been disruptive and physically engaged with other students) were consistent with the JFKMS procedures for dealing with disruptive behavior by a student. Specifically, Respondent testified, credibly, that, consistent with the JFKMS protocol for dealing with disruptive student behavior, he directed J.F. and the other student to stop slap-boxing with each other. He did so twice; both times, they disobeyed those directives. Once J.F. and the other student exited into the courtyard, Respondent attempted to isolate them in that area so they would not return to the spill-out area and resume in behavior that was disruptive and potentially dangerous to themselves and other students. At that point, J.F. and the other student stopped slap-boxing and attempted to get past Respondent, with one of them actually succeeding. Respondent blocked the gate with his body, consistent with the type of reasonable force that is authorized under circumstances where the student's behavior may result in injury to himself or others.19/ As discussed above, the evidence shows that J.F. made the initial contact with Respondent by running into him, at which point J.F. fell to the ground. Thereafter, as Respondent again tried to prevent him from returning into the spill-out area——while telling him he had to remain in the courtyard until the class bell rang——J.F. again attempted to squeeze past him. At this point, Respondent was justified in holding J.F. to prevent him from re-entering the spill-out area, where he previously had engaged in disruptive behavior (which could have escalated into a real fight) and had shown no inclination to stop even after being directed twice to do so. As discussed above, Respondent did not attempt to call for the assistance of another school security monitor or administration until J.F. ripped off his sweatshirt and started throwing punches at him, because until that point, Respondent considered the situation under control. Under these circumstances, the undersigned finds that Respondent did not engage in conduct constituting misconduct in office as defined by rule 6A-5.056(2). Gross Insubordination The undersigned also finds that Respondent's actions do not constitute gross misconduct, as defined in rule 6A- 5.056(4). In connection with the April 2013 reprimand of Respondent for inappropriate physical contact with a student, the then-principal of JFKMS issued directives that included the following: "[r]efrain from any physical touching of students." Another directive appeared to temper this directive by stating: "[f]ollow MDCPS Procedures for Safe Physical Restraint when necessary." In connection with the suspension of Respondent in September 2013, for horseplay with a student, the following additional directives were issued: "[r]efrain from inappropriate physical contact with students in a way or in any manner that does not directly relate to your job as a school security monitor." Here, the evidence does not show that Respondent's actions constitute the intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority. With respect to the April 2013 directives, to the extent they direct Respondent, as a school security monitor, to literally refrain from any physical contact with students, they are directly contrary to School Board Policy 5630, titled "Corporal Punishment and Use of Reasonable Force," which expressly authorizes school staff members, which includes school security monitors, to, within the scope of their employment, "use and apply reasonable force to quell a disturbance threatening physical injury to others, . . . in self-defense, or for the protection of persons and property." To the extent the principal's April 2013 directives are contrary to this School Board policy, they were (and are) unreasonable. Respondent's actions also do not violate the additional directives issued in September 2013 in association with his suspension. As discussed above, Respondent's conduct under the circumstances present in this case, where J.F. had engaged in disruptive behavior having the potential to escalate into a fight that could harm or injure himself or others, constituted use of reasonable force——which consisted of blocking J.F. as he tried to re-enter the spill-out area after having been told he was to remain in the courtyard until the class bell rang, and holding J.F. when J.F. again disobeyed that directive and again made physical contact with Respondent. The evidence also shows that, consistent with the September 2013 directive, Respondent followed MDCSP Procedures for safe restraint when necessary. As discussed above, Respondent twice told J.F. and the other student to stop slap- boxing, and he also repeatedly told J.F. to remain in the courtyard until the class bell rang. He gave these directives before engaging in physical restraint of J.F. by blocking, and then holding, him when he disobeyed, ran into Respondent, and ultimately, tried to punch Respondent. Further, Respondent's actions with respect to J.F. were directly related to his job as a school security monitor. Under these circumstances, the undersigned finds that Respondent did not engage in gross insubordination under rule 6A-5.056(2).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a final order dismissing the Notice of Specific Charges against Respondent, reinstating Respondent's employment as a school security monitor, and awarding Respondent back pay for the period of his suspension without pay. DONE AND ENTERED this 7th day of April, 2016, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 2015.
The Issue The issue in this case is whether the district school board has just cause to suspend a security monitor for 30 days without pay based upon the allegation that he slapped a student.
Findings Of Fact Petitioner, the Miami-Dade County School Board ("Petitioner" or "the School Board"), is the constitutional entity authorized to operate, control, and supervise the Miami- Dade County Public School System. As of the final hearing, Respondent Anthony Burney ("Respondent" or "Burney") had been employed as a school security monitor in the Miami-Dade County Public School System for approximately 21 years. For the last eight or nine years and at all times relevant to this case, Burney was assigned to Allapattah. On September 9, 2008, K.H., an eighth grader, and fellow students, D.M., D.G., and A.E., were sitting on benches in the cafeteria, two on each side of an aisle facing each other with their backs against the tables and their legs and feet in the aisle. Burney walked through the aisle to the lunchroom serving counter and got a tray of food. When he walked back through the aisle, K.H. wrote in a statement prepared the day of the incident that he (K.H.) was "sitting down and [Burney] was trying to pass by, ok. I let him pass the first time then he came back on purpose just to bother us so I didn't move [my legs and feet from the aisle], and out of now [sic] where he slapped me." The other students at the table gave conflicting written statements and testimony. D.M. said Burney was running towards them with a tray of food, that it was A.E. who did not move her feet, and that Burney slapped K.H. on the right side of his face with his left hand. D.G. did not remember whether or not Burney had a tray, but she did hear him say "excuse me" the first time he passed them but not the second time because they were being loud and playing. D.G. also heard Burney apologize to K.H. after he supposedly hit K.H.. A.E. testified that Burney had the tray in his right hand and hit K.H. with his left hand. A video surveillance DVD is grainy and less than clear, but it does show that Burney was walking not running. Burney was holding a tray in his left hand not his right hand. It also shows that, as Burney passed A.E. and K.H. who were sitting on the bench to his left, he turned the right side of his body towards K.H., but did not raise his right hand. After that, K.H. jumped up in a confrontational stance in front of Burney and was restrained by others. There were no red or other marks on K.H.'s face. The video surveillance DVD is consistent with Burney's explanation of what happened. Burney walked pass the four students to the counter and got his lunch. When he walked back down the same aisle with his tray, he turned to step over the student's legs and get through the aisle. He inadvertently touched K.H. when he brushed pass him and, as soon as K.H. jumped up to confront him, he apologized to defuse the situation. The cafeteria was emptying near the end of the lunch period and Burney could have and, in retrospect, arguably should have walked down any of the other aisles where there were no students sitting. While that may have demonstrated the best professional judgment for an adult dealing with 14-year-old children, there is no evidence that Burney had any prior conflicts with K.H. or any reason to believe that he needed to avoid him to prevent the confrontation. As a result of the allegations that he slapped K.H., Burney was reassigned to work at a different location. On November 13, 2008, a conference-for-the-record was held to discuss the findings of the investigation with Burney. He was given notice of his principal's recommendation for discipline on February 23, 2009. At its regular meeting on April 2, 2009, the School Board voted to accept the recommendation to suspend Burney without pay for 30 workdays. Ultimate Factual Determinations Burney's conduct on September 9, 2008, did not entail threats, threatening behavior, or acts of violence. He did not, therefore, violate School Board Rule 6Gx13-4-1.08, which prohibits violence in the workplace. Burney did not violate School Board Rule 6Gx13-4A- 1.21, which prohibits unseemly conduct or the use of abusive or profane language. Burney did not violate the Code of Ethics, School Board Rule 6Gx13-4A-1.213, by not respecting the dignity of others, not exercising his best professional judgment, or not conducting himself ethically.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order rescinding its previous decision to suspend Burney without pay for a period of 30 workdays, and award him back pay or benefits, if any were denied him as a result of that decision. DONE AND ENTERED this 14th day of January, 2010, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 14th day of January, 2010. COPIES FURNISHED: Janeen L. Richard, Esquire Miami-Dade County School Board Attorney's Office 1450 Northeast 2nd Avenue, Suite 400 Miami, Florida 33132 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 Mr. Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1308 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue is whether the district school board has just cause to suspend an instructional employee for three days without pay, where it has alleged that the teacher verbally and physically abused two of her exceptional education students.
Findings Of Fact The School Board is the constitutional entity authorized to operate, control, and supervise the Broward County Public School System. At all times relevant, it was Shvank’s employer. As an instructional employee of the School Board, Shvank holds an annual contract, and she may be dismissed or suspended during the term of the contract only for just cause. Shvank is certified to teach exceptional student education, and during the relevant school year, 2019-2020, she was assigned to Dania Elementary School, where she taught a first-grade class composed of nine students with autism. In this proceeding, the School Board seeks to suspend Shvank for three days without pay based upon three separate incidents, which occurred in her classroom on September 18, 2019. Two of these incidents involved a student named M.S., while the third was an interaction with L.G., another student. The only evidence against Shvank having any meaningful probative value in the judgment of the fact-finder are videos recorded by a college student who used his iPhone to film Shvank while observing her class pursuant to his own studies as an education major. He later edited the raw footage, which was reduced to three brief clips, hereafter the “Chin Segment,” the “Words Segment,” and the “Dance Segment.” Before turning to these clips, some findings about how the videos came to be made are in order. In September 2019, Diego Balin was a student at Broward College in his final year of a program leading to a degree in education. As part of his studies, Mr. Balin needed to complete a practicum, whereby he would be placed in a classroom to observe an experienced teacher in action. Mr. Balin was assigned to Shvank’s classroom. As a student teacher, Mr. Balin was present in Shvank’s classroom on two different days, the first being a date before that of the subject incidents. There is some dispute as to how long Mr. Balin stayed that first day, but he saw enough to conclude that Shvank was too aggressive with the students for his taste. It should be added that the two other adults in the classroom (besides Shvank and Mr. Balin), namely a paraprofessional and a speech- language pathologist, did not observe any questionable behavior on Shvank’s part, either that day or at any time. The next time that Mr. Balin was in Shvank’s classroom turned out to be September 18, 2019. Within about ten minutes after arriving, Mr. Balin saw what he perceived as aggressive behavior by Shvank, so he began secretly video recording her using the iPhone in his shirt pocket as a concealed body camera. In total, Mr. Balin recorded approximately two hours’ worth of footage, capturing about half of his time in the classroom that day. Reviewing the video later, Mr. Balin identified three incidents that bothered him. He reported his concerns to Kelly Walker, the professor overseeing his practicum, and told her that he had made a video recording. Professor Walker asked for a copy of the video. Mr. Balin edited the footage by cutting out three short clips, as mentioned, which together comprise about three and a half minutes of playing time. The Chin Segment is 23 seconds long. The Words Segment runs for one minute, 23 seconds. The Dance Segment is one minute, 46 seconds in duration. Mr. Balin sent these clips to Professor Walker. After seeing the video clips, Professor Walker reported her suspicion of possible child abuse to, among others, the principal of Shvank’s school and the Department of Children and Families’ abuse hotline. The District’s case depends almost entirely upon the persuasiveness of these three clips. For that reason, the undersigned notes that, as a fact- finder, he must interpret the videos, which do not convey an obvious, unambiguous meaning. Indeed, these videos are neither objective nor definitive. Heavily edited for length, thereby potentially depriving the viewer of important context, they afford only one visual perspective, which is sometimes obstructed, making it impossible to know what is being missed or possibly misperceived. Crucially, the most relevant actions of Shvank, i.e., the ones which the District contends are disciplinable, take place literally within fractions of a second, a mere blink of the eye. It is not an overstatement to say that a viewer can see what he or she wants to see in these video clips. With that in mind, the undersigned notes, further, that as a fact- finder, he is troubled by the provenance of these clips. There is a narrative at work here, which the undersigned believes might tend to bias some viewers against Shvank, making them more likely to “see” abuse in the videos. To begin, we have the apparently altruistic whistleblower, Mr. Balin, who is shocked by what he perceives as child abuse which no one else seems to notice, impliedly because the classroom “regulars” have grown accustomed or indifferent to Shvank’s aggressive manner. He is appalled, but instead of reporting his concerns to the school administration, which could have investigated the matter in the ordinary course if the allegations warranted such attention, Mr. Balin decides unilaterally that there is a reasonable basis for an investigation, which he will personally carry out. To gather evidence, Mr. Balin conducts covert electronic surveillance of Shvank, effectively deputizing himself as an undercover agent of the District. This was a questionable decision for several reasons, and one the District should be hesitant to condone. Some of the reasons are legal in nature, others practical. From a legal standpoint, the question as to whether the secret recording of Shvank constituted an illegal interception under section 943.03, Florida Statutes, is one that could be fairly debated. Because Shvank did not object pursuant to section 934.06 to the admission of the videos into evidence, however, the question need not be decided here. Even if the covert interception of her oral communications was legal, however, as it might have been, there is something unsavory about secretly videotaping a teacher on a fishing expedition for evidence of wrongdoing that has yet to occur, based on suspicions that have not been vetted for reasonableness, either by the teacher’s supervisors or by law enforcement. Another legal issue arising from these circumstances is whether Mr. Balin’s videos constitute education records subject to the privacy protections afforded under the Family Educational Rights and Privacy Act. See 20 U.S.C. § 1232g. There are, after all, identifiable student images in these video clips. The students shown in the clips, moreover, are enrolled in the District’s special education program, which means that the videos might also come under the confidentiality provisions of the Individuals with Disabilities Education Act. See 20 U.S.C. § 1417(c). These issues need not be decided here. The point is that the decision to covertly videotape Shvank and her students is one that Mr. Balin should not have made on his own authority, and it is one that the District might want to distance itself from, given that the lawfulness of such surveillance is not free from doubt. Practically speaking, this case might have a chilling effect on teachers’ willingness to welcome student teachers into their classrooms. Shvank had a spotless record until the student teacher arrived. But then, her life was upended by Mr. Balin’s brief appearances in her classroom. In addition to this disciplinary action, the Balin videos wound up in the news, generating bad publicity for Shvank, which surely damaged her professional reputation. She was forbidden from entering a classroom to teach for nearly one and a half years. None of this would have happened if Shvank had refused to let the student teacher observe her at work. Considering Shvank’s experience, it takes no imagination to foresee that, in the future, some teachers might think twice about hosting a student teacher. (In the absence of evidence to the contrary, of which there is none, the undersigned presumes that a teacher would not be required to host a teaching student if he or she preferred not to.) None of the foregoing factors impugn the credibility of the video clips per se, but they do shed light on Mr. Balin’s credibility. Mr. Balin is not, in the fact-finder’s view, as disinterested a witness as he appears to be at first blush. Rather, Mr. Balin was a motivated witness, as shown by the fact that he decided personally to gather evidence of anticipated wrongdoing on Shvank’s part. While there is no evidence that he had any preexisting animus towards Shvank, Mr. Balin secretly recorded her because he wanted to find proof that she was being abusive with her students, to corroborate his own perception of Shvank’s conduct. As stated above, if, like Mr. Balin, you want to see abusive behavior in these videos, then that is what you will likely see. Mr. Balin testified credibly as to his opinion about what the video clips show. Mr. Balin, however, sincerely and honestly believed before September 18, 2019, that Shvank was overly aggressive with her students, and, to repeat, he wanted his surveillance videos to prove him right. Mr. Balin, therefore, was primed to see abuse in the footage he shot. Mr. Balin’s evident sincerity and obvious conviction, moreover, may have primed other viewers to see what he sees in the videos. The undersigned, in watching the videos, has made a conscious effort neither to expect to see, nor to ignore, evidence of wrongdoing. The Chin Segment. At the beginning of this clip, Shvank is standing behind her desk. She looks up and sees M.S. doing something that attracts her attention, whereupon she walks briskly over to the student. Standing before M.S., Shvank exclaims, “Didn’t I say ‘no’?” As she speaks, she reaches out and places her finger under M.S.’s chin, lifts the finger, and wags it in a gesture signaling “no, no, no.” As this happens, M.S.’s head jerks backwards. The District contends that Shvank snapped M.S.’s head back by forcefully pushing his chin upwards. A casual viewer might agree with the District. The entire “head snapping” episode takes place within the eight-second mark of the video clip. It happens fast, and M.S.’s head does appear to jerk backwards. Unfortunately, the video does not afford a clear line of sight, and the angle of the shot is less than ideal. By watching the clip in slow motion, frame by frame, however, the undersigned has determined that Shvank did not likely snap M.S.’s head back. For one thing, her fingertip barely touches his chin, doing so only glancingly at best. For another, there is simply little or no visual evidence of exertion or use of force on Shvank’s part, sufficient to produce M.S.’s reaction. Neither her hand nor her arm moves with the kind of sudden, propulsive force that would be required to transfer enough energy to M.S.’s chin to propel his head backwards. In contrast, M.S.’s shoulders appear to shrug simultaneously, a flinching movement consistent with the theory that M.S. jerked his head back under his own power, perhaps because he was startled or surprised. It is found that, more likely than not, M.S. himself threw his head back when Shvank placed her finger under his chin. After this, the video shows Shvank repositioning M.S. in his chair so that he is sitting upright with his arms on the desk. While doing this, Shvank says, “Now, close your mouth, I’m going to watch you.” The District contends that Shvank “manhandle[d]” M.S. as she situated him at his desk. The undersigned sees no persuasive evidence of such rough treatment in the video. Rather, Shvank appears to be making sure that M.S. is properly seated. Shvank testified credibly that she had observed M.S. pushing his chair away from the desk, which caught her eye because he did this sort of thing ahead of engaging in self-injurious behavior, i.e., head banging. So, she rushed over to stop him. Because M.S. is nonverbal and low-functioning, Shvank put her finger under his chin as a signal for him to look up at her and pay attention. She repositioned him at the desk to prevent him from trying again to harm himself. Shvank’s testimony is consistent with the video clip and is credited as truthful. The Words Segment. This clip shows Shvank working one-on-one with M.S. to teach him “B” words such as “bus” and “bird.” She and the student are sitting in chairs next to each other at a round table. Shvank speaks a word, e.g., “bus,” and instructs M.S. to touch the flashcard having a picture of a bus. Shvank’s voice is loud, but the classroom is a noisy environment, and she is clearly trying to keep the student’s attention focused on the exercise. The District argues that Shvank was “yelling” at, and being “aggressive” with, M.S., but the undersigned finds that she was merely instructing M.S. in a raised voice appropriate to the setting and the purpose. At one point, Shvank says, “This is working. You don’t want to hear it?” M.S. appears to have leaned away from the flashcards and stopped participating in the exercise. Shvank puts her arm around M.S.’s shoulder and then pats his head, pulling him closer, so that he can get back to the lesson. The District contends that Shvank slapped M.S.’s head out of frustration, but the video clip does not support such a finding. When the clip is viewed frame by frame, Shvank’s gestures are seen, not as aggressive, but as affectionate. She was not frustrated but, rather, was trying to redirect M.S. and put him back on task. The Dance Segment. In this clip, Shvank is dancing with the students to a recording of the Mexican Hat Dance. She is standing behind, and dancing with, L.G. Most of this video is unremarkable. At about the one minute, 30 second mark, L.G. drops from view, having flopped to the floor. Shvank gets him up and they continue with the dance, until L.G. does something with his hands that the camera fails to capture. Possibly, L.G. reaches out for the student next to him. Whatever L.G. has done, Shvank reprimands him, saying, “No! No food.” Shvank testified that this meant she would withhold L.G.’s snack as a punishment. When she tells L.G. “no,” Shvank cups his cheeks with her open hands and points his face upwards to look at her. The District contends that Shvank “grab[bed] L.G. under the jawline and yank[ed]” his head up. The video does not support this characterization. To the contrary, the video shows that Shvank’s hand did not grab or otherwise take hold of L.G.’s face. Her hands are open, fingers straight ahead. Shvank’s touch was appropriate to the situation and not aggressive or punitive. The District claims that L.G. immediately covered his ears after Shvank touched him, implying that Shvank had hurt his ears. L.G. does indeed briefly cover his ears, but the video does not support a finding that he did so because Shvank injured him. There is little or no visual evidence that Shvank made any contact with L.G.’s ears, much less sufficient contact to cause harm. The undersigned credits Shvank’s testimony that L.G. covered his ears in reaction to being told that he would not be receiving a snack, a gesture meaning he did not want to hear that message. DETERMINATION OF ULTIMATE FACT The School Board has failed to prove its allegations against Shvank by a preponderance of the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order exonerating Halyna Shvank of all charges brought against her in this proceeding and awarding her back salary and benefits as required under section 1012.33(6)(a). DONE AND ENTERED this 11th day of May, 2021, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2021. COPIES FURNISHED: Andrew Carrabis, Esquire Broward County School Board 600 Southeast Third Avenue, Eleventh Floor Fort Lauderdale, Florida 33301-3125 Robert F. McKee, Esquire Robert F. McKee, P.A. 1718 East Seventh Avenue, Suite 301 Tampa, Florida 33605 Robert W. Runcie, Superintendent Broward County School Board 600 Southeast Third Avenue, Tenth Floor Fort Lauderdale, Florida 33301-3125 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact The parties have resolved the factual issues through a stipulation. A copy of the stipulation is appended to this Final Order, and constitutes findings of fact for the purposes of this proceeding. In summary, the facts are that the Respondent refers requests for formal administrative hearings that are submitted to it to the Division of Administrative Hearings. Formal hearings are conducted by the Division of Administrative Hearings, culminating in entry of recommended orders directed to the Secretary of the Department. The Department records the hearings on tape recording equipment. Tapes of the hearings are routinely made available to the parties. The Department has a policy of rejecting any exceptions to the findings of fact set out in a recommended order unless the objecting party submits a complete transcript of the hearing at that party's expense. The Respondent's practice is to allow parties to utilize tapes of the final hearing so that the party can prepare a transcript from the tapes. The Department accepts any notarized transcript prepared from the tapes as a transcript of the hearing.
Findings Of Fact The School Board of Dade County, Florida is a duly constituted school board established by Article IX of the Constitution of the State of Florida, and is charged with the duty to operate, control and supervise all free public schools within the Dade County school district pursuant to Article IX and Section 230.03 Florida Statutes. (Prehearing stipulation filed 6/12/86) At all times material, the Respondent, Bobby Anderson, was employed by the School Board of Dade County as a non-instructional employee, a school resource specialist. (Prehearing stipulation filed 6/12/86, and corrected at transcript, "tr.", page 7) Mr. Anderson was continually employed by the school board from 1976 when he was hired as a school monitor at North Miami Junior High. At the time of his suspension in 1986 he was working as a school resource specialist at Carol City High School. (tr-105,106) School resource specialists are non-law enforcement employees of the School Hoard's special investigative unit. They are assigned to a school on a full-time basis and supervise school monitors, patrol the halls, report violations of rules and law, and generally maintain a safe learning environment for students and a safe working environment for the staff. (tr-53, 107) Sometime in November 1985, the Carol City High School Principal and the School Board special investigative unit commenced an investigation of theft of school property and drug usage at the school. (tr-16, 57,75) Daniel McPhaul, the school's audio-visual technician, admitted to the use of cocaine and marijuana at school and the theft of approximately $12,000 to $13,000 of computers, televisions and video equipment from Carol City High School. (tr- 16,18) During the investigation Daniel McPhaul mentioned the names of several teachers and non- instructional staff at the school with whom he claimed to have used drugs. Bobby Anderson was one of the individuals he mentioned. (tr-19) Of the approximately nine individuals investigated, all were either recommended for disciplinary action or voluntarily resigned. (tr-77) Daniel McPhaul claims that he used cocaine on two occasions at Carol City High School with Bobby Anderson: the first occasion was in early 1985, and the second was approximately two months later. On both occasions Mr. Anderson allegedly brought the cocaine unsolicited to the audio-visual room near the library where Daniel McPhaul was working. On both occasions the alleged activity took place behind the locked door of that room, with no other persons present. (tr-20-28,47) Bobby Anderson and Daniel McPhaul were friends only in the sense that they saw each other frequently at school and talked about sports. They never socialized together outside the work environment. (tr-36,37,119,120) Daniel McPhaul admits that he is a frequent cocaine and marijuana user. He was in a drug rehabilitation program prior to employment at Carol City High School and has been back in a program since the investigation exposed his problems. He has been charged with grand theft but no criminal charges are pending as to the drugs. (tr-25, 29,31,33,50) In the approximate ten years of Bobby Anderson's employment with the Dade County School Board, Daniel McPhaul's allegation is the first complaint of any kind the School Board has received regarding this employee. (tr-65) Mr. Anderson unequivocally denies the allegations. He has never been arrested and has not been contacted by the State's attorney's office with regard to any criminal charges. (tr-118,120-121) The School Board, whose entire case rested on Daniel McPhaul's testimony at hearing, never elucidated why Bobby Anderson might risk his livelihood and reputation by sharing cocaine on school premises. No monetary motive was suggested, and the two men were not particularly buddies. Mr. McPhaul thinks, but is not sure, he mentioned to Bobby Anderson that he was a cocaine user. (tr-43) On the other hand, Daniel McPhaul admitted to his motive for getting Bobby Anderson. He erroneously believed that Bobby Anderson reported him to the Assistant Principal for smoking marijuana with a student and that this was the cause of the investigation and Mr. McPhaul's ensuing problems. (tr-46-48) This admission and the failure to explain Mr. Anderson's alleged action fatally eroded his credibility.
