The Issue Whether just cause exists to suspend Respondent’s employment for the reasons set forth in Petitioner’s Notice of Specific Charges.
Findings Of Fact Petitioner is a duly constituted School Board charged with the duty to operate, control, and supervise all free public schools within the school district of Miami-Dade County, Florida. At all relevant times, Respondent was employed by Petitioner as a school security monitor at Hialeah Middle School ("Hialeah"), and was subject to the collective bargaining agreement between Petitioner and the United Teachers of Dade, which provides Petitioner with the authority to suspend or dismiss Respondent. Respondent’s Disciplinary History Prior to the events that are the subject of this case, Respondent has received multiple reprimands based on his conduct in the workplace. On November 10, 1994, Respondent received a reprimand for insubordination, specifically, for his refusal to attend meetings, repeated tardiness, and falsification of payroll documents. On May 25, 1995, Respondent received a reprimand for failing to remain in his assigned area of supervision on 26 occasions, being tardy to work 16 times, failing to return to work from lunch on seven occasions, failing to properly supervise the parking lot, and failing to respond to radio calls directed to his attention on 13 occasions. On October 16, 1995, Respondent received a reprimand for failing to report to work on time on nine occasions. On September 15, 1997, Respondent received a reprimand for contacting a student at her home by telephone and in person on several occasions. Respondent was directed to refrain from contacting the student, refrain from socializing with students on or off campus, and refrain from inappropriate actions in the course of his employment. On June 5, 1999, Respondent was issued a Summary of Conference for threatening a co-worker with violence and using profanity in the presence of students. On January 12, 2001, Respondent received a reprimand for using abusive and profane language in the workplace and refusing to comply with a reasonable direct order from an administrator. On January 12, 2005, Respondent received a reprimand for creating a hostile work environment, inciting a volatile situation for students, and creating an unsafe environment for the students, staff, and parents who were present. On February 22, 2006, Respondent received a reprimand for creating a hostile work environment, inciting a volatile situation for colleagues, and an unsafe environment for the staff who were present. Respondent’s Interaction with A.G. Ms. Mederos is a language arts teacher at Hialeah, where she worked with Respondent during the 2019-2020 school year. A.G. was a student in Ms. Mederos’s class for the 2019-2020 school year. At the time of the hearing, A.G. was thirteen years old. On February 28, 2020, A.G. testified that she left Ms. Mederos’s class to go downstairs and purchase a bag of chips. When A.G. was downstairs, Respondent approached her and told her that her mom was "pretty" and had a "nice figure." Respondent also initiated a "fist bump" with A.G. Although it was credible standing alone, A.G.’s testimony was corroborated by Ms. Mederos, who witnessed the conversation between A.G. and Respondent. Ms. Mederos could not hear the content of the exchange, but saw the "fist bump" between the two and observed that A.G. appeared to be uncomfortable. Respondent denied that the incident with A.G. occurred, and testified that he had never met or seen A.G. or her parents as of February 28, 2020. Respondents’ testimony on this subject was not credible and is rejected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that The School Board of Miami-Dade County, Florida, enter a Final Order suspending Respondent’s employment with the School Board for ten workdays without pay. DONE AND ENTERED this 20th day of May, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Michele Lara Jones, Esquire S BRITTANY O. FINKBEINER 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 20th day of May, 2021. Samuel Dean School Board of Miami-Dade County, Florida 1450 Northeast Second Avenue, Room 430 Miami, Florida 33132 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761-1526 Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 681 Northwest 78th Terrace, Number 106 Pembroke Pines, Florida 33024 Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761-1526 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Petitioner has just cause to terminate Respondent's employment as a school monitor on the grounds alleged in the Notice of Specific Charges filed September 5, 2002.
Findings Of Fact At all times material hereto, Petitioner was a duly- constituted school board charged with the duty to operate, control and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to Section 4B of Article IX, Constitution of the State of Florida and Section 230.03, Florida Statutes. At all times material hereto, Petitioner employed Respondent as a school security monitor and assigned her to work at Horace Mann, which is a public school located within the school district of Miami-Dade County, and, as will be discussed below, to a temporary duty location. Respondent is a non-probationary "educational support employee" within the meaning of Section 231.3605, Florida Statutes, which provides, in pertinent part, as follows: As used in this section: "Educational support employee" means any person employed by a district school system . . . who by virtue of his or her position of employment is not required to be certified by the Department of Education or district school board pursuant to s. 231.1725. . . . "Employee" means any person employed as an educational support employee. "Superintendent" means the superintendent of schools or his or her designee. (2)(a) Each educational support employee shall be employed on probationary status for a period to be determined through the appropriate collective bargaining agreement or by district school board rule in cases where a collective bargaining agreement does not exist. Upon successful completion of the probationary period by the employee, the employee's status shall continue from year to year unless the superintendent terminates the employee for reasons stated in the collective bargaining agreement, or in district school board rule in cases where a collective bargaining agreement does not exist . . . In the event a superintendent seeks termination of an employee, the district school board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination. The appeals process shall be determined by the appropriate collective bargaining process or by district school board rule in the event there is no collective bargaining agreement. Respondent’s employment with Petitioner began on April 12, 1993. At the times material to this proceeding, Respondent was a member of the United Teachers of Dade (UTD) collective bargaining unit. On October 22, 2001, Metro-Dade Police arrested Respondent on charges of aggravated battery and violation of probation. Respondent remained incarcerated from the date of her arrest until May 15, 2002. Respondent admitted that she had engaged in a fight while she was on probation and that she had thereby violated the terms of her probation. Respondent did not report to work between October 22, 2001, and May 15, 2002. Respondent sent a letter to Petitioner dated December 3, 2001, and addressed "to whom it may concern." The letter reflects that Respondent had previously entered a plea to a charge of domestic violence for which she had been placed on probation. It also reflected that that she was in jail after violating the conditions of her probation by having engaged in a fight. Respondent's letter represented that she would be released from jail on February 4, 2002, and makes it clear that she wanted to retain her employment, if possible. Carolyn Blake was the principal of Horace Mann at the times material to this proceeding. Ms. Blake learned of Respondent’s arrest within days of its occurrence. Shortly thereafter, Ms. Blake forwarded her home telephone number to Respondent and sent Respondent a message to call her collect from jail so that she and Respondent could discuss Respondent’s employment intentions. On December 26, 2001, Respondent placed a collect call to Ms. Blake at Ms. Blake’s home. Ms. Blake accepted the collect call from Respondent. During the ensuing telephone conversation Respondent told Ms. Blake that she would be released from jail by February 4, 2002, and that she hoped to return to work. Ms. Blake told Respondent she should consider resigning from her employment with Petitioner because of the number of days she had been absent without authorized leave. On January 14, 2002, Ms. Blake attempted to communicate with Respondent through a memorandum sent to Respondent's home address. The memorandum reflected that Respondent had been absent from her worksite since October 19, 2001, and that the absences had impeded the effective operation of the worksite. The memorandum requested that Respondent select from among four options and to notify her worksite within three days of the date of the notice regarding her employment intentions. The four options were to (1) notify the worksite of the date she intended to return to work; (2) apply for leave of absence; (3) resign; or (4) retire. The January 14, 2002, memorandum, further advised Respondent that her absences would continue to be unauthorized until she communicated directly with Ms. Blake as to her employment intentions. Petitioner's leave policies do not permit a leave of absence for an incarcerated employee. At the times material to this proceeding, Respondent was not eligible for a leave of absence under Petitioner’s leave polices. On March 11, 2002, Respondent was directed to report to a conference-for-the-record (CFR) scheduled for March 28, 2002, at the School Board’s Office of Professional Standards (OPS) to address, among other things, Respondent’s arrest; her violation of School Board rules dealing with employee conduct; her excessive absenteeism; and her future employment status with Petitioner. The notice that instructed Respondent to attend the CFR was mailed to Respondent's home address. On March 28, 2002, Respondent was still incarcerated, and she did not attend the scheduled CFR scheduled for that day at OPS. On March 28, 2002, a CFR was held at OPS in Respondent’s absence. At the CFR held on March 28, 2002, Respondent’s employment history with the School Board was reviewed, including the number of days that Respondent had been absent from her worksite, with special emphasis on the number of days she had been absent without authorized leave. On March 28, 2002, Ms. Blake recommended that Respondent’s employment with the School Board be terminated due to Respondent’s excessive absenteeism and because of the adverse impact Respondent’s absenteeism was having on the operation of the school site. As of March 28, 2002, Ms. Blake had received no communication from Respondent since their telephone conversation on December 26, 2001. Despite having Ms. Blake’s home telephone number and knowing that she would accept a collect call, Respondent made no effort to contact Ms. Blake after Respondent learned that she would not be released from jail on February 4, 2002. By notice dated April 23, 2002, Respondent was directed to appear on May 8, 2002, at a meeting at OPS to address the employment action that had been recommended by Ms. Blake. This written directive was sent by mail to Respondent's home address. As of May 8, 2002, Respondent was still incarcerated. Because of her incarceration, Respondent did not attend the meeting and had not reported to her worksite. On May 8, 2002, the scheduled meeting was held at OPS. As a result of the meeting, the Superintendent recommended that the School Board terminate Respondent's employment and scheduled the recommendation to be considered by the School Board at its meeting of June 19, 2002. On May 16, 2002, the day after she was released from jail on May 15, 2002, Respondent called Ms. Blake, who instructed her to meet with an administrator at the regional office. Respondent complied with that directive and was ordered by the administrator to report to an alternative work site pending the School Board’s action on the recommendation to terminate her employment. Respondent refused to comply with the order to report to an alternate worksite because she did not want to jeopardize her claim for unemployment compensation benefits. From October 22, 2001, through May 15, 2002, Respondent was incarcerated and was absent from work without authority. From May 16, 2002, through June 19, 2002, Respondent was absent without authority and either failed or refused to report to work. For the school year 2001-2002, Respondent accumulated 142 unauthorized absences. On June 19, 2002, the School Board suspended Respondent and initiated dismissal proceedings against Respondent on the following grounds: excessive absenteeism and/or abandonment of position; willful neglect of duty; and violation of School Board rules dealing with employee conduct. Respondent’s family received Ms. Blake’s memorandum and the notices of scheduled meetings that were mailed by Petitioner to Respondent’s home address while Respondent was incarcerated. Respondent testified that she did not see the memorandum and notices until after she was released from jail. There was no justification for Respondent’s failure to contact Ms. Blake after Respondent learned she would not be released from jail on February 4, 2002. There was no justification for Respondent's failure to attempt to comply with Petitioner's leave policies. There was no justification for Respondent’s refusal to report to the alternate worksite as instructed by the administrator at the regional office.
Recommendation Based upon the foregoing findings of act and conclusions of law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Facts and Conclusions of Law set forth herein. It is further RECOMMENDED that the final order find Respondent guilty of excessive absenteeism, gross insubordination, and willful neglect of duty as alleged in Counts I and II of the Notice of Specific Charges. It is further RECOMMENDED that the final order sustain Respondent's suspension without pay and terminate her employment as a school monitor. DONE AND ENTERED this 10th day of December, 2002, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 10th day of December, 2002.
The Issue Whether Petitioner has just cause to terminate the professional service contract with Respondent on the grounds of immorality, gross insubordination and neglect of duties, and misconduct in office.
Findings Of Fact At all times material hereto, Respondent was employed by the School Board pursuant to a professional service contract. He is certified to teach Elementary Education, grades K through 6. He began his employment with the School Board on October 10, 1983, and he was assigned at different times pertinent to this proceeding to Broadmoor Elementary School (Broadmoor), Allapattah Elementary School (Allapattah), Touissant L'Ouverture Elementary School (L'Ouverture), or an alternative assignment. At all times material hereto, Petitioner was a duly constituted school board charged with the duty to operate, control and supervise all free public schools within the School District of Dade County, Florida. On April 3, 1989, while carrying out his duties as a teacher at Broadmoor, Respondent was involved in an incident with an eight year old third grade female student. The School Board initiated disciplinary proceedings against the Respondent that were subsequently referred to the Division of Administrative Hearings where it was assigned DOAH Case No. 89-3358. Following a formal hearing in DOAH Case No. 89-3358, a Recommended Order was entered which found Respondent guilty of misconduct in office and recommended that his employment be suspended without pay for ten days. The School Board adopted the Hearing Officer's Recommended Order as its Final Order on March 21, 1990. The Hearing Officer found that the Respondent and the child had accidentally fallen to the ground while the Respondent was using an inappropriate technique to restrain the child. The Hearing Officer further found that the Respondent had pushed the child back to the ground when she tried to stand after the fall. As a result of this incident, the student suffered scrapes on her face and a swollen lip. Pertinent to this proceeding, the Recommended Order contained the following statement, which may properly be considered to be a warning to the Respondent: ". . . a 250 pound man must demonstrate more caution and restraint in handling a third grade student." The School Board adopted this warning as a part of its Final Order and the warning served as a directive to the Respondent. The Hearing Officer in DOAH Case No. 89-3358 further found that Respondent's effectiveness as a teacher had been impaired as a result of that incident. As a result of the incident involved in DOAH Case 89-3358, the Commissioner of Education and Respondent entered into a "Deferred Prosecution Agreement," to be implemented through the end of the 1990-91 school year. Respondent was directed to complete a college course in conflict resolutions, complete a college course in behavior management, to comply with all Board rules, State Board of Education rules and to perform his duties in a professional manner satisfactory to the Board and in compliance with the rules of the Florida Department of Education. Petitioner's Office of Professional Standards (OPS), through Dr. Joyce Annunziata, monitored the implementation of this agreement. On March 21, 1990, the School Board entered its Final Order in DOAH Case No. 89-3358. Subsequent to that date, the Respondent was assigned to teach at Allapattah. Respondent reported to work at Allapattah on March 23, 1990. He was given a faculty handbook and verbal directions concerning school procedures. The substitute teacher who had been assigned to the class previously, offered to update Respondent on each student, but Respondent rejected the help. On April 4, 1990, Respondent, who is six feet tall and weighs approximately 250 pounds, towered over a small male student and yelled loudly at the student for chewing gum. He forced the student to stand in front of his class with his mouth open and pockets out. On April 23, 1990, Respondent was formally observed in the classroom by his principal, Mr. Jones. Using the Board's Teacher Assessment and Development System (TADS), Mr. Jones rated Respondent unsatisfactory in preparation and planning and classroom management. Respondent's lesson plans were incomplete and lacked the required components. Respondent's students were off task and not paying attention when Mr. Jones observed the class. On April 27, 1990, a conference for the record was held involving Respondent, Dr. Annunziata, Mr. Jones, and one other administrator. As conditions of his employment, Respondent was directed to participate in assertive discipline training and to undertake coursework through the Teacher Education Center (TEC) in classroom management, disciplinary techniques and skills for improving student behavior. Respondent was prescribed help to improve his deficiencies. He was instructed to write lesson plans and review those plans with the grade level chairperson. Respondent was told to update his assertive discipline plan and to intervene quickly when off task or disruptive behavior occurred. He was instructed to read the TADS Prescription Manual for additional techniques and strategies to improvement classroom management. On April 27, 1990, the school counselor met with Respondent to review and reinforce assertive discipline techniques and to offer support and assistance. On May 3, 1990, Respondent visited two fifth grade classes to observe classroom management techniques. On May 8, 1990, Felipe Garza, a teacher and grade chairperson at Allapattah, heard a disturbance in Respondent's classroom and entered the classroom. A group of students had locked another student in a closet in the rear of Respondent's classroom. Respondent had told the students to let the student out of the closet, but his instruction had been ignored. Respondent remained seated at his desk and took no further action to release the student from the closet. It appeared to Mr. Garza that Respondent had no interest in restoring order to his classroom or in releasing the student from the closet. Because of Respondent's prior discipline by the School Board, he was reluctant to physically remove the student from the closet. Mr. Garza asked another student to let the child out of the closet and took steps to restore order to the classroom. Thereafter Mr. Jones, the principal, entered Respondent's classroom and order was immediately restored. Two students had actually been locked in the closet, but the other student had been let out of the closet before Mr. Garza came into the classroom. While neither student was placed in danger by being locked in the closet, it is clear that Respondent failed to maintain control over his classroom. Instead of using appropriate disciplinary techniques to restore order to his class, Respondent elected to take no action. Following the incident on May 8, 1990, Mr. Jones referred Respondent to the Employee Assistance Program (EAP). The referral form indicated that the observed behavior causing the referral involved altercations with students and Respondent's exercise of poor judgment. Mr. Jones testified at the formal hearing that he had observed Respondent shouting at students, pulling and grabbing students, and hitting students. Respondent's students were disruptive, out of control, and running in the hallway. The students had been throwing objects, such as rubber bands, spitballs, and paperclips. Mr. Jones stated the following in his request for an evaluation of the Respondent: Please consider our request for a medical fitness determination on John Ackley, a fifth grade teacher at Allapattah Elementary School. Because of several incidents involving disruptive behavior and an atmosphere not conducive to our students's learning, we fear for the safety of our students. The classroom instructional program has suffered because of the off-task behavior of students and the inability of the teacher to redirect this behavior. On June 20, 1990, a conference for the record was held with Respondent to address the incident of the students being locked in the closet. While the incident was being investigated, Respondent was placed on alternate assignment in the region office without student contact for approximately six weeks. On July 18, 1990, Respondent was issued a letter of reprimand from Mr. Jones for allowing the two students to remain locked in the closet and for refusing to remove the students from the closet. Respondent was directed to maintain control and discipline of his students. He was directed to immediately implement appropriate procedures for insuring safety. He was "directed to refrain from using inappropriate procedures in dealing with inappropriate classroom behavior of students". He was directed to follow professional ethics and School Board rules. He was put on notice that any recurrence would result in additional disciplinary action. Respondent's annual evaluation for the 1989-90 school year was overall unacceptable and was unacceptable in professional responsibility. He was rated unacceptable for failure to comply with school site rules and policies and for failure to perform assigned professional duties. He was directed to read the Code of Ethics of the Education Profession in Florida (Ethics Code) and the Principles of Professional Conduct for the Education in Florida (Professional Conduct Principles) and to delineate a written plan on ethics and how they would apply in his classroom daily. He was to review the staff hand book section on classroom discipline procedures. His salary was frozen at the previous year's level. At Allapattah Respondent was unable to control the students in his classroom, which resulted in an atmosphere that was dangerous to students' learning and safety. His lack of control was the result of poor planning, an inability to communicate with the students, and the failure to use appropriate disciplinary techniques. For the 1990-91 school year, and thereafter, Respondent was assigned to L'Ouverture where he was assigned to teach a "classroom indoor suspension" class. The "classroom indoor suspension" class consisted of students who had been disruptive of other classes and who could not be controlled by other teachers using ordinary means. 1/ On January 15, 1993, James Maisonnerve, a fourth grade student at L'Ouverture, was fighting and hitting other students in the cafeteria. James often caused trouble at school and his mother had difficulty disciplining him at home. Respondent, who was on duty at the cafeteria, forced James to sit down next to him and restrained James by placing James' arm under his (Respondent's) leg. James tried to escape from the Respondent and, in the process, twisted his arm. James was injured as a result of this incident and he experienced pain. When James came home from school, his mother observed that his hand was swollen and called the police. A fire-rescue unit was called and he was taken to Jackson Memorial Hospital where x-rays revealed no fracture. His arm was swollen and had to be bandaged. Petitioner alleged that Respondent twisted James's arm, causing the injury. It is found that the injury occurred when James tried to free himself from this restraint and that Respondent did not intentionally twist James's arm. It is further found that the technique used by Respondent to restrain James was inappropriate. Keyota Ragin was a fourth grade student at L'Ouverture during the 1992-93 school year and was, at the time pertinent to this proceeding, approximately three feet six inches tall and weighed approximately 60 pounds. Keyota frequently caused trouble. Keyota testified Respondent had, on May 25, 1993, grabbed her by her arm and pushed her into the line so that her jaw hit another boy's head. Keyota also testified that when she stepped out of line again and laughed, Respondent hit her with his fist on the top of her head. Keyota testified that her injuries hurt and caused her to cry. Keyota further testified that when she returned to Respondent's classroom, Respondent grabbed her by the arm and put her in the corner and that he later grabbed her by the hair and pulled her across the room to her seat. Keyota's face was swollen when she arrived at home after school, and her mother called the police. Respondent testified that Keyota was hit in the face by a fellow student named James. Respondent denied that he pushed Keyota into another student, that he struck her, that he grabbed her, or that he pulled her hair. Respondent's denial is just as credible as Keyota's version of the incident. Consequently, it is found that Petitioner failed to establish that Respondent pushed, struck, grabbed, or pulled the hair of Keyota. While this incident was being investigated, Respondent was placed on alternative assignment for one month and was out of contact with students. For the entire semester, he only worked in a classroom for six weeks. Wendy Steiner, a friend and fellow teacher of the Respondent at L'Ouverture, observed Respondent forcing students to stand with their arms outstretched while holding books and she also observed Respondent restraining students by leaning against them. These are inappropriate disciplinary techniques. Respondent's annual evaluation for the 1992-93 school year was overall unacceptable and unacceptable in the category of professional responsibility. Respondent was found deficient because he failed to comply with Board policy and rules regarding corporal punishment and employee conduct and because he violated the labor contract provisions concerning student discipline and instructional planning. He was also found deficient in following the Ethics Code and the Professional Conduct Principles. He was found deficient in compliance with site directives concerning the use of physical means to effect discipline and maintaining a safe learning environment for students. He was given a prescription to help him over come his deficiencies. During the last three years of employment, Respondent has spent approximately one year at alternate assignments, without student contact, pending investigations. He received his full teacher's salary during those alternate assignments. The Respondent's effectiveness as a teacher in the Dade County School System has been impaired by his continued use of inappropriate disciplinary techniques and his service to the School Board has been unproductive. Respondent has exercised poor judgment after repeated efforts to train him in the use of appropriate disciplinary techniques. Respondent's rough handling of students has received notoriety in the school and in the community. His conduct has reflected poorly on himself and on the school system. The Board has also adopted School Board Rule 6Gxl3-5D-l.08 which provides teachers the authority to direct and discipline students and requires teachers to keep good order in the classroom and in other places in which responsibility for students is assigned. The Board has also adopted School Board Rule 6Gxl3-5D-l.07 which prohibits the corporal punishment of students. On November 3, 1993, the School Board suspended Respondent's employment without pay and initiated these dismissal proceedings against him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County, Florida issue a Final Order which adopts the findings of fact and the conclusions of law contained herein and which sustains the suspension without pay of John N. Ackley and which terminates his professional service contract with the School Board of Dade County, Florida. DONE AND ENTERED this 14th day of June, 1994, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 1994.
The Issue The issue in this case is whether there is just cause for a thirty-day suspension of Priscilla Parris' employment with the Miami-Dade County School Board.
Findings Of Fact Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within Miami-Dade County, Florida, pursuant to Article IX §4(b) of the Florida Constitution; and section 1001.32, Florida Statutes. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Parris started her employment with Petitioner in 1982. She has not been subject to any prior disciplinary action. Parris was employed pursuant to a professional services contract, a collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade. After holding various teaching positions with the School Board, Parris was assigned to Benjamin Franklin Elementary School ("Franklin") in 2005. At all times material to this matter, Parris was a teacher at Franklin. On April 21, 2010, Adrian Rogers ("Rogers"), Assistant Principal at Franklin, was conducting a faculty meeting in the school's media center. During the meeting while at the podium in the front of the media center, Rogers solicited volunteers to serve on an interview committee for a new principal or assistant principal, in case one had to be replaced. Parris raised her hand to volunteer for the interview committee. Rogers handpicked the interview committee from the volunteers but did not select Parris. Instead, she chose the non-classroom teachers who volunteered for the interview committee. As the faculty meeting continued, Parris voiced her concerns to Rogers that the interview committee consisted of non-classroom teachers. Rogers responded that she would talk to Parris about it after the meeting and would not discuss the matter further during the faculty meeting. After the meeting, Parris got up from her seat and walked1 towards Rogers in the front of the room questioning the committee selection. Rogers' response upset Parris and both women became agitated. Both raised their voices during the exchange of words and got louder and louder. The heated disagreement turned into an argument. At some point during the heated discussion, Parris told Rogers, "Don't talk to me like that. I am old enough to be your mother." Rogers responded and Parris retorted, "I don't think your mother would approve, if she was alive, you talking to someone older than you [like that]. . . you better watch your back because you are going to regret disrespecting me." Parris also referred to Rogers as a little girl. Rogers then walked to a different area in the media center to get her belongings and Parris attempted to follow her. Rogers did not like what Parris said to her and felt that Parris was coming toward her as though Parris was going to attack her. Rogers told Parris "You need to step back." As Parris walked toward Rogers to continue the discussion and explain herself,2 Charles Johnson ("Johnson") stepped in front of her and she bumped him as he blocked her from following Rogers. When Johnson stood between the two, he lightly held Parris near the shoulder with an open hand. Johnson told Parris, "This is not worth it. You don't want to do this." At that point, Parris stopped following Rogers and backed away. No physical contact ever took place between Parris and Rogers. Several teachers were surprised by the incident between Parris and Rogers and left the media center quickly after the faculty meeting. Wayne Kirkland ("Kirkland"), the librarian, walked over to Rogers and Parris because both voices were so loud. He saw how upset Rogers was and calmed Parris down by telling her, "let's walk outside." Parris left with Kirkland and he walked her from the media center to her car. Soon thereafter, Parris left the school grounds in an attempt to make her dentist appointment. After an investigation of the incident in the Franklin media center, the matter ultimately was brought to the attention of the Administrative Director, who by letter on or about January 31, 2011, advised Respondent that a determination had been made that the Superintendent would recommend suspension without pay to the School Board. On February 9, 2011, the School Board followed the recommendation and took action to suspend Respondent without pay for 30 workdays. Parris timely requested an appeal of the disciplinary action.
Recommendation Upon consideration of the Findings of Fact and the Conclusions of Law reached, it is RECOMMENDED that Miami-Dade County School Board enter a final order rescinding the 30-day suspension with back pay. DONE AND ENTERED this 30th day of June, 2011, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY 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 30th day June, 2011.
The Issue The issue in this case is whether the Respondent, Angel Guzman, committed the violations alleged in a Notice of Specific Charges filed by the Petitioner, the School Board of Miami-Dade County, Florida, on November 14, 2001, and, if so, the penalty that should be imposed.
Findings Of Fact Petitioner, the Miami-Dade County School Board (hereinafter referred to as the "School Board"), is a duly- constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Article IX, Florida Constitution; and Section 230.03, Florida Statutes. At all times material to this proceeding, Angel Guzman was employed as a teacher by the School Board and assigned to Miami Edison Middle School (hereinafter referred to as "Edison"). Mr. Guzman is and has been employed by the School Board pursuant to an annual service contract. Prior to his employment by the School Board, Mr. Guzman was employed by New York City as a teacher assistant for three years and as a teacher for four years. He has been employed as a graphic communications teacher by the School Board since 1998, approximately two and a half years. Prior to the incidents that are the subject of this proceeding, Mr. Guzman had never been the subject of a School Board personnel investigation. The February 16, 2001, Incident On February 16, 2001, Mr. Guzman was handing out reading logs in a FCAT preparation class at Edison. The students in the class were seventh graders. Sherwin JeanPierre, a student in the class, and another student asked their fellow student, Maurice Barnhill to get their reading logs from Mr. Guzman. Maurice picked up the logs, but was confronted by Mr. Guzman who, when he learned that Maurice was picking up logs for others, snatched the logs out of his hands and told him to return to his seat. An argument between Mr. Guzman and Maurice ensued. The teacher and student yelled at each other, Mr. Guzman forcefully pushed Maurice on the shoulder, and Mr. Guzman said "coño" to Maurice, which means "damn" in Spanish. Mr. Guzman eventually became so angry that he grabbed a wooden stool located between him and Maurice, swung it toward Maurice, and hit Maurice on the leg with the stool. While the stool hurt Maurice, he suffered no significant injury. The Second February 2001 Incident Following the February 16, 2001, incident, Mr. Guzman and another student were involved in a verbal confrontation. The situation was defused by Theron Clark, an Assistant Principal at Edison, and a security monitor. Following the confrontation, Mr. Clark and Dr. Peggy Henderson Jones, another Assistant Principal, met with Mr. Guzman. At this meeting, Mr. Guzman indicated that he was very stressed and did not want to return to his class. Mr. Guzman was allowed to go home the day of the incident and was subsequently referred to the Employee Assistance Program. Disciplinary Action Against Mr. Guzman for the February 16, 2001, Incident A conference-for-the-record (hereinafter referred to as the "conference") was held with Mr. Guzman on March 6, 2001, by Ronald D. Major, the Principal at Edison. The conference was attended by Mr. Major, Mr. Theron, Eduardo Sacarello, a United Teachers of Dade representative, and Mr. Guzman. The purpose of the conference was to discuss Mr. Guzman's non-compliance, during the February 16, 2001, incident with Maurice Barnhill, with school rules, School Board Rules 6Gx13-5D-1.07, dealing with corporal punishment, and 6Gx13-4A-1.21, dealing with employee conduct, and the Collective Bargaining Agreement between the School Board and the United Teachers of Dade. During the conference, Mr. Guzman was advised that a letter of reprimand would be issued, and he was directed to immediately implement procedures for the removal of disruptive students consistent with the faculty handbook. Mr. Guzman was also warned that any recurrence of the type of violation committed by him during the February 16, 2001, incident would result in further disciplinary action. A written reprimand to Mr. Guzman was issued on March 7, 2001, by Mr. Major. In the reprimand, Mr. Major again warned Mr. Guzman that any recurrence of the infraction would result in additional disciplinary action. The April 25, 2001, Incident On April 25, 2001, during a class under Mr. Guzman's supervision, Mr. Guzman caused a document to be printed from a class computer. A student took the paper and gave it to another student in the class, Ian Lightbourne, who asked for the paper. Ian placed the paper, even though it did not belong to him, in his book bag. When Mr. Guzman came to retrieve the paper he had printed, found it was gone, and asked if anyone knew what had happened to it. Although no one answered, Mr. Guzman suspected Ian and asked him to open his book bag. Ian complied and Mr. Guzman found the paper. Mr. Guzman became irate and began yelling at Ian to "not touch my things." Mr. Guzman then grabbed Ian by the arm and started to pull him toward the front of the classroom. Ian, who was sitting on a stool, lost his balance and fell to his knees. Mr. Guzman continued to pull Ian, who began to cry and yell, "Let me go," the length of the classroom on his knees. Mr. Guzman pulled Ian to a corner of the classroom where he banged Ian's arm against a metal darkroom door. Ian had previously broken the arm that Mr. Guzman grabbed and had only recently had the cast removed. Although the incident did not result in any serious injury to Ian, it was painful and caused his mother to seek medical attention for her son. On April 27, 2001, as a result of the April 25, 2001, incident, Mr. Guzman was assigned to alternative work at his residence, with pay. Mr. Guzman was not allowed to have any contact in his assignment with students. On August 14, 2001, the County Court in and for Dade County, Florida, entered a "Stay Away Order" in Case No. M0130143 requiring that Mr. Guzman stay away from, and have no contact with, Ian. Disciplinary Action Against Mr. Guzman for the April 25, 2001, Incident On August 29, 2001, another conference-for-the-record (hereinafter referred to as the "second conference") was held. The second conference was attended by Julia F. Menendez, Regional Director, Region IV Operations of the School Board; Sharon D. Jackson, District Director; and Mr. Guzman. The second conference was held at the School Board's Office of Professional Standards. The second conference was conducted to discuss Mr. Guzman's performance assessments, non-compliance with School Board policies and rules regarding violence in the workplace and corporal punishment, insubordination, noncompliance with site directives regarding appropriate use of discipline techniques, violation of the Code of Ethics and Professional Responsibilities, and Mr. Guzman's future employment with the School Board. At the conclusion of the second conference, Mr. Guzman was informed that his alternative work assignment would be continued, that his actions would be reviewed with the Superintendent of Region IV Operations, the Assistant Superintendent in the Office of Professional Standards, and Edison's principal, and he was directed to refrain from touching, grabbing, hitting, or dragging any student for any reason. Subsequent to the second conference, the School Board's Office of Professional Standards concluded that Mr. Guzman had violated School Board and state rules. Therefore, an agenda item recommending dismissal of Mr. Guzman was prepared for the School Board to consider. That agenda item was discussed with Mr. Guzman on October 16, 2001, and was considered at the School Board's meeting of October 24, 2001. At its October 24, 2001, meeting, the School Board suspended Mr. Guzman without pay and approved the initiation of dismissal proceedings against him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the decision of the School Board of Miami-Dade County, Florida, suspending Angel Guzman without pay be sustained and that his employment with the School Board of Miami-Dade County, Florida, be terminated. DONE AND ENTERED this 27th day of March, 2002, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 2002. COPIES FURNISHED: Madelyn P. Schere, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Frank E. Freeman, Esquire 666 Northeast 125th Street Suite 238 Miami, Florida 33161 Merrett R. Stierheim, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue Whether Respondent's employment should be terminated.
Findings Of Fact At all times pertinent to this case, Tuff was employed by the School Board as a custodian and assigned to one of the School Board's transportation centers. At all relevant times, Tuff was an "educational support employee," who has successfully completed his probationary period within the meaning of Section 1012.40, Florida Statutes; a member of a collective bargaining unit represented by the American Federation of State, County, and Municipal Employees, Local 1184 (AFSCME); and was covered by a collective bargaining agreement between the School Board and AFSCME (AFSCME Contract). For at least two years prior to his termination, Tuff's attendance record and job performance were poor. Tuff repeatedly violated School Board rules regarding unauthorized absences and or procedures relating to medical leave. Under the AFSCME contract, the School Board could have taken disciplinary action, including termination, on numerous occasions during this period, but did not. By way of defense, Tuff contended that at all relevant times, the School Board knew or should have known that Tuff's absences were related to a medical condition which has since been mitigated through proper treatment. Tuff's evidence concerning what, if any, medical condition he had was unpersuasive. It is therefore unnecessary to reach the question of whether Tuff's medical condition, if proved, would have afforded a legal defense to his absences from work under the facts and circumstances of this case. Tuff's absences created a morale problem among co- workers, who were chronically imposed upon to perform tasks which properly belonged to Tuff. Tuff's co-workers complained to mutual supervisors. Supervisors, in turn, spoke frequently to one another and to Tuff about his attendance record, all of which was disruptive to the workplace. Although it is a violation of School Board policy to discuss a personnel issue with a non-employee, on one occasion, a supervisor in Tuff's chain of command, who had known "Mr. Tuff and his entire family for over 20 years," discussed Tuff's absenteeism with Tuff's father. By the spring of 2004 Petitioner decided it would no longer tolerate Tuff's inability to comply with its rules prohibiting unauthorized absence. At least one supervisor concluded there was "no other alternative but to follow the procedures and recommend termination." Petitioner thereafter commenced to document Respondent's unauthorized absences from the workplace, and to provide Respondent with applicable statutory and contractual notice regarding his failure to comply with Petitioner's relevant policies. More specifically, on April 8, 2003, and May 5, 2003, Tuff received verbal warnings for unauthorized absences. On June 18, 2003, Tuff received a written warning regarding continued unauthorized absences. The School Board documented and proved 11 unauthorized absences in the first and second quarters of 2003. Under the AFSCME contract, ten unauthorized absences in a 12-month period constitute grounds, standing alone, for termination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating Tuff's employment. DONE AND ENTERED this 5th day of May, 2005, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 5th day of May, 2005. COPIES FURNISHED: Denise Wallace, Esquire Miami-Dade County Public Schools 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Manny Anon, Jr., Esquire AFSCME Council 79 99 Northwest 183rd Street, Suite 224 North Miami, Florida 33169 Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132-1394 Honorable John L. Winn Commissioner of Education Department of Education 325 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges? If so, whether such conduct provides the School Board of Dade County, Florida, with just or proper cause to take disciplinary action against him? If so, what specific disciplinary action should be taken?
Findings Of Fact Based upon the evidence received at the formal hearing, the factual stipulations of the parties, and the record as a whole, the following Findings of Fact are made: The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Dade County, Florida. At all times material to the instant case, Respondent was an annual contract employee of the School Board occupying a paraprofessional position. He currently is under suspension as a result of the incident described in the Notice of Specific Charges. Respondent's employment with the School Board began on October 2, 1987, when he was hired as a part-time custodian and assigned to Hialeah Middle School (HMS). He remained a part-time custodian at HMS until 1989, when he became a teacher aide at the school. He was a teacher aide at HMS from 1989 to 1992. In 1992, he filled a teacher assistant position at the school. He stayed in that position until he was administratively reassigned in April of 1994, following the incident which led to the initiation of the instant disciplinary proceeding. As a teacher assistant at HMS during the 1993-94 school year, Respondent was a member of a collective bargaining unit represented by the United Teachers of Dade (UTD) and covered by a collective bargaining agreement between the School Board and UTD, effective July 1, 1991, through June 30, 1994 (UTD Contract). 2/ Article IV of the UTD Contract addressed the subject of "employer rights." Section 1 of Article IV provided, in part, that the School Board had the exclusive right to suspend, dismiss or terminate employees "for just cause." Article XIX of the UTD Contract addressed the subject of "employee rights and due process." Section 2 of Article XIX provided, in part, that "[d]ismissals and suspensions shall be effected in accordance with applicable Florida statutes, including the Administrative Procedures Act (APA)." Article VII of the UTD Contract addressed the subject of a "safe learning environment." Section 1, paragraph A, of Article VII provided as follows: A safe and orderly learning environment is a major priority of the parties. Such an environment requires that disruptive b havior be dealt with safely, fairly, consis- tently and in a manner which incorporates progressive disciplinary measures specified in the Code of Student Conduct. Section 1, paragraph B, of Article VII provided, as follows: Rules governing discipline are set forth in the Code of Student Conduct, School Board Rules, and Procedures for Promoting and Main- taining a Safe Learning Environment and, by reference, are made a part of this Contract. Guideline No. 4 of the School Board's Procedures for Promoting and Maintaining a Safe Learning Environment (School Board's Procedures), which were incorporated by reference in Section 1, paragraph B, of Article VII of the UTD Contract, addresses the subject of "child abuse" and provides, in part, as follows: CURRENT LAW AND/OR PRACTICE Section 415.504, Florida Statutes, requires mandatory reporting of all cases of child abuse. This statute applies to suspected or confirmed reports against any person, regard- less of occupation, who is alleged to be involved or any person who is alleged to have committed any act of child abuse. School personnel are not exempted from mandatory reporting of child abuse even when a fellow employee is suspected or confirmed as the abuser. WHEN IN DOUBT, REPORT ... CHILD ABUSE Child abuse is defined to include harm or threatened harm to a child's health or wel- fare and/or willful or negligent acts which result in: neglect; malnutrition; sexual abuse; physical injury; mental injury; or failure to provide sustenance, clothing, shelter, or medical treatment. Any person, including, but not limited to, physician, nurse, teacher, social worker, or employee of a public or private facility serving children, who has reason to believe that a child has been a subject of child abuse, shall report this information as indicated in the procedures outlined in this guideline. Knowing and willful failure to report sus- pected or confirmed abuse, and knowing and willful prevention of another from making such a report, is a crime punishable by up to two months in jail and up to a $500 fine, Sections 775.082 and 775.083, Florida Statutes, and may be subject to disciplinary action of Dade County Public Schools. It is suggested that once a report is made, the principal or appropriate school administrator be notified. PROCEDURES . . . SCHOOL RELATED CHILD ABUSE REPORTING . . . Anyone aware of suspected or confirmed child abuse committed by School Board employees acting in their official capacity, shall immediately make a report to the principal or designee who shall immediately make a report to the Dade County Public Schools Police and the Region Office. Reasonable Force and Child Abuse. In some instances, a need may exist to differentiate between reasonable force and child abuse. Florida Statute 232.27 provides that: Subject to law and to the rules of the district school board, each teacher or other member of the staff of any school shall have such authority for the control and discipline of students as may be assigned by the princi- pal or designee and shall keep good order in the classroom and in other places in which the teacher or other staff member is assigned to be in charge of students... Florida Statute 232.275 provides that: ...Except in the case of excessive force or cruel and unusual punishment, a teacher or other staff member, a principal or designee, or a bus driver shall not be civilly or criminally liable for any action carried out in conformity with the state board and district school board rules regarding the control, discipline, suspension, and expulsion of students... An administrator must report to Dade County Public Schools Police and the Region Office all cases involving Board Employees where: excessive physical force or physical contact that was used was greater than necessary use of unauthorized physical action results in injury to a student corporal punishment is administered to a student Guideline No. 5 of the School Board's Procedures addresses the subject of "illnesses and injuries to students" and provides, in part, as follows: CURRENT LAW AND/OR PRACTICE All employees responsible for supervision of students and student activities are to take precautions to protect the life, health, and safety of every student in an effort to reduce or eliminate accidents, injuries, and illnesses. . . . Guideline No. 9 of the School Board's Procedures addresses the subject of "corporal punishment" and provides as follows: CURRENT LAW AND/OR PRACTICE Corporal punishment is prohibited in the Dade County Public Schools. This prohibition extends to parents or guardians on school grounds. Corporal punishment is physical force or physical contact applied to the body as punishment. Section 228.041(27), Florida Statutes, defines corporal punishment as: ... the moderate use of physical force or physical contact by a teacher or principal as may be necessary to maintain discipline or to enforce school rules. However, the term "corporal punishment" does not include the use of such reasonable force by a teacher or principal as may be necessary to protect himself or other students from disruptive students. The use of physical restraint techniques in accordance with School Board Rule 6Gx13-6A-1.331 (Special Programs and Procedures and . . . . the Contract Between the Dade County Public Schools and United Teachers of Dade is not corporal punishment. Prior to March 10, 1994, Respondent was aware of the School Board's rules prohibiting the use of corporal punishment and requiring employees to report cases of suspected or actual child abuse. Section 1, paragraph D, of Article VII of the UTD Contract provided, in part, as follows: The parties recognize the potential for difficult circumstances and problems related to the use of corporal punishment. Accordingly, the parties agree that such punishment shall be prohibited as a disciplinary option, and further agree to act affirmatively in continuing to identify and implement more effective alter- natives for dealing with student behavior. "Physical restraint" was the subject of Section 3 of Article VII of the UTD Contract, which provided as follows: There are instances where exceptional students exhibit behaviors that are disruptive to the learning environment and pose a threat to the safety of persons or property. Exceptional students enrolled in pro- grams for the emotionally handicapped, severely emotionally disturbed, and autistic, because of the nature of their disability, may on occasion experience impaired impulse control of such severity that use of physical restraint is necessary to prevent such students from inflicting harm to self and/or others, or from causing damage to property. Students enrolled in other exceptional student education programs may also display behaviors that require the use of restraint. The purpose of physical restraint is to prevent injury to persons or destruction of property. It is not to be used to "teach the child a lesson" or as punishment. Subject to available funding, teachers or paraprofess- ionals shall, upon request, be afforded an opportunity to learn physical restraint techniques. Strategies for the prevention of aggressive behavior shall be utilized on an ongoing basis. However, when a explosive event occurs without warning and is of such degree that there is imminent risk to persons or property, the use of physical restraint techniques is authorized for such circumstances. Physical restraint refers to the use of physical intervention techniques designed to restrict the movement of a student in an effort to de-escalate aggressive behavior. In order to promote a safe learning environment, the district has authorized for implementation specific physical restraint procedures to be used in programs for the emotionally handicapped, severely emotionally disturbed, and autistic. These specific procedures may also be used with other exceptional students when it is indicated on the student's Individualized Education Program (IEP). These procedures include, but are not limited to, holding and escape techniques which, when implemented, prevent injury to students and staff or prevent serious damage to property. Specific physical restraint procedures may also be approved for use with other specific student populations upon mutual agreement of the parties and would be reviewed on an annual basis. The Board shall provide for the training of instructional and support staff in physical restraint techniques as well as strategies for prevention of aggressive behavior. Training manuals developed for this purpose are, by reference, incorporated and made a part of this agreement. Physical restraint techniques provided in training programs approved by the Board are authorized and, when utilized in accor- dance with the training provided and these guidelines, shall not constitute grounds for disciplinary action. If a teacher is not trained in the use of approved physical restraint procedures and is faced with an emergency, the teacher is authorized to employ the moderate use of physical force or physical contact as may be necessary to maintain discipline or to enforce School Board Rules 6Gx13-5D-1.07 and 1.08. The appropriate use of these procedures shall not constitute a violation of the corporal punishment policy (Board Rule 6Gx13-5D-1.07). The use of physical restraint techniques shall be discussed as part of the Individualized Educational Program (IEP) review development process. The Local Education Agency (LEA) representative, at the initial IEP meeting and/or annual review, shall provide notifica- tion to parents of physical restraint proced- ures. When parents or surrogates are not present at the meeting, written notification to them regarding the use of physical restraint will be provided. For an exceptional student enrolled in a program other than for the emotionally handicapped, severely emotionally disturbed or autistic, a recommendation for the use of board-approved physical restraint procedures must be made by the multi-disciplinary team (M-Team) and be documented on the student's IEP form before the use of such procedures may be authorized. The use of physical restraint must be documented as a part of the Student Case Management (SCM) System. Instructional or support staff who utilize physical restraint techniques shall complete the SCM Student Services Form to record student case information regarding each incident. Direct- ions shall be provided to instructional and support staff to assist them in completing the appropriate form. In accordance with Section 3 of Article VII of the UTD Contract, the School Board offered (and continues to offer) a Safe Physical Management Crisis Intervention Training Program (SPM Training Program) for its instructional and non-instructional staff assigned to work with emotionally handicapped, severely emotionally disturbed, and autistic students in order to train these employees in the use of School Board-authorized and approved physical restraint techniques and strategies. Participants in the School Board's SPM Training Program are given training manuals to review and study. According to one of these training manuals, Petitioner's Exhibit 3, the philosophy of SPM is as follows: Utilizing Safe Physical Management tech- niques in the classroom requires that non- physical intervention be used whenever possible to manage behavior. It is also expected that an on-going behavior management system is in place in the classroom to rein- force appropriate behaviors and control inappropriate ones. Physical management techniques may be used when the student is endangering himself, others, or property. They are not used to "punish" the child for misbehavior. Additionally, the philosophy of SPM includes the following major concepts. Emphasis on Safety- Techniques utilized in SPM consider the safety of the client and staff first. In a school setting, techniques that ensure physical safety of students and staff are important. Realize that Students can be Aggressive- SPM accepts the fact that some students need to be physically managed. The techniques used are based on the premise that students will at times eventually force physical inter- vention. That is, the student will do some- thing that you cannot ignore or manage using non-physical interventions. Least-Restrictive- SPM techniques move from least restrictive (providing minimal physical control) to more restrictive (providing maximum control). At all times, the least-restrictive technique that can control the student is used. Limitations- SPM techniques have limit- ations. They cannot handle every explosive situation. There are times when the best situation is not to intervene physically. There are times when SPM Techniques are neither appropriate or feasible. Assistance- SPM techniques advocate the use of assistance. Most techniques work best with two or more people and often, the best decision initially is to get help from other staff members. 3/ Professionalism- The focus of SPM techniques is to assist in the maintenance of a safe learning environment. SPM provides the district approved terminology for the documentation of physical intervention by the professional staff. This training manual also contains, among other things, the following information and instructions concerning the management of an "explosive event:" To effectively manage explosive (out-of- control) situations it is important to conceptualize them as: Angry/Aggressive- No matter how the incident begins, it is an expression of anger on the part of the student. Time-Limited/Temporary- Explosive incid- ents are angry, with the most dominant charact- eristics being a loss of physical control by the student. They are time-limited and even though they seem endless, the student will eventually calm down. Behaviorally Sequential- The behaviors exhibited by the student follow a pattern with behaviors typical each period (see Appendix B). Physical management techniques are not designed to end the explosive episode abruptly. Rather they are designed to safely manage the situation from beginning to end. As a result, the student may cont- inue to engage in aggressive acts, but managed appropriately, the risk of injury to persons or equipment is minimized. During the incident, only the amount of force necessary to prevent injury is utilized, and as the child exhibits more control a less restrictive hold may be used. Planning for explosive incidents is an important part of their prevention. Assessing the student, the environment and available staff is critical before physical intervention occurs. During the event, professional staff must be aware of both the verbal and non-verbal messages they give to students. It is important to indicate concern, expectation for change, and your interest in solving the problem. It is not the time to list sanctions, discuss potential punishments, or respond to personally abusive comments. After the incident ends, the staff involved should allow the student to withdraw and provide calm, brief verbal statements. Now is the time to communicate understanding, and to help the student identify ways this sequence of events can be prevented in the future. Another of the training manuals given to participants in the School Board's SPM Training Program, Petitioner's Exhibit 4, states the following regarding the importance of the child's safety in dealing with "explosive behavior:" Youth service workers and teachers are charged with a caretaking responsibility. As such they assume the natural role of adults to protect or safeguard the young. The Safe Physical Management Crisis Intervention Training Program has as its fundamental pur- pose the safe resolution of explosive behavior. This safety premise holds the adult responsible for insuring the safety of the youth. While the charge of guaranteeing youth safety during a crisis may appear in some way to jeopardize the safety of the intervening adult, in reality it keeps the adult from stepping into harm's way. Entering an explosive situation with a cognitive and physical focus of client safety allows for the management of the behavior and avoids the traps that attempting to eliminate the behavior present. When the purpose of the intervening staff is controlled by self preservation, their reaction to the acting out youth can easily become antagonistic. Such reactions promote escalation and a greater potential for harm. By keeping the youth safe, we provide a higher degree of safety for ourselves. . . . Intervention methods must be safe for both youth and adults; client/student safety however, is primary. At a minimum we shall do no harm. Physical intervention must be safe and, ideally, present minimal risk of accidental injury. . . . The intervention design of the safe physical management program is based upon the principle of social policy known as the "least restric- tive alternative." In many areas this principle has been reduced to the regulatory phrase, "passive restraint." In action, passive restraint refers to an intervention that utilizes the least amount of force necessary to safely control the situation. Student/youth safety is paramount. The SPM intervention philosophy requires that inter- vention personnel hold the safety of the student before their own. This premise, while sometimes raising the eyebrows of staff in training, ironically keeps the intervening staff safer than would an approach which holds staff well-being as primary. This training manual also contains, among other things, the following list of the "physical principles" of SPM: Proximity- safety is enhanced if physical space is understood as both a prompt and/or a deterrence to be used in the management of misbehavior. Location/positioning- safety is enhanced if intervention staff understand that the "face to face" position during intervention is considered the "attack/danger" zone. Evasion/deflection- safety is enhanced by evading or deflecting force rather than by opposing it. Balance- Safety is enhanced if intervention staff understand the principle of homeostasis- the nature of organisms to remain in a state of balance. Neutralization- Safety is enhanced if inter- vention staff understand the principle of managing an explosive event, rather than eliminating explosive behavior. In addition, this training manual describes and illustrates various physical positions and techniques used in SPM, including the "pivot and parry," an "evasion/deflection" technique which is described in the manual as follows: This combination of upper and lower body movement allows the staff to effectively evade and deflect any force that is directed at him/her. The pivot (usually 1/4 turn of one foot) is accomplished by leaving the weight on the foot which is on the side on which the blow or punch is delivered and moving the other foot toward the rear. The ending posture or stance should be the leading/trailing foot position previously described. This movement allows the blow or punch to go by the indivi- dual. This is the bull fighter move that allows the charging bull to pass on the side. Here, we are evading force rather than opposing it. The parry is a deflection of the force- i.e., the blow or punch. While both arms are used the primary parry is employed using the arm that is on the same side as the blow or punch. This arm is raised in an "L" configuration with the forearm vertical and upper arm on a horizontal pla[ne]. As the blow or punch is delivered the forearm is moved across to deflect the incoming force. This is not a blocking motion but, rather, a motion which simply redirects the force away from its target. The second arm is also used by making a similar "L" configuration with the hand being placed a approximately chin level. Again, the purpose is deflection. When the pivot and parry is employed correctly it places the staff in a position to move in and control the attacker, or to escape the danger by fleeing the situation. School Board staff receiving SPM training are also taught that, if during an "explosive event" they find themselves lying on the floor on their back being kicked by a student, they may raise a leg or arm to create a barrier to protect other, more sensitive, parts of their body. It is imperative that staff, in applying SPM principles, techniques, and strategies, exercise sound professional judgment. In determining how to deal with an "explosive event," which often begins abruptly, staff must consider the particular circumstances with which they are confronted. If they have had prior dealings with the student involved in the incident, they should draw upon these prior dealings and attempt to anticipate the student's actions. Respondent successfully completed a SPM training course offered by the School Board prior to March 10, 1994. 4/ Through its exceptional student education department, HMS offers special programs of instruction for various types of exceptional students, including those who are autistic. 5/ It is not uncommon for autistic students to engage in "acting out behavior" (such as screaming, yelling, punching, kicking and throwing objects). To enable its employees who work with autistic students to better understand these students and to deal with them more effectively, the School Board provides these employees with various written materials, including the Autism Orientation Manual, Petitioner's Exhibit 7, which contains the following statement regarding SPM: These procedures should conform to methods approved by the Dade County Public Schools which are described and demonstrated in struc- tured training sessions required for teachers and paraprofessionals working with autistic students. When using physical restraint, it is important to document what is being done. Written permission from parents or guardians is required. Physical restraint should not be used unless positive reinforcement methods have been utilized and the student is presenting potential harm to self and/or others. Evelyn Diaz Loper is now, and was at all times material to the instant case, an assistant principal at HMS responsible for the overall operation of the school's exceptional student education department, including the supervision of those School Board employees assigned to the department. On March 10, 1994, Respondent and Morgan Tharpe were among the employees under Loper's supervision. Tharpe was a teacher (with continuing contract status) who taught a class of autistic students at HMS. There were less than ten students in his class. M.A. was one of these students. M.A. was one month shy of his fourteenth birthday. He was quite strong for his age and had a history of engaging in "acting out behavior" in school. Respondent worked on a "one-to-one" basis with F.T., another student in Tharpe's class. During the second period on March 10, 1994, M.A., F.T. and the other students in Tharpe's class were in shop teacher Gerald Merkerson's classroom. They were supposed to be working on their woodworking projects. In addition to Tharpe's students and Merkerson, Respondent and two other School Board employees occupying paraprofessional positions (Eli Velazquez and Clara Smith), along with L.E., an HMS student in the school's regular education program, were in Merkerson's classroom. M.A. wanted to watch television in the classroom and not work on his project. Merkerson, however, refused to allow M.A. to watch television. M.A. thereupon began to engage in "acting out behavior." Among other things, he threw a metal file and wood in Merkerson's direction. (Merkerson was not hit by any of these thrown objects.) Merkerson and Velazquez took action to restrain M.A. Merkerson grabbed M.A.'s left arm, while Velazquez grabbed M.A.'s right arm. 6/ The two then attempted to lead M.A. away from the area of the classroom where M.A. was positioned. M.A. resisted their efforts. Unlike Respondent, Velazquez had not yet been trained in SPM. Moreover, he was not supposed to be in Merkerson's classroom. Accordingly, Velazquez let go of M.A.'s arm and Respondent attempted to take over for him. M.A., however, bit Respondent on the arm. The bite broke Respondent's skin. Velazquez came to Respondent's assistance and helped Respondent remove himself from the fray. After tending to his wound, Respondent rejoined Velazquez and assisted him in attempting to restrain M.A. Merkerson was no longer holding on to M.A. He had let go after a cut on his hand had reopened and started to bleed. M.A. was on his knees on the floor being restrained by Respondent and Velazquez when Tharpe walked into classroom. Tharpe instructed Respondent and Velazquez to let go of M.A. Respondent and Velazquez followed Tharpe's instructions, notwithstanding that M.A. had not yet calmed down and was still engaging in "acting out behavior." Tharpe walked toward M.A. When Tharpe was approximately two feet away from M.A., M.A. kicked Tharpe in the area of his groin. Tharpe screamed out in pain. M.A.'s actions prompted Velazquez to again attempt to restrain M.A. He grabbed both of M.A.'s arms, but was not able to hold on securely because both he and M.A. were dripping with sweat. M.A. struggled with Velazquez and tried to scratch and bite him. As Velazquez and M.A. were on their knees, face-to-face face, struggling with one another, Tharpe approached M.A. from behind and struck M.A. in the area of the upper back with a relatively thin, rectangular-shaped piece of wood approximately one foot to two meters long and two to three inches wide. 7/ Velazquez released M.A. after Tharpe delivered this blow. M.A. then started crawling towards Tharpe and tried to scratch and bite him. In an effort to ward off M.A.'s attack, Tharpe, who at 235 pounds was substantially larger than M.A., hit M.A. on the back at least two more times with the piece of wood he was holding in his hand. These additional blows were not delivered with full force. The three or more blows that Tharpe delivered produced bruises on M.A.'s back. The marks remained visible for approximately seven to ten days. In delivering these blows, Tharpe used more force than was reasonably necessary to effectively and safely deal with M.A.'s "acting out behavior" and he acted in a manner that was inconsistent with the SPM training he had received. Respondent had witnessed Tharpe's actions and recognized that Tharpe had acted improperly. Nonetheless, contrary to the requirements of Guideline No. 4 of the School Board's Procedures (of which Respondent was aware), Respondent did not report the incident to Loper (who was at school that day) or any other School Board administrator within a reasonable period of time following the incident. Neither did any of the other HMS staff members who had been in the classroom at the time of the incident advise Loper, on March 10, 1994, of what had happened. Although Tharpe's actions were inappropriate, they were effective. After Tharpe delivered his final blow, M.A. stopped crawling toward him. M.A. continued to scream, however, and, after a while, he started to crawl toward Respondent. In an effort to prevent M.A. from coming any closer, Respondent swung his foot in M.A.'s direction and made contact with M.A. 8/ Respondent kicked M.A. approximately five or six times, but M.A. continued coming at him. When Respondent started to become visibly upset with M.A., Velazquez intervened by positioning himself between Respondent and M.A. and pushing Respondent out of the way. Respondent did not kick M.A. as hard as he could have. 9/ Nonetheless, in kicking M.A., he used more force than was reasonably necessary to effectively and safely deal with M.A.'s "acting out behavior" and he acted in a physically aggressive manner that was inconsistent with the SPM training he had received. 10/ M.A. eventually calmed down and returned to Tharpe's classroom. Tharpe telephoned M.A.'s mother, L.A.H., that day (March 10, 1994), but he did not mention to her during their conversation anything about what had happened in Merkerson's classroom during second period. He simply told L.A.H. that she needed to supply him with more medication for M.A. Following the conclusion of the school day, M.A. went home by school bus. L.A.H. met him at the bus stop and greeted him with a hug. She was unaware, at the time, that anything unusual or out of the ordinary had occurred in school that day. M.A. pulled away from his mother when she hugged him and said, "Mom, boo-boo." 11/ L.A.H. then pulled up M.A.'s shirt and saw four bruises about "three fingers wide" on M.A.'s back that had not been there that morning when she had helped M.A. get dressed for school. M.A. also had a scratch on his forehead that L.A.H. had never seen before and a bump on his head. The following morning (March 11, 1994), L.A.H., accompanied by M.A. and M.A.'s father (L.A.H.'s former husband), met with Loper and William Jones, the principal of HMS. L.A.H. showed Loper and Jones the bruises on M.A.'s back and the scratch on his forehead and expressed her belief that M.A. had sustained these injuries at school the previous day. Loper thereupon contacted Merkerson and asked him if anything had occurred in his classroom the day before that may have resulted in injury to M.A. In view of Merkerson's response to her inquiry, Loper asked him to fill out a Student Case Management Referral Form (SCM Form). A SCM Form must be filled out whenever a student has been physically restrained. Loper had not previously received a completed SCM Form indicating that physical force had been used against M.A. in Merkerson's classroom the day before. On the SCM Form that he filled out at Loper's request, Merkerson stated the following: [M.A.] became irate and upset because he was not allowed to watch Barney on television. He became combatant and began to throw stools and wooden objects at the teachers and paraprofessionals. Upon being subdued to reduce the danger that he posed to myself and others he bit Juan Alejo on his right forearm, kicked Mr. Tharpe in the groin area and hit his right arm with his balsa wood project. The student poses a serious safety hazard in the technology education shop class. [M.A.] was also self destructive and scratched himself on the left temple. Although Merkerson did not mention in his written report that, in subduing M.A., Tharpe had hit M.A. with a piece of wood and Respondent had kicked M.A., the School Board ultimately found out about Tharpe's and Respondent's unseemly and inappropriate behavior during the incident. On November 2, 1994, a conference for the record was held concerning Respondent's involvement in the incident. At the conference, Respondent admitted that he had kicked M.A. during the incident. By letter dated November 3, 1994, the principal of HMS recommended to Frank de Varona, the Regional Superintendent (for Region I Operations) "the termination of [Respondent] from all employment in Dade County Public Schools." By letter dated January 13, 1995, the School Board's Superintendent of Schools notified Respondent that he was recommending that the School Board suspend Respondent and initiate a dismissal proceeding against him. The School Board took such recommended action at its January 25, 1995, meeting. Respondent thereafter requested a formal hearing on the matter.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered sustaining Respondent's suspension and dismissing him as an employee of the School Board of Dade County, Florida. DONE and ENTERED in Tallahassee, Leon County, Florida, this 25th day of April, 1996. STUART M. LERNER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1996.
The Issue The issue for consideration in this case is whether Respondent's employment with the Pinellas County School Board as a non-instructional employee should be terminated because of the matters alleged in the Superintendent's letter dated May 2, 1995.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Pinellas County School Board, operated the system of public schools in Pinellas County, and employed both instructional and non-instructional personnel in support of its educational mission. Respondent was employed as a plant operator at P-Tec, Clearwater, a vocational-technical school operated by the Petitioner. On or about 1:30 AM on April 29, 1995, Pinellas County Sheriff's Deputy Kenneth E. Kanosky, while on duty on West Bay Drive in Largo, observed a truck weaving back and forth in its lane of traffic. At one point, the right rear wheel of the truck passed over the solid line near the curb, and shortly thereafter, the vehicle veered toward the left hand lane of the road. When the vehicle turned off that highway onto another street, Officer Kanosky stopped it and asked the driver for his license and registration. The driver was the Respondent, Robert D. Potter. When Deputy Kanosky spoke with the Respondent at that time, he noticed that Respondent was somewhat slow in his movements and his speech was slightly slurred. Kanosky also detected an odor of alcohol coming from Respondent, and because of that, he asked Respondent if he had consumed any alcohol. Respondent replied he had drunk two beers. Kanosky then asked the Respondent to dismount the vehicle and when Respondent did so, noticed that he was unsteady on his feet and weaving somewhat back and forth. At this point, Kanosky called for backup which arrived shortly thereafter. Upon the arrival of the backup, Kanosky did a field sobriety test of the Respondent. He administered the walk and turn test, which Respondent failed, and also gave him a one-legged stand test on which Respondent scored a 2, which is inconclusive. Based on the tests, Kanosky arrested the Respondent for DUI. Incident to this arrest, and as a routine part thereof, Kanosky searched Respondent, and in doing so found a metal container in Respondent's pocket. Kanosky smelled the outside of the container and detected an odor of what, based on his experience, was marijuana. When the container was opened, it was found to contain a partially burned cigarette. Kanosky also found a plastic bag of vegetable material in Respondent's pocket which, based on the deputy's 15 years of experience in law enforcement, he recognized as marijuana. Both substance samples were subsequently transmitted to the Pinellas County Forensic Laboratory where they were tested and determined to be marijuana. Immediately after the vegetable substance was found, still at the scene of the arrest, Respondent commented that he was "unable to hide it" from the officers. As a result of the search and the discovery of suspected marijuana, Respondent's vehicle was impounded, and he was transported to the Sheriff's station for a breath test. After Respondent was advised of his rights to decline the test, at approximately 3:09 AM, more than 1 1/2 hours after being stopped by Deputy Kanosky, Respondent was administered a breath test. The test, which was run on an Intoxilizer 5000, an automatic breath analyzer, consistent with established procedures and protocols, indicated, as to the first sample taken, a blood alcohol level of .107. As to the second sample, taken approximately three minutes later, the reading was .111. Respondent does not believe he was driving under the influence of alcohol or was driving while impaired on the evening of April 26, 1995. He admits he had had two beers earlier that evening between 11:30 PM and 12:10 AM, and those two beers were the only alcohol he consumed all day. At the time he was stopped he was on his way to pick up from a friend his fishing rod which he planned to use the following day. He claims the marijuana found on his person by the deputies was not his. Respondent stated that earlier that day he had loaned his truck to an acquaintance by the name of Beach, who was to use it to move property belonging to Beach and his roommate from one apartment to another. The truck was to have been returned earlier in the evening but was not, and when it was returned, Respondent did not look in it or examine it carefully. He merely got in the truck and set off to retrieve his fishing rod. The first indication Respondent had that any foreign substance was in the vehicle, he claims, was when he felt a plastic bag blowing around his feet on the truck floor. He picked it up and looked at it and assumed it was something which did not belong in his truck. However, he did not dispose of it then but stuck it in his pocket. Shortly thereafter, he asserts, as he was stopped at a red light, he discovered the metal can stuck down between the seat and the seat back. While the light was red, he retrieved it, opened it and saw its contents, and when the light turned green, immediately closed it and stuck it, as well, in his pocket. No sooner had he passed through the intersection, he indicates, than he was stopped by Deputy Kanosky for allegedly driving under the influence of alcohol. Respondent explains his failure to immediately dispose of the contraband when he discovered it in his truck by claiming he wanted to show it to Beach and discuss it with him. This is not justification. Respondent believes he did well both on the field sobriety test at the scene of the stop and on the breath analysis at the Sheriff's station. He does not believe he was driving while impaired and notwithstanding the allegation of the deputy to the contrary, claims he indicated he was not drunk and denies he ever said he was. The credible evidence of the deputies and the analysis results indicate otherwise. Respondent has no criminal record. He has never been arrested nor has he been in jail before. He denies making any incriminating statement to the deputies. About a week after the incident, he spoke with Beach, who had borrowed the truck, and at that time, Beach indicated the marijuana was "probably" his or that of the friend who was also moving. Beach, when advised of the situation in which Respondent found himself, indicated he would speak with Respondent's boss and get it straightened out. He did not do so, however, and the letter of suspension with intent to dismiss was issued. The Board has had in effect for many years some version of a policy which permits the discipline of support personnel for various reasons. The edition of the policy in effect at the time of Respondent's misconduct provides for a system of progressive discipline unless the misconduct of the employee is serious enough to impair the employee's effectiveness or possibly bring the Board's service into disrepute, or unless the employee is publicly under the influence of alcohol or drugs. Respondent is described by Mr. Bidding, the assistant director at P- Tec, as an individual whose work is both exemplary and outstanding. Respondent has frequent contact with students and supervises those students who work on campus in a work study program with the plant operation. Most of these are youths between 16 and 18 years old, but some are as young as 14. Mr. Bidding is familiar with the charges against the Respondent and, assuming they are true, recognizing the continued quality of Respondent's work, he would still not want the Respondent employed and in contact with students due to the concerns of parents and community about the quality and behavior of Board employees. Mr. Bidding believes that any charge dealing with substance abuse can have an effect on students, their parents, and other employees, and, indirectly, with businesses through the Business Advisory Committee. While admitting he has not been approached by parents or anyone else about the charges against the Respondent or any other person accused of driving under the influence, it is his position that anyone guilty of that offense should not be working in the school system. As to employees in general, it is a constant subject of concern voiced to him in the community. Both alcohol and the possession of marijuana or drugs, or any type of substance are, to Mr. Bidding, absolute disqualifiers for employment in the system. Respondent has no prior record or evidence of either alcohol or substance abuse, and there have been no complaints about him even after his involvement under discussion. Before Respondent was suspended, Mr. Bidding saw him on a regular basis and they had contact a minimum of 2 to 3 times a week. He has reviewed the Respondent in the past, rated him highly and recommended him for promotion and advancement. He has been very satisfied with the Respondent's work. However, if Respondent is guilty of DUI or the possession of marijuana, in Mr. Bidding's opinion, he cannot effectively serve as a Board employee. Dr. Martha L. O'Howell, administrator in the Board's Office of Professional Standards, investigated the Respondent's actions and determined the allegations against him were supported by the facts. She recommended dismissal because Respondent's actions were inconsistent with and inappropriate for employees of the Board. She was of the opinion it would negatively effect his performance. He has contact with students and employees are role models for the students. Also, parents and community members do not accept the type of conduct ascribed to Respondent in Board employees. Based on these considerations, she drafted the May 2, 1995 letter for Dr. Hinesley signature which suspended the Respondent and indicated an intent to recommend his dismissal. Dr. O'Howell admits that if the only allegation against the Respondent were the DUI, the likelihood is she would not consider dismissal appropriate. However, in her opinion, possession of drugs is grounds for dismissal without grounds for going through a progressive series of disciplinary actions, and this misconduct falls under Section F, Misconduct, of the Board policy on the discipline of non-instructional personnel. It is considered misconduct, and since it involved drugs, the former, unwritten policy called for dismissal with no consideration of mitigation or aggravation. This is consistent with the new policy letter which is now extant. Several of the Respondent's coworkers and supervisors testified in his behalf. Mr. Clark, who is the coordinator of the apprenticeship program at P- Tec, who has worked with the Respondent many times over the past four or five years, and who is also a fishing and camping friend of his, found him to be an exemplary employee who always went beyond the call of duty. Mr. Clark indicates Respondent has a reputation within the school community as a hard worker with an above-average character. Respondent has worked with work education students and has been a strong role model for them. Mr. Clark is aware of the charges against the Respondent but has never known Respondent to use marijuana or any controlled substance. In fact, he has heard the Respondent speak out against drugs and alcohol abuse over the last several years. Assuming the allegations against the Respondent are true, Mr. Clark believes he should be given a second chance and an opportunity to overcome this. The Board should help its employees and not "slam dunk" them. On the other hand, employees should demonstrate exemplary conduct and Respondent's misconduct, if true, is not consistent with that of a good role model. Mr. McGaughey, a plant operator at P-Tec, and an indoor janitor, has worked together with the Respondent for almost 10 years. He is aware of Respondent's reputation in the school community for not ever using drugs, and who supervises those young students who get in trouble in school. Mr. McGaughey is aware of the allegations against the Respondent but he has never known Respondent to use marijuana, either at work or outside of work, over the 10 years they have been associated. Admittedly Respondent drinks a beer or two from time to time, off work. If the allegations involving marijuana are true, nonetheless, Mr. McGaughey does not believe this would interfere with Respondent's ability to do his job. Mr. Chancellor, a campus monitor for approximately 8 years, has known the Respondent from work at P-Tec and has associated with him every working day and on field trips. He is familiar with the Respondent's reputation for not using drugs, and as being a deterrent force to the use of drugs within the school community. Respondent has helped him in his job as a campus monitor, and he has never known Respondent to use drugs. Mr. Chancellor is not familiar with the allegations against the Respondent. When advised by counsel of their substance, Chancellor indicated that if they were true, he would still not feel that Respondent's effectiveness as a Board employee would be impaired. Respondent is a hard worker and always did his job and helped others. Mr. Chancellor would not lose respect for the Respondent if it were shown the allegations against him were true and he and would not object to his own child attending school where Respondent worked even in that case. Respondent's immediate supervisor, Mr. Stucker, who has been employed at P-Tec for 12 years, became aware of the allegations against Respondent when the Respondent informed him of his arrest the day following it. He has seen and observed Respondent on a daily basis over the years they have worked together and has evaluated his performance yearly. In general, he has rated the Respondent as one of the best employees at the school. Not only did Respondent accomplish his own work, but he also did that of other employees as well, and Stucker has recommended Respondent for advancement. At no time, over the period he has known the Respondent, has Respondent ever appeared to be impaired by alcohol or drugs. Even if the allegations against Respondent are true, that one incident would not impair his effectiveness in the future. Respondent is a hard worker, and people miss him and ask for him to come back. Respondent's older sister, Ms. Indish, sees him on a regular basis, and before she moved to Ocala approximately 14 months ago, was his neighbor. She would likely know it if Respondent used marijuana, and she has never known him to use it or any other drug during the time he worked for the Board. In fact, he has taken the position that he did not want people around him who used drugs in their life. He is a social drinker who rarely overindulges in alcoholic drink.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Robert Potter be suspended without pay from May 2, 1995 until such time as the School Board of Pinellas County shall vote to return him to duty at its next meeting for the consideration of this Recommendation but that he not be dismissed from employment with the Board. RECOMMENDED this 30th day of November, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1995. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. - 10. Accepted and incorporated herein. 11. - 14. Accepted and incorporated herein. 15. Accepted. 16. - 18. Accepted and incorporated herein. 19. - 26. Accepted and incorporated herein. 27. Accepted and incorporated herein. 28. & 29. Accepted. FOR THE RESPONDENT: 1. - 4. Accepted and incorporated herein. 5. Accepted and incorporated herein except for last sentence. Though it is accepted that Respondent had no knowledge the marijuana was in his vehicle until he found it there while driving to pick up his fishing rod, he failed to dispose of it when discovered and was aware it was in his possession from that time until it was discovered by the Deputy on the search incident to the arrest. 6. Accepted and incorporated herein. 7. First two sentences accepted and incorporated herein. Balance rejected as contra to the weight of the evidence. 8. Accepted and incorporated herein. 9. - 12. Accepted and incorporated herein. 13. & 14. Accepted and incorporated herein. 15. Accepted and to use of marijuana. Rejected as to possession of marijuana. 16. - 18. Rejected as contra to the weight of the evidence. COPIES FURNISHED: Keith B. Martin, Esquire Pinellas County School Board Post Office Box 2942 Largo, Florida 34649-2942 Mark E. Schleben, Esquire 1423 South Ft. Harrison Avenue Clearwater, Florida 34619 Dr. J. Howard Hinesley Superintendent Pinellas County Schools Post Office Box 2942 Largo, Florida 24649-2942
The Issue The issue for determination is whether Respondent had just cause to suspend Petitioner for 30 workdays, without pay.
Findings Of Fact No dispute exists that the School Board is a constitutional entity charged with the duty to operate, control and supervise the public schools within the school district of Miami-Dade County, Florida. No dispute exists that, at all times material hereto, Mr. Boundy was employed full-time with the School Board as a teacher and held a professional service contract. Mr. Boundy had been a teacher with the School Board for 15 years. In his professional career, Mr. Boundy had been a teacher, then had practiced law in the State of Florida for 15 years, and had become a teacher again. No dispute exists that, at all times material hereto, Mr. Boundy was assigned to Nautilus Middle School, hereinafter Nautilus, in the Miami-Dade County’s school district. He was assigned to teach science. On September 30, 2005, Mr. Boundy was teaching his science class at Nautilus. He was having problems with one particular student, D. M., who was approximately 14 years of age.1 D. M. had just returned to class from being on indoor suspension, for cutting class. Earlier that day, after having returned from indoor suspension, D. M. had been involved in a physical altercation, a “minor”2 fight, and Mr. Boundy counseled him. At lunch time, another teacher broke-up a fight between D. M. and another student; Mr. Boundy counseled him again. Mr. Boundy determined that the first fight did “not” warrant a “write-up” and that the second fight perhaps “may” have warranted a write-up but that he decided not to do so.3 After lunch, while in Mr. Boundy’s class, D. M. had another fight with a student, which was D. M.’s third fight that day. Mr. Boundy has a policy in his class that, “after three strikes, you’re out,”4 therefore, instead of counseling D. M. again, Mr. Boundy determined that a “write-up” was warranted and that D. M. had to leave his class. Mr. Boundy told D. M. to leave the class and go to the office. Before leaving the class, D. M. began spraying perfume and then walked out into the hallway but did not go the office. Mr. Boundy observed D. M. still outside in the hallway. When Mr. Boundy walked out of his class into the hallway, he observed D. M spraying perfume in the hallway. Mr. Boundy asked D. M. to give the perfume to him (Mr. Boundy). D. M. raised his hand and brought it down as if to strike Mr. Boundy at which time Mr. Boundy grabbed D. M.’s hand and pulled it behind his (D. M.’s) back and told D. M. that he (D. M.) needed to go to the office. The hallway outside of Mr. Boundy’s classroom is equipped with a surveillance camera, which recorded the interaction between Mr. Boundy and D. M. after the contact described above. The surveillance camera does not record as a regular video camera but records as a series of snapshots or still pictures approximately every second, with gaps in between the snapshots; therefore, the surveillance camera fails to reveal completely what happens within a segment of time.5 As a result of the gaps in between snapshots of the surveillance camera, the testimony of witnesses is crucial in determining what happened. While in the hallway, the surveillance camera shows Mr. Boundy’s back to it and D. M. directly in front of him in such close proximity as if their bodies were touching. Mr. Boundy testified that he took D. M. by the arms and was directing him toward the doors leading to the office. Mr. Boundy’s testimony is found to be credible. Subsequently, while also in the hallway, the surveillance camera, in several snapshots, shows Mr. Boundy and D. M. separated, with D. M. facing Mr. Boundy, who testified that D. M. wrestled away from him. The surveillance camera also shows, in one snapshot, Mr. Boundy’s left hand on D. M.’s right shoulder and, in another snapshot, D. M. moving back toward the classroom. Mr. Boundy testified that D. M. was going back to the classroom without his (Mr. Boundy’s) permission. D. M. admitted that he was returning to the classroom without Mr. Boundy’s permission. Mr. Boundy’s testimony is found credible. Further snapshots by the surveillance camera show Mr. Boundy grabbing D. M. by the arms and shoulder area, when D. M. gets close to the classroom, and pushing D. M. down the hallway; and shows some students observing the conduct in the hallway. Also, the snapshots by the surveillance camera show Mr. Boundy and D. M. exiting the exit doors at the stairwell, with Mr. Boundy continuing to hold D. M.’s arms. After they go through the exit doors, the snapshots by the surveillance camera show Mr. Boundy releasing D. M. and watching D. M. go down the stairs. Mr. Boundy testified that he told D. M. to go to the office. D. M. does not deny that Mr. Boundy told him to go to the office at that point. D. M. went to the main office. The school counselor, Amy Magney, talked with D. M., who was loud and appeared to be agitated. Ms. Magney observed marks on D. M.’s arms and the back of his neck, which she described as “very red.” D. M. informed Ms. Magney that Mr. Boundy’s forceful touching had caused the red marks. Ms. Magney took D. M. to the assistant principal, Ms. Gonsky, who observed marks on D. M.’s arms, which were red, and marks on D. M.’s the neck, shoulder area, which Ms. Gonsky described as a “little red.” Mr. Boundy admits, and at no time did he deny, that he grabbed D. M. by the arms and shoulder area. For example, at the Conference for the Record (CFR) held on November 15, 2005, Mr. Boundy admitted that he held D. M.’s arms by the back directing him towards the stairs. A detective of the School Board’s police department reviewed the snapshots by the surveillance camera. From the detective’s observation, he determined that Mr. Boundy did not take any malicious action against D. M.; that D. M. was resisting Mr. Boundy; that, at one point, D. M. made an aggressive action against Mr. Boundy; and that Mr. Boundy was “directing, escorting” D. M. through the exit doors. D. M. testified that Mr. Boundy also grabbed him around the neck. Mr. Boundy denies that he grabbed or touched D. M.’s neck but admits that he grabbed D. M. at the shoulder area. V. V., a student in Mr. Boundy’s class, testified that Mr. Boundy grabbed D. M. by the neck, pushing D. M. out of the classroom. Also, the Conference for the Record (CFR) held on November 15, 2005, indicates that the same student stated that, while Mr. Boundy and D. M. were in the hallway, D. M. swung at Mr. Boundy and struck him in the chest. Mr. Boundy denies that he was struck by D. M. and D. M. denies that he struck Mr. Boundy. V. V.’s testimony is not found to be credible. The snapshots by the surveillance camera do not show Mr. Boundy grabbing or touching D. M.’s neck. Ms. Magney was the first person in the school's office to observe the marks, and when she saw the marks on the back of D. M.’s “neck,” the marks were “very red”; however, when Ms. Gonsky, the second person in the school's office to observe the marks, the marks around the “neck, shoulder area” were a “little red.” Further, D. M. had been in two physical altercations before the incident with Mr. Boundy and the last altercation had occurred at lunch time. Ms. Gonsky’s account of the location of the red marks is not inconsistent with Mr. Boundy’s testimony, regarding the shoulder area. Additionally, when Ms. Gonsky observed the marks at the neck, shoulder area, they were a little red, not red or very red. The undersigned finds Mr. Boundy’s and Ms. Gonsky’s testimony and account more credible regarding the marks being at the shoulder area, not the neck. Furthermore, the undersigned finds that Mr. Boundy grabbed D. M. at the shoulder area and that the marks at the shoulder area were caused by Mr. Boundy and were a little red. No dispute exists that D. M. was being disruptive. Mr. Boundy had counseled D. M. on two occasions that same day for fighting. D. M. had committed a third strike by fighting again in Mr. Boundy's class, and according to Mr. Boundy's classroom policy of which the students were aware, the third strike meant that the student was leaving the classroom and going to the school's office. Mr. Boundy was going to write-up D. M. for the incident but did not do so. Before he could write-up D. M., Mr. Boundy was summoned to the school's office after the administrators in the office observed the marks and heard D. M.'s version of the incident. At the beginning of each school year, the principal of Nautilus, Caridad Figueredo, has an opening meeting, consisting of two days. At the opening meeting, among other things, Ms. Figueredo notifies the Nautilus' faculty that they must comply with the rules of the School Board and the Code of Ethics, and some of the rules are reviewed with the faculty. Further, at the opening meeting, Nautilus' faculty is provided a copy of the Faculty Handbook. Nautilus' faculty signs an acknowledgement that they understand that they are responsible for becoming knowledgeable about the rules and adhering to them. Mr. Boundy signed an acknowledgement and received a copy of the Faculty Handbook. Regarding physical contact, Ms. Figueredo indicates at the opening meeting that the School Board prohibits using physical contact to maintain discipline or to affect a student’s behavior. As a result, at the opening meeting, she informs Nautilus' faculty, and stresses to them, that they should not use physical force or, generally, to come in physical contact with the students. However, as to coming into physical contact with students, an exception is recognized and allowed in the touching of a student by a teacher if the teacher has a rapport with the student and the student has no objection to or approves of the teacher just tapping him or her. That exception is not applicable in the instant case. Nautilus had a 2005-2006 Faculty and Staff Handbook, hereinafter Handbook. The Handbook contained a Progressive Discipline Plan, hereinafter Plan, for teachers to use when they encounter disruptive students. The Plan contained several steps of action, which provided in pertinent part: Step I: Teacher The teacher may handle discipline in the following ways (list not inclusive): Move close to the student – use verbal and/or non-verbal techniques to correct behavior problems * * * Speak with the student on a one-to-one basis * * * Contact parent (verbal and/or written) Hold parent or student/parent conference PLEASE NOTE: Parent contact is REQUIRED before a referral can be made to the administration. Only disciplinary problems involving infractions of the Code of Student Conduct Group III or higher (fighting . . .) may be directly referred to the administration using a case management form. * * * Step IV: Referring Students For Administrative Action Students should be sent directly to the appropriate administrator only when critical incidents occur such as fighting . . . Please use your emergency button to request for[sic] assistance. If a student becomes disruptive and you request removal the administrator will take the appropriate disciplinary action deemed necessary according to the Code of Student Conduct and provide teachers immediate feedback. (emphasis in original) The Handbook also contained a section entitled “Things To Remember When Dealing With A Student,” which provided in pertinent part: 4. DON’T: Snatch things away from students. Become confrontational. Physically block an exit. Argue or get on the student’s level. Shout or put them down. Disrespect them. * * * 6. Use common sense regarding touching students: Be aware that affectionate gestures may be misconstrued. Avoid physical contact of any kind in situations involving you and student (i.e. where there are no witnesses). Additionally, the Handbook contained a section entitled “How to Avoid Legal Complications as an Educator,” which provided in pertinent part: Respect the space of others. Do not place your hands on students. * * * Know the laws, School Board policies and school rules, and follow them. * * * Corporal punishment is prohibited in Miami- Dade County Public Schools. Treat each student with respect. Establish a policy regarding discipline. Distribute the policy to students and parents at the beginning of the year or when the students begin your class. The School Board has established “Procedures for Promoting and Maintaining a Safe Learning Environment,” which provides in pertinent part: Purpose of the Procedures for Promoting and Maintaining a Safe Learning Environment This document, Procedures for Promoting and Maintaining a Safe Learning Environment, is incorporated by reference and is a part of School Board Rule 6Gx13-5D-1.08, Maintenance of Appropriate Student Behavior. It has been prepared to assist school administrators in promoting and maintaining a safe learning environment in the public schools of Miami-Dade County, Florida. These procedures and directions are set forth to guide and promote orderly and productive participation of students in school life and support the achievement of Florida's education goal for school safety and environment, Section 229.591(3)(e), F.S. Student actions and behaviors that can be defined as disruptive and/or threatening must be dealt with according to Florida Statutes, and Florida Board of Education and Miami-Dade County School Board Rules. This manual contains information necessary to assist school administrators in making the most appropriate decisions and taking warranted action in promoting maintaining a safe learning environment. * * * Administrators, counselors, and appropriate staff are expected to become familiar with this document, to review it periodically, and to utilize it according to its inherent purpose -- promoting and maintaining a safe learning environment in the public schools of Miami-Dade County, Florida. As the administration and staff at each school site address the requirements of current Miami- Dade County Public Schools (M-DCPS) guidelines, they should also review modifications of requirements related to school discipline and school safety as established by the Florida Legislature. * * * GUIDELINE #39: REMOVAL OF STUDENT FROM CLASS AND POSSIBLE EXCLUSION OF THE STUDENT BY THE TEACHER CURRENT LAW AND/OR PRACTICE: Florida Statutes and Miami-Dade County School Board Rules allow for teachers to remove a disruptive student from class if the behavior of the student has an adverse effect on the teacher's ability to communicate effectively with students or the ability of the students to learn. Section 232.271, F.S., provides for the right of the teacher to refuse to accept a student back to class who has been removed for disruptive behavior which adversely affects the teacher's ability to communicate effectively with the students or with the ability of the students to learn. Provisions for Exceptional Students: The Placement Review Committee shall refer to the IEP team all exclusion requests for students from exceptional education classes. Temporary Removal from Class 1. The teacher shall have the authority to remove a seriously disruptive student from the classroom. In such cases, the principal or designee shall be notified immediately and the teacher shall be entitled to receive, prior to the student's return to class, a report describing corrective action(s) taken. Guidelines for implementing this provision shall be developed by each Educational Excellence School Advisory Council (EESAC). Code of Student Conduct Infractions The principal or designee will follow the Code of Student Conduct on all disciplinary matters. Only those disciplinary problems which disrupt a teacher's instruction, when the teacher requests the student's permanent removal from class, shall be referred to the Placement Review Committee, if the request is not resolved by the principal. A CFR was held on November 15, 2005. A Summary of the CFR was prepared and provides in pertinent part: [Mr. Boundy was asked]: 'Did you touch the student?' [Mr. Boundy] replied: 'Yes and it will never happen again.' * * * The following directives are herein delineated which were issued to you [Mr. Boundy] during the conference: Adhere to all M-DCPS [Miami-Dade County Public Schools] rules and regulations at all times, specifically School Board Rules [sic] 6Gx13-4A-1.21, Responsibilities and Duties. Adhere to The Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida. Cease and desist from utilizing physical means to effect the behavior of students. * * * During the conference, you [Mr. Boundy] were directed to comply with and were provided copies of the following School Board Rules: 6Gx13-4A-1.21, Responsibilities and Duties 6Gx13-4A-1.213, The Code of Ethics You [Mr. Boundy] were advised of the high esteem in which teachers are held and of the District's [School Board's] concern for any behavior, which adversely affects this level of professionalism. You [Mr. Boundy] were reminded of the prime directive to maintain a safe learning environment for all students and that your actions violated this directive. . . . Further, attached to the Summary of the CFR was "Guideline #9: Corporal Punishment, Current Law and/or Practice, from the Procedures for Promoting and Maintaining a Safe Learning Environment," which provides in pertinent part: GUIDELINE #9: CORPORAL PUNISHMENT CURRENT LAW AND/OR PRACTICE: CORPORAL PUNISHMENT IS PROHIBITED IN MIAMI-DADE COUNTY PUBLIC SCHOOLS. . . . Corporal punishment is physical force or physical contact applied to the body as punishment. Section 228.041(27), F.S., defines corporal punishment as: . . . the moderate use of physical force or physical contact by a teacher or principal as may be necessary to maintain discipline or to enforce school rule. However, the term 'corporal punishment' does not include the use of such reasonable force by a teacher or principal as may be necessary for self-protection or to protect other students from disruptive students. The use of physical restraint techniques in accordance with the Miami-Dade County School Board Rule 6Gx13-6A-1.331, Procedures for Providing Special Education for Exceptional Students and Article VIII of the Contract Between Miami-Dade County Public Schools and the United Teachers of Dade is not corporal punishment. Prior to Mr. Boundy’s going into the hallway, to confront D. M., alternative avenues were available to Mr. Boundy for sending D. M. to the school's office without confronting him in the hallway. Nautilus has a protocol that, whenever a teacher is unable to control a disruptive student by using classroom management techniques, the teacher can press a security button, located in the classroom, and a security monitor or an administrator will immediately come to the classroom. The security monitor or administrator will assess the situation and remove the disruptive student. Mr. Boundy failed to use this established protocol. The undersigned does not find credible the testimony given on alternative methods of dealing with D. M., as a disruptive student, in terms of in-school suspension, student mediation, conflict resolution, parent involvement, alternative education, suspension, and expulsion as being applicable to the instant case. These alternatives are available after the student is removed from the classroom to the school's office; they fail to address the immediate removal of the physical presence of a disruptive student from the classroom. The exception to corporal punishment found at Guideline Nos. 9 and 39, regarding the use of physical restraint techniques for situations involving Exceptional Student Education (ESE), is not applicable to the instant case. Mr. Boundy's class was not an ESE class, and D. M. was not an ESE student. Also, the exception to corporal punishment found at Guideline No. 9, regarding situations to protect other students, is not applicable to the instant case. None of the other students in Mr. Boundy's class were in harm's way or needed protection in the hallway outside Mr. Boundy's classroom. However, the exception to corporal punishment in a situation for self-protection, i.e., the protection of Mr. Boundy from D. M., was applicable in the instant case. When D. M. raised his hand and brought it down as if to strike Mr. Boundy, Mr. Boundy grabbed D. M.'s arms and put his (D. M.'s) arms behind his back; at that instant, Mr. Boundy was in need of self-protection and he (Mr. Boundy) acted appropriately. But, the evidence fails to demonstrate that, after Mr. Boundy prevented D. M. from striking him, Mr. Boundy continued to be in need of self-protection. Self-protection failed to continue to exist and failed to exist during the time that Mr. Boundy was directing/escorting D. M. down the hall to the exit doors. The Administrative Director of the School Board's Office of Professional Standards, Gretchen Williams, testified that Mr. Boundy's use of physical contact in the handling of D. M. in the hallway and that the presence of red marks on D. M., exemplified excessive force, which rendered Mr. Boundy's action as a violent act. Further, she testified that Mr. Boundy's conduct was corporal punishment; that his violent act constituted unseemly conduct; and that his violent act was contrary to the School Board's prime directive to maintain a safe learning environment, which constituted unseemly conduct and was conduct unbecoming a School Board employee. Ms. Williams' testimony is found to be credible. Also, the School Board's Administrative Director, Region II, DanySu Pritchett testified that Mr. Boundy's physical force constituted violence in the workplace; and that he failed to maintain the respect and confidence of the student and the value of worth and dignity of the student through the use of physical force. Further, she testified that the failure to use an alternative method of removal by using the emergency call button was poor judgment and constituted conduct unbecoming a School Board employee. Ms. Pritchett's testimony is found to be credible. Additionally, Ms. Figueredo, testified that Mr. Boundy subjected D. M. to unnecessary embarrassment by using physical force in the hallway in front of D. M.'s classmates while Mr. Boundy was directing/escorting D. M. down the hall. Further, Ms. Figueredo testified that, during the hallway incident, Mr. Boundy engaged in corporal punishment, conduct unbecoming an employee of the School Board, unseemly conduct, and poor judgment, and was not a good role model to the students and staff. Ms. Figueredo's testimony is found to be credible. Also, Ms. Figueredo testified that Mr. Boundy's use of poor judgment and failure to use established protocol and to exemplify a good role model to the students and the staff caused Mr. Boundy to lose his effectiveness. Ms. Figueredo's testimony is found to be credible. Pending the investigation of the incident by the School Board, Mr. Boundy was removed from the classroom. He was placed on alternative assignment, i.e., at his home. Due to Mr. Boundy's failure to follow established protocol at Nautilus for the removal of D. M. from the classroom, to the physical force used by Mr. Boundy, to the marks that were a little red and were caused by the physical force, and to the seriousness of the incident, by memorandum dated November 21, 2005, Ms. Figueredo recommended a 30-day suspension for violation of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties. Ms. Pritchett agreed with the recommendation. By memorandum dated December 1, 2005, the School Board's Region Center II concurred in the recommendation. On February 28, 2006, a meeting was held with Mr. Boundy to address the forthcoming School Board's consideration of the recommendation for a 30-day suspension without pay. Those in attendance included Mr. Boundy, Ms. Williams, Ms. Pritchett, Ms. Figueredo, and a UTD representative, Mr. Molnar. The determination was that Mr. Boundy would be recommended for a 30-day suspension without pay for just cause, including but not limited to "deficient performance of job responsibilities; conduct unbecoming a School Board employee; and violation of State Board Rule 6B-1.001, Code of Ethics of the Education Profession in Florida; and School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties; and 6Gx13-5D-1.07, Corporal Punishment--Prohibited." By letter dated March 1, 2006, Mr. Boundy was notified by the School Board's Assistant Superintendent, among other things, that the School Board's Superintendent would be recommending, at the School Board's meeting scheduled for March 15, 2006, the 30-day suspension without pay for just cause, indicating the violations aforementioned. By letter dated March 16, 2006, the School Board's Assistant Superintendent notified Mr. Boundy, among other things, that the School Board had approved the recommendation and that he was not to report to work at Nautilus from March 16, 2006 through April 26, 2006.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order finding that just cause existed for the 30-day suspension, without pay, from employment of Robert Boundy. DONE AND ENTERED this 30th day of April 2007, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 30th day of April, 2007.
The Issue Whether just cause exists for Petitioner to terminate Respondent’s employment as a teacher.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Broward County, Florida. At all times material to this case, Respondent was employed by the School Board as a physical education teacher at Riverglades Elementary School (“Riverglades”), pursuant to a Professional Services Contract, issued in accordance with section 1012.33(3)(a), Florida Statutes (2014). At all times material to this case, Respondent’s employment with the School Board was governed by Florida law and the School Board’s policies. 2007-2008 School Year On February 13, 2008, the executive director of the School Board’s Professional Standards and Special Investigative Unit issued to Respondent a written reprimand based upon allegations of assault and battery. On February 13, 2008, the principal of Village Elementary School, Respondent’s employer at the time, held a meeting with Respondent at which time Respondent was directed to: 1) “follow the school wide discipline plan”; 2) “take a class in Behavior Management and/or Classroom Management, such as ‘Champs’”; 3) “discipline with respect”; and 4) “not to yell at children” 2012-2013 School Year On March 7, 2013, Barton Christopher Duhart, interim principal at Riverglades, met with Respondent and directed that his: [l]anguage with all students be kept professional at all times. Please refrain from using language that is abusive or may be easily misconstrued as being abusive toward any students regardless of their behavior. 2013-2014 School Year On January 15, 2014, JoAnne Seltzer, interim principal at Riverglades, held an informal conference with Respondent regarding an alleged incident involving S.W., a fifth-grade student in Respondent’s physical education class. At that time, it was alleged that Respondent had grabbed S.W.’s arm, yelled at her in her ear, told her “to shut up,” and made inappropriate remarks about the way she talks. In the conference summary report issued on January 21, 2014, Principal Seltzer directed Respondent to refrain from touching, embarrassing, screaming at, or demeaning students in the future. The School Board proposed to suspend Respondent based on the alleged incident involving S.W. Respondent requested an administrative hearing to challenge the School Board’s proposed action. On August 24, 2015, following a one-day hearing, Administrative Law Judge F. Scott Boyd issued his Recommended Order in the case of Broward County School Board v. Robert Konnovitch, DOAH Case No. 14-2696TTS. Based on the evidence presented at the May 22, 2015, final hearing, Judge Boyd found, in pertinent part: On January 10, 2014, Respondent was attempting to move his students inside after their time on the playground. One student, S.W., was talking loudly and frustrating Respondent’s efforts. In response to this, Respondent pulled down on S.W.’s arm or wrist and screamed “Be quiet!” in her ear. S.W. was not physically harmed by this incident and did not cry. However, when asked about how the incident made her feel, she testified “not good.” As a result of Respondent’s conduct involving S.W. and evidence presented at that hearing, Judge Boyd concluded that Respondent was guilty of misconduct in office, incompetency, and insubordination, and recommended that Respondent’s employment be suspended for ten days without pay. Subsequently, the School Board entered a final order adopting Judge Boyd’s Recommended Order. The incident giving rise to the School Board’s proposed termination of Respondent in the instant case occurred on April 1, 2014. On April 1, 2014, M.Z. was a fifth-grade student in Respondent’s physical education class. Shortly before class ended, M.Z. was misbehaving and got out of line. In response to M.Z.’s misbehavior, Respondent became angry and threatened to punch M.Z. in the face. Respondent, who was standing very close to M.Z., turned around and yelled at M.Z.: “If you don’t get in line, then I will punch you in the face.” M.Z. was not physically harmed by this incident and did not cry. However, he was scared by Respondent’s threatening comment and got back in line. Respondent made the threatening comment in front of the entire physical education class. Respondent’s conduct was inappropriate and verbally abusive. Respondent could certainly have projected authority and corrected M.Z.’s behavior without the need to resort to a physical threat of violence.2/ The persuasive and credible evidence adduced at hearing establishes that Respondent is guilty of misconduct in office in violation of Florida Administrative Code Rule 6A-5.056. By verbally threatening M.Z. with physical violence, Respondent violated Florida Administrative Code Rules 6A-10.081(3)(a) and (e) by failing to make reasonable effort to protect his students from conditions harmful to learning and intentionally exposing a student to unnecessary embarrassment or disparagement. Respondent also violated rules 6A-5.056(2)(d) and (e) by engaging in conduct which disrupted the students’ learning environment and reduced Respondent’s ability to effectively perform duties. The persuasive and credible evidence adduced at hearing establishes that Respondent is guilty of incompetence in violation of rule 6A-5.056(3). By verbally threatening M.Z. with physical violence, Respondent failed to discharge his required duties as a teacher as a result of inefficiency. Respondent was inefficient by failing to perform duties prescribed by law and by failing to communicate appropriately with and relate to students. The persuasive and credible evidence adduced at hearing establishes that Respondent is guilty of gross insubordination in violation of rule 6A-5.056(4) by intentionally refusing to obey a direct order, reasonable in nature, and given by and with proper authority. By failing to comply with the specific directives detailed above, Respondent intentionally refused a direct order, reasonable in nature, and given by and with proper authority. The persuasive and credible evidence adduced at hearing fails to establish that Respondent is guilty of immorality in violation of rule 6A-5.056(1). The persuasive and credible evidence adduced at hearing fails to establish that Respondent is guilty of violating School Board Policy 4008(B). No such policy was offered into evidence at the final hearing.
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 upholding the termination of Respondent’s employment.3/ DONE AND ENTERED this 8th day of January, 2016, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 2016.
