The Issue Whether just cause exists to sustain Respondent’s ten-workday suspension from employment with the Miami-Dade County School Board (“School Board” or “Petitioner”).
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 (“School District”), pursuant to article IX, section 4(b) of the Florida Constitution and section 1012.23, Florida Statutes. Respondent was hired as a full-time teacher at Mandarin Lakes K-8 Center Academy (“Mandarin Lakes”) and was employed there as a teacher of emotionally behavior disabled (“EBD”) students when all events material to this case took place. She has been employed in the School District for 14 years and, prior to that, for two years in the School District of Broward County, Florida. She has been an EBD teacher throughout her career. As a teacher, Respondent was subject to School Board policies and the collective bargaining agreement under United Teachers of Dade, as well as the Florida State Board of Education. During the 2019-2020 school year, D.J. and I.N. were students in Respondent’s classroom. D.J. was in the EBD class, which is a class for students with an emotional disability. No evidence of record concerning whether I.N. is an EBD student, as well, was presented. I.N. was a student along with D.J. in Respondent’s class who is currently in the fourth grade, however, they are not friends he said. I.N. had heard Respondent yell at D.J. prior to this incident. On October 10, 2019, D.J. asked Respondent to use the bathroom and Respondent said, “No.” D.J. said he was going to pee on himself. This was known by Respondent as behavior she had seen often after the lunch period when the students were not eager to return to school work. Respondent did not allow D.J. to use the bathroom. Respondent called D.J. “pissy,” and it caused the students in the class, including I.N., to laugh. After that, D.J. started to get mad or angry, and D.J. started to hit his head with his hand. Also, D.J. felt “bad” about the situation. Respondent did nothing to stop the students from laughing at D.J. Respondent then asked D.J. if he wanted to be Baker Acted after she observed him picking a scab, which caused it to bleed, and hitting himself on the head. When he got home later that day, D.J. was still upset, so he told his mother what happened at school and asked her what a Baker Act was. D.J.’s siblings have severe mental health issues and have been Baker Acted before; therefore, it was concerning to C.R. (D.J.’s mother) that Respondent made the Baker Act comment to D.J. D.J. told his mother that Respondent called him “pissy” because he went to the bathroom a lot. D.J. was taking medication at the time, of which Respondent was aware, that caused him to have to use the bathroom a lot. D.J. was seven years old when he testified at hearing and was recalling an incident that happened when he was five to six years old. After the incident, D.J. started to say that he wanted to be Baker Acted so he could be with his brother, who at the time was subject to a Baker Act commitment. At that time, C.R. wrote a statement detailing the incident from her perspective, which was consistent with her testimony at hearing. Respondent admitted to using the word “pissy.” Respondent also admitted to making a comment about Baker Acting D.J. because D.J. pulled at a scab and rubbed the blood on himself and also because he smacked himself on the head. Later, Respondent admitted during cross-examination that the scab incident did not occur on the same day as the Baker Act comment and was unrelated. She further admitted that she is not qualified to Baker Act someone and was not serious about D.J. being Baker Acted. This was an “unfortunate incident,” and Respondent apologized for it. D.J. has remained Respondent’s student for nearly a year and a half since the two incidents occurred in 2019. Respondent has maintained a good relationship with both D.J. and his mother. The School Board and the United Teachers of Dade, the classroom teachers’ union, have agreed to be bound by the principle of progressive discipline and that discipline imposed shall be consistent with that principle. Accordingly, they have agreed that the degree of discipline shall be reasonably related to the seriousness of the offense.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Miami-Dade County School Board issue a written reprimand to Respondent. DONE AND ENTERED this 1st day of April, 2021, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 1st day of April, 2021. COPIES FURNISHED: Michele Lara Jones, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132 Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Mark Herdman, 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 it was proven by clear and convincing evidence that Respondent committed the offense(s) charged in Petitioner's Petition; and, if so, what discipline is appropriate.
Findings Of Fact The undersigned makes the following findings of relevant and material facts: Stipulated Facts During the 2014-15 school year, Respondent was employed as a teacher at Frontier Elementary School ("Frontier"). Respondent is an experienced teacher. Facts Established at the Hearing Petitioner is the duly-constituted school board of Palm Beach County, Florida. It is charged with the duty to provide a public education to the students of Palm Beach County and to establish policies and programs consistent with state law and rules that are necessary for the efficient operation and general improvement of the Palm Beach County district school system. Respondent was employed by Petitioner as a teacher in the Palm Beach County district school system for 16 years and has been teaching since 1996. At all relevant times, Respondent was employed at Frontier in Palm Beach County, Florida. Respondent previously taught second grade, third grade, and fifth grade in self-contained class settings. During the events relevant to this action, she was an English Language Learners (ELL) resource teacher to children in grades first through fifth. Her performance evaluations had been positive up until the events which are involved in this matter. The employment relationship between Petitioner and Respondent is subject to the terms and conditions of a collective bargaining agreement between Petitioner and the Classroom Teachers Association of Palm Beach County ("CTA"). Petitioner has alleged in its Petition that Respondent is guilty of the following violations of statute, School Board policies, or administrative rules: School Board Policies 0.01(2)(c) and (2)(d) Commitment to the Student, Principle I; School Board Policy 3.02(4)(a), (4)(d), (4)(e), (4)(f), (4)(h), and (4)(j), Code of Ethics; School Board Policy 5.002, Anti-Bullying and Harassment, Expectations; School Board Policy 1.013(1), Responsibilities of School District Personnel and Staff, School Board Policies; School Board Policy 3.27, Criteria for Suspension & Dismissal and Code of Ethics of the Education Profession in Florida; Article II, Section M of the CTA Collective Bargaining Agreement; Rule 6A-5.056, F.A.C., (2) Misconduct in Office; H. Rule 6A-5.056(4), F.A.C., of [sic] Ethics of the Education Profession in Florida; I. Rules 6A-10.081(3)(a) and (3)(e), F.A.C., Principles of Professional Conduct for the Education Profession in Florida. The facts underlying these alleged violations are outlined in paragraphs 8 through 12 of the Petition filed by the School Board dated March 2, 2016. See DOAH docket entry and Petition filed on March 2, 2016. Incident Involving Z.N. Z.N., a student of Respondent, was called by the School Board. On direct examination, he was unable to remember how he was treated by Turnbull when she was his teacher. Other than acknowledging that he remembered being pulled out of Petitioner's class, Z.N. articulated no credible, clear, or convincing testimony supporting any of the allegations lodged against Respondent regarding her interaction(s) with him. Z.N.'s mother, J.N., testified that Turnbull was her son's teacher when he previously attended H.L. Johnson Elementary School ("H.L. Johnson"). Z.N. would come home every day crying and seemed miserable in Respondent's class. These observations occurred when he was Respondent's student at that elementary school. He was moved to her class at Frontier on September 22, 2013. There were times when he attended her class at H.L. Johnson that he would come home from school and would be visibly shaking. He would throw up the night before school, and she would have to physically put him in the classroom while he would beg and scream not to stay. Prior to and after leaving her class, Z.N. did not exhibit those behaviors. She wrote a letter complaining to the principal about Respondent. His mother also testified that Z.N. has been diagnosed as having attention-deficit/hyperactivity disorder ("ADHD"). The mother observed that on days where he had to attend school with Respondent at H.L. Johnson, she noticed a big difference in his sleeping and his eating. His demeanor would change, and he became withdrawn. The mother of Z.N. did not personally observe any interaction between her son and Respondent in the classroom. The father of Z.N. testified as well. He recounted that his son did not want to attend school while he was previously in Respondent's class at H.L. Johnson. He would become upset, emotional, and withdrawn. His son "threw fits," broke down, and cried when he had to go to school. To investigate his son's disconcerting response, the father personally "observed" the class three times, from outside the door.1/ During one visit, he observed the class being somewhat reckless, and Respondent was trying to get her class under control. He heard Turnbull slam a book on the desk to get the attention of the class. He heard Petitioner use the "F bomb" on one occasion.2/ When Z.N. transferred out of Turnbull's class, he started doing very well, began to succeed, and started to come out of his shell. He began going to school with less of a problem. Like the mother, Z.N.'s father did not personally observe or witness any interaction between his son and Respondent. E.D. was a student in the same class with Z.N. and Respondent at H.L. Johnson. She testified that she found Respondent to be a great teacher, and she learned things in the class with her. She felt that Turnbull was very nice to other students and her. She never saw Turnbull pick on Z.N., or treat him in a way that she felt was unfair. On the other hand, E.D. testified that Z.N. was loud and disruptive in class. Z.N. caused problems in the class which prevented the class from moving forward. E.D. did not recall hearing Respondent yell at any students, other than perhaps once when the class was loud. She never saw or heard Z.N. cry in class. The testimony of E.D. was credible and gained from personal knowledge and actual observation of teacher/student interactions in the classroom. Turnbull testified about her involvement with Z.N. At some point in time, Z.N. eventually became her class student. He was bright, although he had a diagnosis of ADHD and had been prescribed medication, which he "took infrequently, at best." He acted out and was disruptive in class virtually every day. He was disruptive in different ways, sometimes calling out and sometimes making funny noises with his mouth. At times, he would bother the other children. The behavior of Z.N., combined with that of other students, was difficult and disruptive, preventing her class from moving along according to the curriculum. As a result, the class was falling behind the other classes academically. Respondent did yell at Z.N. but not as a first resort. She would first talk to him and ask him to stop. She tried different techniques with Z.N., but admitted that there could have been times when her voice got louder when she had to repeat the same thing to Z.N. six or seven times within a short time period. She has a loud voice, which some students can interpret as yelling, but that was not her intent. Until the time Z.N. left her classroom, she felt that the parents were supportive. The mother sent her emails thanking her partially for what she was doing for her son, including an email thanking her for easing his transition into her class. She felt compassion for Z.N. and believed that he could not control what he was doing, particularly when he was not regularly taking his prescribed medication. The more persuasive evidence is that Z.N. presented teaching problems and challenges to Respondent. He disliked going to school after he was assigned to Respondent's classroom, but the undersigned is not convinced that his reaction to school was based on any traumatic treatment by Respondent. Z.N. himself offered absolutely no evidence regarding any wrongdoing by Respondent. Based on this record, there was simply a lack of clear and convincing evidence to support the allegation(s) that Respondent violated any statute, policy, or rule regarding her interaction with Z.N. Incident Involving Student A.C. A.C. was called by the School Board. He was Turnbull's fifth-grade student at Frontier. A.C. is now 13 years old and in seventh grade. On direct examination, he testified that he liked having Respondent as his teacher. He also recounted that there was not a time he did not want her to be his teacher or a time he did not want to be taught by her. Inconsistently, however, he also testified that he talked to his parents about getting him out of Respondent's class because she was rude and he did not want to be in her class. After he was no longer in her class group, there came a time when Respondent wanted A.C. to return to her group. A.C. testified that Turnbull came to get him and took him outside to talk. She stood close to him outside in a hallway alcove. He said that he was scared and nervous because he did not like the idea of a teacher talking to him. However, Respondent did nothing else to make him feel uncomfortable while they were standing in the hall. Respondent was merely talking to him. A.C. testified that when he spoke with Respondent in the hallway, she told him how much she liked him. She was not yelling or rude to him. This same hallway discussion between Turnbull and A.C. was apparently observed by Jacquelyn Marie Smith, a ten-year teacher at Frontier. She testified that one day as she was walking down the hallway with a few students, she observed Respondent and A.C. in the alcove of a doorway outside a classroom, standing about eight inches apart. It appeared to her that Respondent was speaking to A.C. and reprimanding him for something. She observed the look on A.C.'s face and could tell that he was very uncomfortable. However, she did not hear anything said by either Respondent or the student. She assumed the student was being disciplined based on his body stance and facial expressions. She did not observe Respondent place her hands on A.C. in the hallway. She testified that she observed the situation for "maybe 10 seconds."3/ There was nothing about Respondent's demeanor, posture, or anything else that led her to believe that Respondent was angry or upset. She never observed A.C. crying during her brief observation of this hallway encounter. Another teacher, Rosa Cabrera, testified that as she was passing by, she also saw Respondent in the hallway with her finger pointed at "J," a second-grader. Respondent was crouched down in the student's face saying things which Cabrera could not hear. She had no idea what Respondent was saying to the child. She did not hear anything, although she passed very close to Respondent and the student. The two were talking in a tone lower than a typical conversational tone. Like Smith, Cabrera found the fact that Respondent was standing so close to the student to be improper.4/ Respondent testified that A.C. was removed from her group for a period of time. She understood that he had gone home one day and expressed to his father that he was upset because he felt that she did not like him or that she had been mean to him and he did not want to go back to her class. When he was removed from her teaching group, Turnbull became concerned about A.C. not being provided the teaching instructions he needed. It was unrebutted that she exchanged emails with the assistant principal expressing her concern for him and her desire to work with A.C. again. As a result of her request, she was directed by the assistant principal to work with A.C. again. Respondent decided to speak to A.C. first to be sure that he was comfortable with her. She asked A.C. to come out of his class into the hallway, and they spoke in the hallway alcove. The alcove was the width of the door and perhaps an additional six inches on either side. She did this so that their conversation would not be overheard by classmates, would not embarrass him, and to ensure that A.C.'s privacy would be protected. She stood close to A.C. because there was little room in the alcove and she could hear his voice. She wanted to speak quietly and gently to him so that she would be more reassuring to him.5/ Respondent told A.C. that she understood that he felt that she was angry at him for some reason. She told him that she wanted to reassure him that she was not angry with him. Respondent told A.C. that there had been some misunderstanding between them and she would like to try to clear it up. She asked him how he felt about coming back into her class group, and told him that they missed him because he was a great addition to it. By the time the conversation was over, A.C. was smiling. They shook hands and said that they would see each other in group later that day. A.C. came to her group later that day and had an excellent session, smiling more than he had before. At no time in her conversation with him was there any scolding, anger, or cross words used. The evidence from the student, A.C., did not support a finding of any violations by clear and convincing evidence. What he did recall, and testify to, did not amount to infractions by Respondent. Likewise, the fellow teachers' unfavorable conclusions about what they observed in the hallway alcove were based on brief observations and did not constitute clear or convincing evidence of any violations. Incident Regarding Marisa Madzi Respondent "pushed in" to the classroom of Marisa Madzi, a third-grade teacher at Frontier.6/ Madzi alleged that Respondent "corrected her" in front of the class, although Madzi could not recall specifically what the correction was about. She recalled that Respondent "chimed in," telling her that she was wrong about a point or topic she had been explaining to her class. Madzi felt that Respondent acted in an unprofessional manner and that if she had an issue, she thought she should have addressed it afterwards and not in front of the class. However, Respondent's statement in front of the class did not cause her to stop her teaching. Respondent previously complained to Madzi that Madzi was loud in the classroom when she taught and that it was interrupting Respondent while she was working with her small group.7/ Respondent explained the incident in a different way. She was working with her students when one of them shared with her his response to Madzi's explanation of the answer. The student explained to Turnbull that he did not understand why his answer was wrong. She looked at the question and could see where his confusion came from. Either Madzi walked over to her to determine what she was talking to the student about or Respondent gestured for her to come over. She told Madzi that "I explained it to him, but you may want to go further into explaining to him why that's the right answer." Madzi had a reaction to being called over by Turnbull and said, "Okay, I will take care of it." Madzi had a funny look on her face that made Respondent uncomfortable. Thinking that Madzi may have been upset by their interaction in class, Respondent sent her an email (Resp. Ex. 40), saying that she did not intend to step on Madzi's toes. The purpose of the email was to apologize for giving Madzi the impression that she was correcting her. Turnbull testified that during the entire time that Respondent worked at Frontier, Madzi never spoke to her to suggest that there was anything about her, her teaching style, or her dealings with her students that she was uncomfortable with. The undersigned finds that there was not clear or convincing evidence to conclude that the incident in Madzi's class constituted a violation of any statute, policy, or rule. Incident Involving Rose Cabrera Rose Cabrera has been a teacher at Frontier for 12 years. She was driving home from campus one day and felt that Respondent was driving behind her in an aggressive manner.8/ The next day Cabrera approached Respondent on campus and said that she was the one that Respondent was tailgating and yelling at. She claimed that Respondent immediately got upset and started yelling at her and telling her that she was unprofessional. Cabrera then walked away. The next work day, Respondent stopped Cabrera in the hallway and asked to talk. Cabrera claimed that Respondent told her that "there were two possible reasons why people tailgate; either they are crazy or they have a problem, like something's going on." Cabrera testified that she walked away; but, that Respondent continued to yell at her, saying that she was unprofessional and pointing her finger at her. No students or other employees were present at either of these encounters between Respondent and Cabrera, and none were called to testify about them. Turnbull testified that she recalled the incident. She was running late for an appointment and was driving in a rush. She did not recognize the person driving the car in front of her. The next day, as she left the mail room, a person whom she did not recognize was blocking her way. The woman began to berate her, stating that Respondent had been tailgating her, that she was crazy on the road, that the woman had recently had an accident and was very nervous on the road, and that Respondent should not have been doing what she did. Respondent "could not get a word in edgewise." Neither woman was shouting. Shortly thereafter, Respondent saw Cabrera in the hallway and asked to speak with her. She tried to explain to her that she was sorry if she had upset her on the road. The two were talking over each other, but Respondent tried to explain that if somebody is behind her or beeping or waving or tailgating, she usually just gets out of their way, as obviously they are in a hurry for some reason. Cabrera said that she did not want to talk to Respondent. She had upset her the other day and was upsetting her again, so she walked away. As Cabrera was walking away, Respondent told her she was being unprofessional because she was not allowing Respondent to reply to the accusation. They never spoke of the matter again. The off campus incident on the road and the follow-up discussions on campus do not support a violation of any statute, rule, or policy by clear and convincing evidence. There was no credible evidence presented to suggest that any students or other staff members were affected, and the dispute was in the nature of a personal disagreement between Turnbull and Cabrera. This conduct and personal encounter, while regrettable, did not rise to the level of a violation of a statute, policy, or rule by Respondent. Incident in Alyssia Liberati's classroom. Alyssia Liberati worked as a teacher at Frontier for approximately 15 years. Respondent was teaching two students at the back table in her classroom, while Liberati was teaching the main class a social studies lesson. Liberati asked her students a question and, when some raised their hands, Respondent inexplicably raised her hand as well. The students thought that was funny. Liberati did not find Respondent's action to be appropriate because she was asking the children the question, not Respondent. Liberati could not remember whether Respondent was working with her students on a separate matter or whether they were included as part of the social studies lesson. Respondent claims they were coordinating their work, and one of her students wanted to participate in Liberati's question. Turnbull further testified that when the class was asked this question by Liberati, one of Respondent's own students had the correct answer. She encouraged the student to raise his hand and answer Liberati's question. When he just smiled, she offered to raise her hand for him, and he agreed. When she raised her hand, Liberati called on her. When the student would not answer, despite her encouragement, Respondent announced the student's answer and attributed it to him. Liberati said nothing to her then or after class and did not chastise her in any way, then or later. Respondent testified that part of her job was to help the English for Speaker of Other Languages (ESOL) students acquire oral language and the ability to socially interact and participate. She wanted to show the student that he should not be afraid of participating. Liberati continued on with her class and never suggested to Respondent that by raising her hand and offering her student's answer, she had disturbed her class. Empty Classroom Incident with Alyssia Liberati On another occasion, Respondent went to Liberati's classroom to "push in" and found the classroom dark and empty. Respondent waited for approximately ten minutes, thinking that the students may have been out of the room for some reason and would be late getting back. When the class never appeared, Respondent left. She wrote an email to Liberati, asking that she be notified in the future if the class and teacher were not going to be in the room at her designated arrival time.9/ Pet. Ex. 12. Liberati testified that she received an email from Respondent that night, which she characterized as requesting that she let Respondent know next time in advance if she was not going to be in the classroom because her time is valuable, that she does not have much time to go from one classroom to the next, and that she had wasted her time trying to find out where her students were. She responded to the email late that night, explaining about her daughter. She found Respondent's email to be offensive and inappropriate. The next morning, Respondent read the late night email from Liberati and, for the first time, found out about Liberati's daughter's situation. She responded immediately to Liberati and explained that at the time that she wrote her email, she had not known that Liberati's absence had been due to a family emergency. She also inquired about the well-being of her daughter. Pet. Ex. 12. Respondent further wrote, "No offense was intended," and "[S]o I hope none was taken." She followed up by going to Liberati's room in the morning to ask her if she had seen her email from that morning. Liberati replied that she had not yet seen it. Respondent explained to her that had she known that Liberati's daughter was ill, she would have never sent the email. Respondent told Liberati that her daughter takes priority and that she inquired as to how her daughter was doing. Liberati testified that she was offended by the email and that Respondent did not have to send it. She felt that Respondent could have asked another teacher where her students were. Respondent tried to explain to her that she had been instructed not to knock on other teachers' doors for any reason, so she did not-–as she did not want to disturb other classes. Nonetheless, Liberati was very angry with her. During Respondent's follow-up about the second email the next morning, Liberati felt that Respondent was in her personal space and she felt uncomfortable. She noted that Respondent's tone was very rude and confrontational and felt Respondent should not be speaking to her like that in front of the children in the hall. However, Liberati acknowledged that Respondent expressed to her in one form or another that no offense was intended. Liberati's coworker, Tara Levine, saw Respondent come down the hallway the next morning in what she described as a fairly aggressive manner, at a fast pace and with an annoyed look on her face. Levine observed a conversation between Liberati and Respondent which she felt was "a little heated." However, Levine admitted that she could not remember the conversation or its tone. She felt it was necessary to remove students from the area, which was in the hallway just before school started. Levine testified that Respondent's finger was in Liberati's face, although she observed that Liberati is much taller than Respondent, who was standing very close to Liberati. Levine never reported the incident to any administrator. Based on an objective view of the facts involving Liberati's classroom hand-raising incident and their exchange of comments regarding the empty classroom incident, there is no clear and convincing evidence that these events constituted a violation of any statute or rule. Respondent was attempting to coach her student to raise his hand when he had the right answer, and then modeled the hand-raising for him. Rather than doing something improper, Respondent was serving her student in a manner that caused no problem to Liberati. While Liberati may have been taken back by this technique, it did not constitute a violation of any rule or policy. Likewise, there was nothing improper about the email written by Respondent, who did not know about the ill child. When she found out, she responded appropriately and with due concern for the child, explaining that she did not know of the circumstances. Although the undersigned credits the observation by Levine, the hallway confrontation between Liberati and Respondent does not rise to the level of clear and convincing evidence to support a violation of statute, policy, or rule. Incidents Involving J.B. Respondent taught in a class of students with Janet Vino, a teacher at Frontier. Vino testified that Respondent was very aggressive toward her student, J.B. Respondent would get "in his face," speaking loudly enough for the rest of the class to hear. While Vino conceded that there was nothing inappropriate about reprimanding a student who is having behavior issues, Respondent did so in a way that Vino could hear Respondent as she was teaching her lesson off to the side. Vino described Respondent's demeanor with J.B. as very loud, with her being very close to him and with her fingers pointing in his face. Vino said that Respondent on occasion would ask her in class whether she had issues with him too. On occasion, J.B. would hide in the bathroom to avoid going with Respondent. When he would come out to go with her, he would be sulking. J.B. was in the midst of a number of family and legal-related problems, and he also had discipline issues. Vino acknowledged that she was never trained to avoid pointing your finger and shaking it at a student or not to "get too close to a student." Respondent conceded that she had problems with J.B. He would not do his work and was disruptive. J.B. would do disruptive things, like crawl under the work table and lift it up with his shoulders, while she was working with the other students. J.B. spoke to her disrespectfully at times and would hold up the class by taking his time getting started and by not being ready when she would arrive to pick him up. Sometimes he would go in the bathroom and would not come out. The effect of J.B.'s behavior on her teaching was to limit the time that she had available to teach him and other students in his group. It often took ten minutes to get J.B. to the room and seated at the table, before they could even get started. His behavior interrupted the lessons that Respondent was trying to teach and interrupted the learning of the other students. Respondent sought help with J.B. from his teacher, Vino, and Assistant Principal Witt. Respondent sought help from Vino one time in her classroom, calling her to ask if she could come over and help with J.B. because he was refusing to work and instead was writing on the worktable with a crayon. Vino never complained to Respondent about her request for help but seemed unwilling to help her with J.B. As a result, Respondent did not seek her assistance again. Turnbull sent emails to the principal and the assistant principal concerning J.B. and his problems at school. Respondent felt that J.B. was a special child who came from a difficult situation and that people at the school should be working to help him. She wanted to keep the administration informed regarding her dealings with him and how he was doing with her. Resp. Exs. 10, 11, 12, 15, and 24. Respondent made efforts to try to work with and communicate with J.B., notwithstanding his behavioral issues. She tried speaking to him directly and told him that his behaving was keeping him from learning and preventing the other student from learning. Respondent testified that she liked J.B., and, as disruptive as he was, she felt a great deal of compassion for him. She understood his bad situation at home and knew that his family was split up among foster homes. She believed that his disruptive behavior was attention-seeking and that he was an angry boy. The undersigned finds that the more credible and persuasive evidence establishes that Respondent had trouble with J.B., who presented a formidable challenge to teach. This very likely would have been true for any teacher dealing with him. Respondent sought help from his teacher and the administration. The observations and concerns raised by Vino, while understandable, do not rise to the level of providing clear and convincing evidence of a violation of any statute, policy, or rule. Behavior Observed by Principal Susan Groth Susan Groth has been the principal at Frontier for six years. She felt that the collegial and helpful climate at her school changed after Respondent came to the school. While offering no causal or underlying link to Respondent, Groth claimed that teachers became more reserved, no longer left their doors open in the morning, and had fewer interactions with one another. She claimed that this collegial atmosphere changed with Respondent's arrival.10/ Groth claimed to have personally witnessed that after certain encounters with Respondent, Community Language Facilitator Melady Roque would be shaken and crying.11/ Groth personally encountered combative behavior from Turnbull when she would try to have conversations with her. She also started to receive complaints from other teachers about Turnbull.12/ In response, she offered Respondent different training opportunities, which Respondent attended. Groth provided Respondent with two mentors for advice because she was new to the "push in" and "pull out" class system at Frontier. Groth was made aware of issues involving Respondent from other teachers within her first three weeks at the school. She received reports about Respondent concerning intimidation, humiliation, interruptions, unprofessionalism, and Respondent being very defensive.13/ However, she did not witness those encounters or behaviors herself. She noted that Respondent was defensive when she would provide constructive feedback to her. During one of her classroom observations of Respondent at work, a student misread certain sight words. Respondent nonetheless praised his work. Groth addressed the matter with her. She felt that Respondent's response to her counseling was very defensive. Subsequently, Groth gave a written observation report to Respondent. Respondent disagreed with several observation points made by Groth. She provided Groth with a written explanation setting forth her rebuttal and verbally defended her position.14/ Despite this, when Groth provided her with helpful resources and training to review, Respondent participated. However, Groth felt that Respondent did not accept her criticism very well. The issues that Groth had with Respondent were becoming less serious as time went on. It appeared to Groth that by January of Respondent's first year at Frontier, Respondent was beginning to properly adjust to the school environment and personnel. However, shortly thereafter, during an investigative meeting with Turnbull, Groth confronted Respondent with the names of several teachers that had complained about Respondent's behavior.15/ During the meeting, Turnbull had a pad of paper out and was bearing down hard and writing every time a new name of a witness was disclosed by Groth. At one point, she threw down her pencil on the table in frustration and stated, "This is horse shit." She did not throw the pencil at any person, nor did Groth think that it was her intent to do so. Respondent's union representative, at one point, had to calm her down because Respondent's arms were flailing, and she was explosive. Respondent used profanity during the meeting.16/ Despite Turnbull's actions, the process went on to completion. Neither Respondent nor her union representative ever asked for the meeting to be adjourned. Respondent's actions during that meeting were documented.17/ Pet. Ex. 11. Turnbull provided her version of this investigatory meeting with Groth. She received notification that an incident involving A.C. was being investigated. The notice of the meeting advised her that there was going to be an inquiry into an incident regarding A.C. At the meeting, other matters, unrelated to A.C., were brought up by the principal. Respondent objected to the other matters being raised. She felt that she had been "blindsided" and was being treated unfairly by consideration of matters that were not part of the official notice to her. Respondent became upset and started crying because these issues were statements made against her by colleagues, and she did not know so many people were upset with her. She testified that none of her colleagues ever approached her about any of these complaints or issues. She thought that the meeting was called to discuss one specific incident regarding one specific child. She was overwhelmed when she learned that there were so many complaints against her by teachers who had never said anything to her. Respondent was completely unaware that the statements from other teachers had even been taken. She admitted she felt betrayed and was extremely upset, stunned, and shocked. She did not threaten any person and did not confront any of the complaining teachers or staff members. Groth claimed to be worried about the safety and security of her staff and students, because of Respondent's profanity, emotional state, and explosive behavior at the meeting. Groth worried about Respondent "going after" one of the people on the list of witnesses announced at the meeting. After the meeting, Respondent was escorted off the campus without incident. Groth's belief that the mood at her school changed after Respondent arrived, without her own specific observations of conduct by Respondent, is nonetheless credited. However, her "sense" of an atmospheric change falls short of clear and convincing evidence of a violation of a policy or rule by Respondent. While Groth had the responsibility to observe and evaluate Respondent's performance, Respondent had the right to professionally and respectfully defend that performance in the observation conference. The manner of her evaluation performance defense does not violate any statutory policy or rule. However, the undersigned finds that Respondent's use of profanity and her unrestrained and explosive conduct, at the investigative meeting, were inappropriate and insubordinate. Petitioner provided sufficient and credible evidence to prove a violation of the rules and policies by clear and convincing evidence regarding her actions and conduct during this investigatory meeting with Groth. Other Relevant Events and Testimony From Respondent Aside from teachers who claimed difficulties or hostile encounters with Respondent, there were also teachers and colleagues who complimented her work and teaching methods. Janine Brockelbank has been a "push in" teacher at Frontier since 2003, like Turnbull. When she worked together in the room, she did not observe any problems with Turnbull. She observed Respondent working with Lisa Caprio's students, and the interaction seemed positive and professional to her. Turnbull often spoke closely and quietly to children in consideration of the privacy of the children and to prevent embarrassment. Brockelbank also stated that Respondent was cooperative and collaborative when they compared lesson plans with one another. Caprio taught at Frontier since it opened in 2001. She found Respondent to be on time and was always prepared to work with students. She promptly got started with the students and seemed to be ready to work with them. Caprio never had any issues with Respondent in her classroom. Caprio stated she did not find any issues with a teacher interrupting her lesson for assistance with a student. In her view, it was appropriate for a "push in" teacher to ask for her help with a student. Jennifer Eddy taught at Frontier for 13 years. Eddy observed Respondent work with her students. There was nothing that Respondent did while she was teaching in the same room that disturbed her or kept her from doing her job, nor caused her concern for the well-being of Eddy's students while they were taught by Respondent. Eddy thought that Respondent's one-on-one instruction seemed appropriate, collaborative, positive, helpful, and beneficial to the students. Catherine Burda is a 14-year veteran teacher at Frontier. She observed Respondent work hard and well with one of her students and felt she learned a lot from Respondent. Respondent had a good relationship with her students and came prepared each day. Burda wrote a positive and praising email to the principal regarding Respondent's work. Resp. Ex. 16. Burda appreciated that Respondent always spoke honestly and freely with her. Karen Lundgren worked with Respondent at H.L. Johnson and considered her to be a good colleague. Lundgren worked closely with Respondent, who was cooperative, collegial, and friendly. Respondent got along with students and taught them well. She acted professional and caring towards both students and colleagues. Smyrna Daumec, an 18-year teacher, taught with Respondent at H.L. Johnson. She found Respondent to be a good colleague because Respondent would contribute ideas on how they could work together and they shared lesson plans. Notably, she witnessed Respondent having professional disagreements with colleagues, but none of those professional disagreements adversely impacted her ability to teach. Respondent knew the material that she was teaching and was a cooperative coworker. Respondent was kind to the students and not belittling or mean. Parent S.S. had a daughter in Respondent's third- grade, gifted math class at H.L. Johnson. Her child learned and made progress in Respondent's class. Respondent remains her favorite teacher to this day. Her child learned and achieved in Respondent's class. Respondent consistently kept S.S. updated on her child's progress through email or notes in the agenda. S.S. never had any problems with Respondent, and her daughter had a good year of school when she was with Turnbull. She observed that Respondent interacted warmly with students and parents and acted very friendly and cheerful. Parent C.B. knew Respondent as a teacher for her two children at H.L. Johnson. When her children had Respondent as a teacher, they never acted or manifested a desire not to go to school. Respondent kept her updated on her children's progress, and she had open communication with Respondent while she was the teacher for both of her children. She found Respondent to be volunteering and helpful. She saw Respondent interact with other children in addition to her own when she was on campus and did not observe anything that was negative in those interactions. Her children had good years in school when they were in Respondent's class and seemed happy with her as a teacher, despite Respondent being a strict teacher. As a parent, C.B. was very happy with Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order withdrawing the proposed five-day suspension and issuing instead a letter of reprimand to Respondent regarding her conduct during the investigatory interview with her school principal. DONE AND ENTERED this 9th day of March, 2017, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 9th day of March, 2017.
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 In DOAH Case No. 97-5828, the issue is whether the Respondent committed the violations alleged in the Amended Administrative Complaint dated March 24, 1998, and, if so, the penalty which should be imposed. In DOAH Case No. 98-2387, the issue is whether the Respondent committed the violations alleged in the Notice of Specific Charges dated July 30, 1998, and, if so, whether he should be dismissed from employment with the Miami-Dade County School Board.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board of Miami-Dade County, Florida, is the entity authorized to operate the public schools in the county and to "provide for the appointment, compensation, promotion, suspension, and dismissal of employees" of the school district. Section 4(b), Article IX, Florida Constitution; Section 230.23(4) and (5), Florida Statutes (1997). The Department of Education is the state agency responsible for investigating and prosecuting complaints against teachers holding Florida teachers' certificates for violations of Section 231.28, Florida Statutes. Section 231.262, Florida Statutes. Pursuant to Sections 231.261(7)(b) and 231.28(1), Florida Statutes, the Educational Practices Commission is the entity responsible for imposing discipline for any of the violations set forth in Section 231.28(1). Richard V. Powell holds Florida Educator's Certificate No. 585010, which covers the subjects of journalism and English- as-a-Second-Language ("ESOL"). His teacher's certificate has an expiration date of June 30, 1999. Mr. Powell was first employed as a teacher with the Miami-Dade County public school system in August 1985. From 1989 through August 1996, Mr. Powell was assigned to Jose Marti Middle School as an ESOL teacher; in August 1996, he was assigned to John F. Kennedy Middle School ("JFK Middle School") as an ESOL teacher; in August 1997, he was given a new assignment as the facilitator of JFK Middle School's School Center for Special Instruction. On November 26, 1997, Mr. Powell was temporarily assigned to the Region II office. At all times material to this proceeding, Mr. Powell was employed by the School Board under a professional service contract. November 1995 incident On the evening of November 19, 1995, at around 10:00 or 10:30 p.m., Mr. Powell was driving his Ford Bronco on Pembroke Road in Broward County, Florida. Mr. Powell's fourteen-year-old son was sitting in the front passenger seat, and he and his father began arguing about his school behavior and progress and about his failure to do his chores around the house. Mr. Powell became angry and punched his son in the mouth with his fist and then pulled the Bronco off the street, into a vacant lot. Mr. Powell got out of the Bronco, walked around the back of the vehicle to the door on the passenger's side, opened the door, and pulled his son out of the vehicle. After the child was outside the vehicle, Mr. Powell punched his son once in the face and, when the child fell to the ground, Mr. Powell kicked him at least once in the ribs. 8/ The child broke away and ran to a convenience store about twenty-five yards from the vacant lot, where a witness to the incident had already called the police. When he arrived at the convenience store, the child was sobbing and holding his side; blood was pouring from his lip. 9/ After the altercation with his son, Mr. Powell was not feeling well and, believing that his son had run the short distance to his home, Mr. Powell drove home. He waited a few minutes for his son and then walked from his home to Pembroke Road. He saw his son, a police car, and an ambulance at the convenience store, and he walked up to the police officers and identified himself as the child's father. Mr. Powell's son was taken to the hospital and treated and released with a split lip and a bruise in the area of his ribs. Mr. Powell was taken to the Pembroke Pines, Florida, police station. Mr. Powell is a diabetic, and, while he was at the police station, he asked to be examined by a doctor because he did not feel well. He was taken to the hospital, where he remained for about an hour. After his release from the hospital, Mr. Powell was arrested and charged with child abuse. On July 29, 1996, after a bench trial on child abuse charges, the court found Mr. Powell guilty but withheld adjudication, sentenced him to six months' probation, and required him to complete a parent counseling course. 10/ Mr. Powell successfully completed the course in December 1996 and was released early from probation on January 8, 1997. In August 1996, Mr. Powell was transferred from Jose Marti Middle School to JFK Middle School, where Raymond Fontana was principal. In a letter dated August 1, 1996, Seth A. Levine, an assistant state attorney in Broward County, Florida, notified the superintendent of the Miami-Dade County public school system that Mr. Powell had been tried on the charge of child abuse, and he advised the superintendent of the resolution of the case. The letter was forwarded to James E. Monroe, who was at the time an Executive Director in the School Board's Office of Professional Standards, who reviewed the letter and transmitted the information contained therein to Mr. Fontana at JFK Middle School and to the state Department of Education Educational Practices Services. Mr. Monroe was not aware of the November 1995 incident involving Mr. Powell and his son until on or about August 14, 1996, when he received the copy of Mr. Levine's letter. In a letter dated October 10, 1996, the Education Practices Services notified Mr. Powell that it had received a complaint against him related to the charges of child abuse, and an investigation was begun which led to the filing of the original Administrative Complaint dated January 21, 1997. The disciplinary action taken against Mr. Powell by the School Board with respect to the child abuse charges consisted of a Site Disposition in the case, which the School Board referred to as Case No. A-17734. In a memorandum to Mr. Powell dated October 15, 1996, Mr. Fontana summarized the substance of a conference which was held on October 15, 1996, with Mr. Powell, Mr. Fontana, and William McCard, an assistant principal at JFK Middle School, in attendance. In the memorandum, Mr. Fontana indicated that "[t]he purpose of the conference was to establish a final disposition through administrative review of the above indicated case." Mr. Fontana further stated: Upon review of all the records and talking with you, it is determined that the incident in question happened in Broward County, no adjudication of guilt was established, and legally the case was closed. However, you have agreed to counseling in order to forestall any future problems. The case in question dealt with your own family member and alleged child abuse. We reviewed my expectations of you in regards to your teaching position at John F. Kennedy Middle School and your professional treatment of all your students. We reviewed the State Code of Ethics guidelines dealing with the same subject. Thus, I am directing you to follow the established State Code of Ethics Rules, School Board Policy, and Site Rules dealing with conduct becoming a teacher and subsequent teaching relationships with students. I feel that this will adequately bring closure to this incident and that in the future your teaching behavior will always be of the highest professional standard. In his annual evaluation for the 1995-1996 school year, Mr. Powell was rated "acceptable" in both classroom performance and in professional responsibility, and he was recommended for continued employment. Likewise, in his annual evaluation for the 1996-1997 school year, Mr. Powell was assessed "acceptable" in both classroom performance and in professional responsibility, and he was recommended for continued employment. This annual evaluation followed a Teacher Assessment and Development System Post-Observation Report completed on April 16, 1997, by Mr. McCard, in which he found that Mr. Powell's performance satisfied every indicator subject to evaluation. 11/ November 1997 incident On November 25, 1997, Mr. Powell was the teacher in charge of the School Center for Special Instruction ("SCSI") at JFK Middle School. The SCSI is an indoor suspension program for children who are being disciplined for behavior violations; SCSI is an alternative to sending these children home for the duration of their suspension. The SCSI class was held in the school cafeteria at JFK Middle School from 9:00 a.m. until the end of the school day at 3:40 p.m. Two sets of double doors provide access to the cafeteria. One set, those on the right, were locked from the outside and not normally used; the students entered and left the cafeteria by the set of doors on the left of the building. At approximately 3:20 p.m. on November 25, 1997, the SCSI students were returning to the cafeteria after cleaning up an area outside the cafeteria. Mr. Powell was outside supervising the students as they returned to the cafeteria, and there was no adult supervising the students who had already moved inside the cafeteria. During this hiatus, a seventh-grade student named M. M. got into an altercation with several other boys in the class whom he suspected of taking his book bag. The boys began pushing and shoving M. M. and encouraging him to fight with one specific boy. M. M. refused to fight; he became angry and upset and left the cafeteria by way of the set of double doors on the right side of the cafeteria. Because he was angry and upset, M. M. pushed the door open quite forcefully. Mr. Powell had had surgery on his right foot the previous day; his foot was in a cast, and he used a cane to assist him in walking. At the time M. M. pushed open the cafeteria door, Mr. Powell was standing outside directly in the path of the door as it opened. M. M. could not see Mr. Powell because there were no windows in the door. As it swung open, the door hit Mr. Powell's injured foot, and Mr. Powell raised his cane and struck M. M. on his right arm. 12/ M. M. ran back inside the cafeteria, in tears. He rushed through the cafeteria and exited through the set of doors on the left side of the cafeteria. He went directly to the office of Sandra Clarke, one of the guidance counselors at JFK Middle School. When he arrived at her office, M. M. was agitated and crying, and he told Ms. Clarke that Mr. Powell had hit him on the arm with his cane. M. M. showed Ms. Clarke the mark on his arm, which was located on the outside of his right arm, midway between his shoulder and his elbow. Ms. Clarke observed that M. M. had a red welt on his arm, and she took him to the office of Patrick Snay, who was at that time the principal of JFK Middle School. Mr. Snay called in Assistant Principal McCard and told him about the allegations M. M. had made against Mr. Powell. Mr. Snay directed Mr. McCard to call the school police and to take statements from the students in the class who witnessed the incident. Mr. McCard took a statement from M. M. and observed the red mark on his arm. A school security guard went into the SCSI class right before school ended for the day and asked that any students who had seen the incident involving Mr. Powell and M. M. stay after school and write a statement telling what they had seen. Several students remained and prepared statements. 13/ Mr. Powell reported for school the next morning but was told to report to the School Board's Region 2 office. Mr. Powell worked at that office for one day, and then, beginning on the Monday after Thanksgiving, he was assigned to work at Highland Oaks Middle School. He worked at that school until he was suspended by the School Board on May 13, 1998. His duties at Highland Oaks Middle School included taking care of disabled students, accompanying them to their classes and to lunch, sitting with them, and taking notes for them, all under the direct supervision of the school's media specialist. At the direction of James Monroe, who was at the time an Executive Director in the School Board's Office of Professional Practices, a personnel investigation was initiated on December 6, 1997, with respect to M. M.'s allegations against Mr. Powell. A preliminary personnel investigation report was submitted on February 13, 1998, in which the investigator concluded that the charge against Mr. Powell was substantiated. A Conference-for-the-Record was held on March 25, 1998, attended by Mr. Snay; John F. Gilbert, Director of Region 2; Ms. Falco, Mr. Powell's union representative; Dr. Monroe; and Mr. Powell. Several issues were discussed during the conference: Mr. Powell was allowed to review a copy of the School Board's investigative report regarding the incident involving M. M., and he was allowed to comment on the report. Mr. Powell denied having hit M. M. and advised the School Board personnel that he knew of an eye witness to the incident who would support his denial. Mr. Powell was also allowed to review a copy of the October 15, 1996, memo to Mr. Powell from Principal Fontana, discussed in paragraph 16, supra, memorializing the discipline imposed with respect to the charges that Mr. Powell had committed child abuse on his son. Dr. Monroe advised Mr. Powell that he had failed to comply with the directives included in that disposition. /14 During the Conference-for-the-Record, Mr. Powell was told that a recommendation would be made to the School Board that his professional services contract not be renewed and that a decision would be made whether to take disciplinary measures against him, which could include suspension or dismissal. In a letter dated April 29, 1998, the Superintendent of Schools recommended to the School Board that Mr. Powell be suspended from his position as a teacher and that dismissal proceedings be initiated against him. The School Board accepted this recommendation on May 13, 1998. On October 29, 1998, Mr. Powell was tried by a jury on the criminal charge of battery arising out of his striking M. M. A number of students testified at the trial, and Mr. Powell was found "not guilty" of the charge. On September 5, 1997, Mr. Powell was honored by the Florida House of Representatives with a Certificate of Appreciation for "his contributions and accomplishments in the National Association of Black Scuba Divers." As a member of that association, Mr. Powell was recognized and commended for his work with the sunken slave ship Henrietta Marie and for his lectures and seminars on the history of this ship. On May 28, 1998, an article about the Certificate of Appreciation appeared in The Miami Times, together with a picture of Mr. Powell and Representative Larcenia Bullard. Nowhere in the certificate or in the news article is Mr. Powell identified as a teacher or former teacher in the Miami-Dade County public schools. Mr. Powell is mentioned and quoted in an article which was published in the South Florida edition of the Sunday Sun Sentinel newspaper on February 1, 1998. The article discussed the celebration of Black History Month by the descendants of slaves who are living in South Florida. Mr. Powell is identified in the article as the person who led members of the National Association of Black Scuba Divers in a dive to the site of the Henrietta Marie. Mr. Powell also gave a lecture on the Henrietta Marie in February 1997 at the Miami-Dade County Community College, as part of a special African-American history course. Summary The evidence presented herein clearly and convincingly establishes that Mr. Powell struck and kicked his son on November 19, 1995, and that he struck M. M. with his cane on November 25, 1997, while carrying out his duties as an SCSI teacher. Mr. Powell's testimony that he did not strike either his son or M. M. is rejected as not persuasive, as is the testimony of those witnesses who testified that Mr. Powell did not strike M. M. The evidence presented is sufficient to establish that Mr. Powell committed an act of gross immorality and of moral turpitude when he dragged his fourteen-year-old son from the passenger seat of his Ford Bronco, struck his son in the face twice, and kicked his son in the ribs at least once, causing him to suffer a split lip and bruised ribs. This act of violence is not only inconsistent with the public conscience, it is an act of serious misconduct which was in flagrant disregard of society's condemnation of violence against children. The seriousness of Mr. Powell's act is only exacerbated by the fact that he acted in anger. Although the evidence establishes that Mr. Powell committed an act of gross immorality, the only evidence offered regarding any notoriety arising from the November 1995 incident and from Mr. Powell's subsequent trial on the charges of child abuse is the testimony of Dr. Monroe. Dr. Monroe's testimony that there "was considerable notoriety via the print and the electronic media of Mr. Powell's action which resulted in his arrest" was not based on his personal knowledge but was based on information he received in August 1996 from an assistant state's attorney in Broward County. Dr. Monroe's testimony is not only hearsay unsupported by any other evidence in the record, it is not credible to prove that Mr. Powell's conduct was sufficiently notorious to cast him or the education profession into public disgrace or disrespect or to impair Mr. Powell's service in the community. Moreover, Mr. Powell presented evidence that, subsequent to the November 1995 incident, he was publicly recognized for his contributions to the community through his work with the slave ship Henrietta Marie. The evidence presented is also sufficient to establish that Mr. Powell committed an act of gross immorality and of moral turpitude with respect to the November 1997 incident involving M. M. When Mr. Powell lashed out at this student and struck him with a cane, albeit after the student pushed a door into his injured foot, he demonstrated a flagrant disregard of public morals and of society's condemnation of violence against children, and he committed an act that betrayed the special trust placed in teachers. However, there was no persuasive evidence presented to establish that Mr. Powell's conduct involving M. M. was sufficiently notorious to expose either Mr. Powell or the education profession to public disgrace or disrespect or that Mr. Powell's service in the community was impaired with respect to the November 1997 incident. The most the evidence demonstrates is that the school received inquiries from parents about the need for their children to give statements regarding the incident, but these inquiries do not rise to the level of notoriety. Furthermore, it would be inappropriate to infer notoriety and public disgrace and disrespect from the fact that Mr. Powell was tried and found not guilty of the charge of battery on M. M. The evidence presented is sufficient to establish that, with respect to the November 1997 incident in which Mr. Powell struck M. M. with his cane, Mr. Powell violated several provisions of the Code of Ethics of the Education Profession and of the Principles of Professional Conduct for the Education Profession in Florida because he did not exercise professional judgment; because he inflicted physical injury on M. M. rather than protecting him from such injury; and because he exposed M. M. to unnecessary embarrassment by striking him and causing him to cry in front of his fellow students in the SCSI class. There was, however, no persuasive direct evidence presented to establish that Mr. Powell's effectiveness as a teacher and an employee of the School Board was diminished as a result of the November 1997 incident. This direct evidence consisted solely of the opinion testimony of Dr. Monroe, which was conclusory and was based exclusively on information he obtained from Mr. Powell's records and from discussions with school administrative personnel charged with monitoring Mr. Powell's conduct and teaching performance. No parents or students or members of the community testified that Mr. Powell's effectiveness as a teacher and as an employee of the School Board was diminished as a result of this incident. Under the circumstances of this case, however, it can be inferred from the record as a whole that Mr. Powell's effectiveness as a School Board employee and as a teacher was seriously diminished as a result of the November 1997 incident. Mr. Powell stuck a student with a cane during school hours, and the incident was witnessed by a number of students, who were asked to testify both in this proceeding and in Mr. Powell's criminal trial. In addition, the allegations against Mr. Powell with respect to the November 1997 incident were of such a serious nature that it was necessary to relieve Mr. Powell of his teaching responsibilities and to transfer him from JFK Middle School to the Region 2 administrative offices and, from there, to another middle school in which his contact with students was closely supervised. Finally, the evidence presented is sufficient to establish that, with respect to the November 1997 incident in which he struck M. M. with his cane, Mr. Powell did not conduct himself in a manner which reflected credit on himself or on the school system, nor did his conduct conform to the highest professional standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that In DOAH Case NO. 97-5828, the Education Practices Commission enter a final order finding Richard V. Powell guilty of violating Section 231.28(1)(c) and (i), Florida Statutes, and revoking his teacher's certificate for a period of two years, followed by three years' probation, subject to reasonable conditions to be determined by the Commission; and In DOAH Case No. 98-2387, the School Board of Miami-Dade County, Florida, enter a final order finding Richard V. Powell guilty of misconduct in office pursuant to Section 231.36(1)(a) and (6)(a), Florida Statutes, and of violating School Board Rules 6Gx13-4A-1.21 and 6Gx13-4-1.08 and 4-1.09; sustaining his suspension; and dismissing him from employment as a teacher with the Miami-Dade County Public Schools. DONE AND ENTERED this 11th day of October, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1999.
The Issue Whether the challenged portions of Respondent's Manual of Administrative Personnel Procedures (MAPP), which is incorporated by reference in School Board Rule 6Gx13-4D-1.022 (specifically) that paragraph in subsection C-2 of the MAPP which references Section 231.29, Florida Statutes, and the following language in subsection C-8 of the MAPP, under Florida Principal Competency (FPC) No. 11: "The principal who has TACTICAL ADAPTABILITY: looks at problems as if there were no rules, then decides what to do to resolve the situation tactfully") are invalid exercises of delegated legislative authority, within the meaning of Chapter 120, Florida Statutes, for the reasons asserted by Petitioner. Whether Petitioner has standing, pursuant to Chapter 120, Florida Statutes, to challenge these provisions.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, including the parties' Pre-Hearing Stipulation,2 the following findings of fact are made: Respondent (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, pursuant to Article IX, Section IV, of the Florida Constitution, and Section 230.03, Florida Statutes. Petitioner is a resident of Miami-Dade County, Florida, and the parent of a child enrolled in the Miami-Dade County Public School System (MDCPS) as a ninth-grade student at Miami Killian Senior High School (Killian).3 Petitioner is currently serving as the parent representative on the Educational Excellence Council at Killian. As Petitioner states in her "resume" (Petitioner's Exhibit 18), she is "an advocate for better education," and, "as such . . . ha[s] participated in committees, written numerous research-based reports, attended countless School Board meetings,4 and testified at many public hearings." Over the years, when she has had concerns regarding practices or policies at her children's schools, she has made these concerns known to School Board administrators and School Board members. Petitioner is challenging, as an invalid exercise of delegated legislative authority as defined in Section 120.52(8), Florida Statutes, language found in parts of the School Site Administrator Performance Planning and Assessment System (PPAS), which is contained in section C of the Manual of Administrative Personnel Procedures (MAPP) and which, together with the remaining portions of the MAPP, is incorporated in, and made a part of, School Board Rule 6Gx13-4D-1.022. Subsection C-1 of the PPAS (which Petitioner is not challenging) sets forth the "[s]cope and [p]urpose" of the PPAS. It provides as follows: This section, effective with the 1998-1999 school year, sets forth the rules, regulations and procedures for the establishment, maintenance, and administration of the performance planning and assessment system applicable to school site managerial personnel. Subsection C-2 of the PPAS contains a "[s]tatement of [p]olicy." It provides as follows: The Miami-Dade County Public Schools Performance Planning and Assessment System was developed as an aid to improving the performance and developing the potential of every administrator. A performance plan mutually developed by the administrator and the supervisor consists of three major components: Developing plans directly linked to overall job functions as related to the job duties and responsibilities, school site target objectives, and/or major system objectives, as applicable. Improving job performance by reviewing past assessments and setting expectations for improvement or enhancement. Developing personal potential through emphasis on standards required for success and professional growth in the present job, as well as preparation for future career goals. In evaluating performance standards, the emphasis is placed on collecting data which indicate that the individual demonstrates or practices the performance standards established for the assigned position and the school site target objectives. The performance assessment procedures set forth herein shall be adhered to strictly. Administrators shall have their performance evaluated by their immediate supervisor (assessor) and their assessor's supervising administrator (reviewer) only. Formal assessments and evaluations placed in administrator's official personnel files shall be in compliance with the procedures and instruments of the Performance Planning and Assessment System. Administrators being appraised need to be aware of the rationale, intent and procedures of the performance assessment system in relation to their job assignment. Florida Department of Education Performance Assessment System guidelines: specify that a comprehensive performance assessment system is fair, equitable, and legally sound; establish procedures for the collection, retrieval and use of data to provide feedback to an individual, a team, and the system; provide data for recognizing high performance through a variety of means; consider the specific conditions of the site in establishing expectations; promote the growth and development of the individual and the continuous improvement of the organization; allocate time to plan, coach and counsel for higher performance; provide orientation on the system and skill development in observing, mentoring, coaching and counseling for those in and affected by the system. Administrators who manage the performance assessment system must have knowledge and skills that go far beyond an academic knowledge of the system. They must understand and be able to respond to evaluative data on the system. They must also be able to link the performance assessment system to the other components of the Comprehensive Human Resources Development System. Pursuant to Florida Statute 231.29, the system (district) must include a mechanism to give parents and teachers an opportunity to provide input into the administrators performance assessment, when appropriate. The district mechanisms include notification to parents of this provision printed on student report cards and notification to teachers of this provision through memorandum included in staff handbooks. [Underlining added.] Principals must ensure that all assistant principals are exposed to and/or have experience in the 19 Florida Principal Competencies and the five M-DCPS Technical Skills. There may be cases where an assistant principal may not be assigned to work with all of the competencies and all of the technical skills. However, all assistant principals must be exposed to these competencies and technical skills either through actual experience(s), or attendance at district sponsored workshops, or other professional growth activities. Petitioner is challenging the underlined language of subsection C-2 of the PPAS set forth above (Input Provision), which was added to School Board Rule 6Gx13-4D-1.022 (Rule) on or about November 7, 1997. Before amending the Rule to add the Input Provision, the School Board published a Notice of Intended Action (dated September 12, 1997), which read, in pertinent part, as follows: PURPOSE AND EFFECT: To amend Board Rule 6Gx13-4D-1.022, Manual of Administrative Personnel Procedures, by revising the document, Manual of Administrative Personnel Procedures (MAPP), which is incorporated by reference and is part of this rule, in order to be in compliance with new state legislation, Section 231.29 . . ., Florida Statute[s]. SUMMARY: The revised rule provides language describing the mechanism to be used in the District for giving parents and teachers input into administrative assessment as appropriate. . . . SPECIFIC AUTHORITY UNDER WHICH RULEMAKING IS AUTHORIZED: 230.22(2), F.S. LAW IMPLEMENTED, INTERPRETED, OR MADE SPECIFIC: 231.02; 231.0861; 231.087(1); 236.0811, F.S.; 6A-4.0083; 61-4.0084 FAC. In addition, the School Board placed an advertisement in the September 29, 1997, edition of the Miami Daily Business Review, which read, in pertinent part, as follows: NOTICE The School Board of Dade County, Florida, announces the following Board Rule action will be taken at its 1:00 p.m. meeting on: November 5, 1997 School Board Auditorium 1450 N. E. Second Avenue Miami, Florida 33132 To Amend: 6Gx13-4D-1.022, Manual of Administrative Personnel Procedures (MAPP), in order to be in compliance with new state legislation, Section 231.29 . . ., Florida Statutes[s]. Specific Authority: 230.22(2), F.S. Law Implemented, Interpreted, or Made Specific: 231.02; 231.0861; 231.087(1); 236.0811, F.S.; 6A-4.0083; 61-4.0084 FAC Although Section 231.29, Florida Statutes, was mentioned in the Input Provision, neither the "Specific Authority," nor the "Law Implemented, Interpreted or Made Specific" portions of the November 5, 1997, amended version of the Rule contained any reference to Section 231.29, Florida Statutes. It was not until the day after the October 21, 1998, School Board meeting (the last School Board meeting at which members of the School Board took action to amend the Rule) that Section 231.29, Florida Statutes, was added to the "Law Implemented, Interpreted or Made Specific" portion of the Rule. The addition was made, not by the members of the School Board, but by the School Board Clerk, Ileana Menendez, who believed that such action was authorized by School Board Rule 6Gx13-8C-1.061, which, at all times material to the instant case, has provided as follows: CORRECTION OF CERTAIN ERRORS IN RULES The Superintendent of Schools, as Secretary to the Board, shall have the authority to review the School Board Rules and when judged useful shall: Correct grammatical, typographical, and like errors not affecting the construction or meaning of the rules; Keep a record of corrections made pursuant to subsection 1; and Report to the Board any corrections made. Ms. Menendez reported the "correction" she had made to the Office of the School Board Attorney. The English version of the "notification to parents . . . printed on student report cards,"5 which is referred to in the Input Provision, reads as follows: FLORIDA LAW PROVIDES FOR PARENT INPUT ON TEACHER/ADMINISTRATOR PERFORMANCE, WHEN APPROPRIATE. FOR MORE INFORMATION, CONTACT THE SCHOOL, PRINCIPAL, OR THE REGION OFFICE. By providing such notification, the School Board alerts the parent to the parent's opportunity to provide (at any time the parent deems appropriate) information and opinion regarding an administrator's performance for consideration by those (specially-trained individuals) charged with the responsibility of evaluating the administrator's performance. The significance of the "19 Florida Principal Competencies" referred to in the paragraph immediately following the Input Provision is described in subsection C-7 of the PPAS, which reads as follows: PERFORMANCE CRITERIA In order to qualify for a rating Distinguished Performance Standards on the annual evaluation form, assessees must be rated Distinguished Performance Standards on 18 out of the 19 Florida Principal Competencies and rated as Distinguished Performance Standards on five out of the five M-DCPS Technical Skills, and on Performance Related to Job Targets. In order to qualify for a rating Commendable Performance Standards, assessees must be rated as Commendable Performance Standards on 17 out of the 19 Florida Principal Competencies and rated as Commendable Performance Standards on four out of the five M-DCPS Technical Skills. Performance Related to Job Targets must be at least 90% accomplished (C-8 through C-11). In order to qualify for a rating Competent Performance Standards, assessees must be rated as Competent Performance Standards on 16 out of the 19 Florida Principal Competencies and rated as Competent Performance Standards on three out of the five M-DCPS Technical Skills. Performance Related to Job Targets must be at least 80% accomplished (C-8 through C-11). Assessees not exhibiting the minimum number of indicators listed for each standard of the 19 Florida Principal Competencies and/or the five M-DCPS Technical Skills, and/or who have not met their Performance Related to Job Targets will receive an overall rating of Below Expectations on Performance Standards and will require a Professional Improvement Plan (C-8 through C-11). The "19 Florida Principal Competencies" are listed and explained in subsection C-8 of the PPAS. "Florida Principal Competency" (FPC) No. 11 is "tactical adaptability," which is described in subsection C-8 of the PPAS as follows: TACTICAL ADAPTABILITY is the ability to adapt one's interaction and behavior to fit the situation. (3 out of 4) DIMENSIONS: ADAPTABILITY: Maintaining effectiveness in varying environments, tasks, responsibilities or with people; FLEXIBILITY: Modifying behavior to reach a goal; INDIVIDUAL LEADERSHIP: Utilizing appropriate interpersonal styles to guide individuals to task accomplishment. The principal who has TACTICAL ADAPTABILITY: adopts roles of listener, facilitator and confronter as needed finds ways to get around policies and procedures which interfere with the school's goals looks at problems as if there are no rules, then decides what to do to resolve the situation tactfully understands how own behavior affects others and makes appropriate adjustments. Except for the language in numbered paragraph 11.2, which Petitioner is no longer challenging (as a result of the School Board's agreement to initiate action to replace it with other language agreeable to Petitioner6), the foregoing, including the language in numbered paragraph 11.3 (Paragraph 11.3), the validity of which (along with the Input Provision) Petitioner disputes, is a verbatim recital of language contained in the Florida Principal Competencies section of the Human Resources Management and Development System Guidelines in Florida's School Districts developed, after study and scientific research, by the Florida Council on Educational Management.
The Issue Whether Petitioner, Lake County School Board, had just cause to terminate Respondents for the reasons specified in the agency action letters dated April 17, 2018.
Findings Of Fact Petitioner, Lake County School Board, is the constitutional entity authorized to operate, control, and supervise the public schools within Lake County. See Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat. Petitioner is authorized to discipline instructional staff and other school employees. See § 1012.22(1)(f), Fla. Stat. Mr. Rosier has been employed at Groveland Elementary School (Groveland) in Lake County, Florida, for three years. During the 2016-2017 and 2017-2018 school years, Mr. Rosier was the Instructional Dean. One of Mr. Rosier’s duties was to assist teachers with students who have behavioral problems and liaison with parents of these students. Mr. Rosier also conducted in- school suspension of students. Mr. Rosier also had a contract supplement to assist with students who were on campus after school hours because they either missed the bus or were not picked up by their parent or guardian on time. Mr. Rosier assisted by keeping the student safe and contacting the emergency contact on file for the student to find a way to get the student home. Ms. Lassen has taught at Groveland for four years. She taught first grade during the 2016-2017 and 2017-2018 school years. Petitioner Lassen is an “inclusion teacher,” meaning her classroom is a combination of students receiving Exceptional Student Education (ESE) services and students with no need for services. Ms. Lassen has no special training in ESE services for children with behavioral challenges. ESE students in her classroom are “push in, pull out,” meaning an exceptional education teacher comes in to work with some of the students in the classroom, and other students are pulled out of the classroom to work with an exceptional education teacher. Ms. Lassen was not happy at Groveland. She enjoyed teaching and was passionate about her students achieving their learning potential. However, she was frustrated by what she saw as a lack of needed services for her ESE students. Ms. Lassen applied for a transfer during the 2016 school year, but the transfer was denied. During the 2017-2018 school year, Ms. Lassen had eleven ESE students in her classroom, four of whom had severe behavioral issues. Some of her students were violent, even trying to harm themselves. She found it stressful to corral children who were throwing things in the classroom, especially at other children, while trying to teach the required lessons. She often found herself dealing with parents who were upset about their ESE child being disciplined for their behaviors, or who were upset about the treatment of their child by an ESE student. To address these concerns, Ms. Lassen frequently met with Mr. Rosier. Toward the end of the 2017-2018 school year--in March 2018 particularly--they met roughly twice a week. The two met once in Mr. Rosier’s office and sometimes in the portable where Mr. Rosier conducted in-school suspension; however, they met most frequently in Ms. Lassen’s classroom. The meetings usually occurred around 4:00 p.m., after students were dismissed at 3:30 p.m. and Mr. Rosier’s after- school responsibilities ended. Ms. Lassen usually left the school between 4:15 p.m. and 4:30 p.m. to pick up her own children from school and daycare and take them to after-school activities. During the meetings, Ms. Lassen discussed with Mr. Rosier the behavioral challenges she faced with students in her classroom, as well as the issues with parents. Mr. Rosier had the responsibility to deal with parents, often conducting parent conferences to address issues arising in the classroom. Ms. Lassen and Mr. Rosier became friends, and occasionally discussed personal matters, in addition to classroom and parent issues. Sometimes Ms. Lassen would become emotional. Mr. Rosier assured her he would work to get the help the students needed. Kimberly Sneed was the Groveland Principal during the 2017-2018 school year. On April 2, 2018, Mr. Sneed entered Ms. Lassen’s classroom shortly after 4:00 p.m. Assistant Principal Joseph Mabry had suggested to Ms. Sneed that she should look into why Mr. Rosier was in Ms. Lassen’s classroom at that time. When Ms. Sneed arrived, she observed that the lights were turned off and the classroom was empty. She walked to the classroom supply closet, inserted her key, and opened the door, which opens inward. Just as she was pushing the door open, Ms. Lassen pulled the door open to exit the closet with her purse and supply bag in hand. Ms. Sneed did not try the closet door handle first to determine whether the closet was locked. She simply inserted the key in the lock and pushed open the door. She testified that she was not certain the closet door was actually locked. The closet light was off when Ms. Lassen opened the closet. Ms. Lassen testified that she had just switched the light off before opening the door to exit the closet. Ms. Sneed turned the light switch on as she entered the closet. Ms. Lassen was surprised to see Ms. Sneed and asked if she could help her find something. Ms. Sneed asked Ms. Lassen why she had been in a dark closet. How Ms. Lassen replied to Ms. Sneed’s question was a disputed issue. Ms. Lassen maintains she said, “Ms. Sneed, you don’t understand, all it was, it was just a kiss, a kiss on the cheek, nothing more.” Ms. Sneed maintains Ms. Lassen said, “We were only kissing, we weren’t doing anything, no sex or nothing.” Ms. Lassen promptly left to pick up her children. Ms. Sneed entered the closet and observed Mr. Rosier standing at the back of the L-shaped closet, with his back to the door. Mr. Rosier was fully clothed, but his shirt was untucked and his glasses were off. Ms. Sneed did not question Mr. Rosier. Instead she quipped sarcastically, “Really, Mr. Rosier? Really?” Mr. Rosier did not turn toward Ms. Sneed or otherwise respond to her immediately. As Ms. Sneed exited the closet and proceeded to leave the classroom, Mr. Rosier called after her and asked if he could talk with her in her office. What else Mr. Rosier said to Ms. Sneed at that time was also a disputed issue. Ms. Sneed testified that Mr. Rosier stated, “I’ll admit we were kissing, and it turned into touching, but nothing else.” Mr. Rosier was not certain what exactly he said, but admitted that he did use the word “kiss.” He testified that everything happened quickly. He was embarrassed and Ms. Sneed was angry. The following day, Ms. Sneed reported the incident to the School Board Employee Relations Supervisor Katherine Falcon. That same day, both Ms. Lassen and Mr. Rosier were interviewed separately by Ms. Falcon. Ms. Falcon drafted an interview questionnaire based solely on her telephone conversation with Ms. Sneed that morning. The questionnaire contained the following seven questions: For the record state your name. What is your current position? How long have you been in your current position? Yesterday, Ms. Sneed found you and another teacher in a locked dark closet. Can you explain? Is this the first time you have engaged in this activity on campus? Did you share any information about this incident with anyone else? Is there anything else you would like to say? Ms. Falcon asked the questions, and David Meyers, Employee Relations Manager, typed Respondents’ answers. Ms. Falcon printed the interview record on site and presented it to each respective Respondent to review and sign. The report states Ms. Lassen’s response to Question 4 as follows: The closet was unlocked. It is always unlocked. I just kissed him. It didn’t go any further. There was no touching or clothing off. Nothing exposed. Nothing like that has ever happened before. Yesterday was more, like a kiss goodbye. I was getting ready to leave and getting my stuff. He was standing by the door. He was standing by my filing cabinet. Nobody ever comes in there during the day. Sneed wanted to know what we were doing in there. We told her we were fooling around a little bit, kissing. Ms. Lassen signed her interview report without asking for clarifications or changes. Ms. Lassen testified that she did not review the interview report before signing, did not understand it to be any form of discipline, and was anxious to return to her classroom because her ESE students do not do well in her absence. At the final hearing, Ms. Lassen denied stating anything about “fooling around a little” with Mr. Rosier. In response to the same question, Mr. Rosier’s report states the following: The closet wasn’t locked. This teacher, Katie Lassen and I have become good friends. Yesterday we caught ourselves being too close, kissing, hugging . . . . We were first in the main classroom. When we began to kiss we went in the closet. There was a knock on the door. It was Ms. Sneed. My clothes were kind of wrangled. Mr. Rosier also signed his interview report without asking for clarifications or changes. At the final hearing, Mr. Rosier denied stating that he and Ms. Lassen were “kissing and hugging” or that “when we began to kiss we went into the closet.” As to his statement that “we caught ourselves becoming too close,” he testified that he meant they had begun discussing personal issues in addition to Ms. Lassen’s concerns with her ESE students. Ms. Lassen and Mr. Rosier testified as follows: they were discussing her concerns about a particular ESE student who was very disruptive and threatened to harm himself. Ms. Lassen was emotional. Ms. Lassen proceeded into the closet to get her things so she could leave to pick up her children and get them to after-school activities. Just inside the closet, Ms. Lassen broke down crying again. Mr. Rosier entered the closet, closing the door behind him (allegedly to keep anyone from seeing Ms. Lassen cry), put his hands on her shoulders and told her to get herself together and not let anyone see her crying when she left the school. She collected herself, thanked him, gave him a hug and they exchanged kisses on the cheek. Respondents’ stories at final hearing were nearly identical, a little too well-rehearsed, and differed too much from the spontaneous statements made at the time of the incident, to be credible. Based on the totality of the evidence, and inferences drawn therefrom, the undersigned finds as follows: Mr. Rosier was consoling Ms. Lassen and the two adults became caught up in the moment, giving in to an attraction born from an initial respectful working relationship. The encounter was brief and there is no credible evidence that Respondents did anything other than kiss each other. Both Respondents regret it and had no intention to continue anything other than a professional relationship. This incident occurred after school hours, sometime between 4:00 p.m. and 4:30 p.m. on April 2, 2018. The only students on campus were at an after-school care program in a different building across campus. No one witnessed Respondents kissing or entering the closet together. Only Ms. Sneed witnessed Respondents emerging from the closet. Both Respondents were terminated effective April 23, 2018. Administrative Charges The school board’s administrative complaints suffer from a lack of specificity. Both employees are charged with “engaging in sexual misconduct on the school campus with another school board employee which is considered Misconduct in Office,” in violation of the Principles of Professional Conduct for Educators (Principles). The administrative complaints do not charge Respondents with any specific date, time, or place of particular conduct which constitutes “sexual misconduct.”2/ Moreover, the School Board introduced no definition of sexual misconduct. The School Board inquired about some specific conduct during the Employee Relations interviews with Respondents. Ms. Falcon asked Respondents about being found together in a “locked dark closet.” The School Board failed to prove that the closet was either locked or dark while Respondents were in the closet. It appears the School Board bases its charge of Misconduct in Office, in part, on an allegation that the Respondents had “engaged in this activity on campus” on dates other than April 2, 2018. When Ms. Sneed went to Ms. Lassen’s room on April 2, 2018, she was acting upon a report that Mr. Rosier went to Ms. Lassen’s room every day at 4:00 p.m. There is no reliable evidence in the record to support a finding to that effect. The report that Mr. Rosier “went to Ms. Lassen’s classroom every day at 4:00,” was hearsay to the 4th degree,3/ without any non-hearsay corroborating evidence. Petitioner did not prove Respondents were ever together in a closet, much less a dark closet, on campus any date other than April 2, 2018. Finally, it appears the School Board bases its charges, in part, on an allegation that Mr. Rosier was not fulfilling his after-school duties because he was spending too much time with Ms. Lassen. To that point, Petitioner introduced testimony that on the Friday after spring break in March, Mr. Rosier was not to be found when the administration had to deal with a student who had either missed the bus or was not picked up on time. Ms. Sneed testified that Mr. Rosier came through the front office, observed the student there with herself and Mr. Mabry, and left through the front office. Ms. Sneed assumed Mr. Rosier had left for the day, but that when she left the school she saw his car in the parking lot. Mr. Rosier recalled that particular day, and testified that, as two administrators were attending to the student, he did not see the need for a third. He chose instead to keep his appointment with Ms. Lassen to discuss her difficult students. Petitioner did not prove that Mr. Rosier neglected either his after-school or any other duties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lake County School Board enter a final order dismissing the charges against Respondents Katie Lassen and Alan Rosier, and award back pay and benefits retroactive to April 23, 2018. DONE AND ENTERED this 3rd day of August, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 2018.
The Issue The issue is whether Respondent's behavior toward an assistant principal violated the prohibitions against misconduct in office, pursuant to Florida Administrative Code Rule 6A-5.056(2), and gross insubordination, pursuant to rule 6A-5.056(4), so as to constitute just cause for Respondent's dismissal, pursuant to section 1012.33(6)(a)2., Florida Statutes.
Findings Of Fact Petitioner has employed Respondent as a teacher since 2001. He has taught English at North Dade Middle School for the past nine years. For the 2015-16 school year, Respondent was supervised by principal Fabrice Laguerre and assistant principal Kayla Edwards. Following an observation of Respondent, Ms. Edwards submitted to the principal a report citing several teaching deficiencies. The principal, who is now a principal at another school, decided that Respondent was or might be in need of professional assistance in the form of a Performance Improvement Plan (PIP). Placing a teacher on a PIP requires the principal to provide Respondent with notice of a Support Dialogue Meeting. The record does not reveal whether the purpose of the Support Dialogue Meeting is to determine whether Respondent shall be placed on a PIP, to prepare the PIP, or to deliver an already- prepared PIP. Earlier, the principal had agreed with Respondent not to conduct any disciplinary meetings with Respondent without Respondent's union representative in attendance. Respondent wanted a witness to what might transpire during such a meeting, and the principal understood that this was the purpose of having a witness at each such meeting. Toward the end of the school day on December 15, 2015, the principal summoned Respondent to his office. Respondent did not know why he was being summoned to the principal's office. Respondent tried unsuccessfully to have the school's union representative in attendance, so Respondent reported to the principal's office without a representative. When Respondent arrived at the principal's office, he asked if he needed a union representative or other witness. The principal replied that Respondent could have a representative, but this meeting was merely to provide Respondent with notification of the "real" meeting, which was to be within 48 hours of delivery of the notice. The meeting to which the principal referred was a Support Dialogue Meeting. Despite the principal's assurance to the contrary, the December 15 contact seems to have involved more than merely delivering a notice of a Support Dialogue Meeting in a day or two. As the principal testified, as soon as Respondent entered the office, implicitly assenting to sufficient contact to receive the notice described by the principal, the principal invited Respondent to sit down at a table, at which Ms. Edwards was already seated. The mere delivery of a notice would not have required that Respondent take a seat and probably would not have required the attendance of Ms. Edwards, unless the principal wanted a witness to his delivery of the notice to Respondent. Still standing, Respondent read some papers in front of him on the table and correctly concluded that they reflected unfavorably on his teaching performance and the source of the information was Ms. Edwards. It is impossible to sort out exactly who said what at this juncture. Respondent testified that his first comment was that he could not attend the meeting without a witness, and Ms. Edwards replied, "boy, get in here, stop your drama, and sign these papers." The reference to "boy" is implausible. It seems unlikely that Ms. Edwards would have uttered such an insult and, if she had, it seems as unlikely that Respondent would have remained in the office after hearing this disrespectful appellation. Ms. Edwards may have spoken the remaining words, but they are inconsequential--direct and plainspoken, but not unprofessional or disrespectful. The principal testified more plausibly that Respondent looked up after examining the paperwork and announced that this better not be about his teaching because he had taught a "perfect" lesson to the class that Ms. Edwards had observed. The principal again invited Respondent to take a seat. Instead, Respondent characterized the PIP as part of a "witch hunt" and averred that Ms. Edwards did not know what she was doing when observing Respondent. This testimony of the principal is credited. Past observations of Respondent performed by other administrators were satisfactory. Respondent and Ms. Edwards appear to have had some difficulties in the past. Most importantly, as noted above, Respondent had good cause to doubt that the sole purpose of the December 15 meeting was to deliver a notice of a Support Dialogue Meeting. Even the Notice of Specific Charges characterizes the December 15 meeting as the Support Dialogue Meeting itself. Respondent thus could reasonably believe that he could still prevail upon the principal not to implement a PIP or to design a less-elaborate PIP. On these facts, in a meeting attended exclusively by himself, the principal, and Ms. Edwards, Respondent's questioning the qualifications of Ms. Edwards did not constitute just cause for any adverse employment action, as long as he did not do so in bad faith, and nothing in the record indicates that he did. The principal testified that Ms. Edwards refrained from insulting Respondent and, more specifically, said nothing about where he went to college. Ms. Edwards' testimony candidly does not bear out the principal's testimony on this point. Ms. Edwards testified that she and Respondent each inquired of the other where he or she went to college, implying an inferiority in the other's school of higher learning. However, the parties' "questions" as to academic pedigrees are found to have been intended as nothing more than mild insults--that is, slights--and, as such, insubstantial. The principal also testified that, during this exchange, Respondent pointed a finger at Ms. Edwards with a "relaxed hand." This testimony is credited, but any implication that such a gesture was intended or perceived as threatening is rejected. Respondent's gesture was for mild emphasis: textually, this emphasis would be expressed by underlining, not boldface. This marks the end of the portion of the December 15 incident alleged as proof of misconduct in office. Interestingly, the testimony of Ms. Edwards and the principal set forth in the preceding two paragraphs does not describe Respondent in terms suggesting any loss of composure, but rather in terms not inconsistent with an employee unapologetically advocating for himself. The principal next asked Ms. Edwards to make a copy of a document, which necessitated her leaving the office for a few moments. But even this seemingly innocuous act proved fraught. Returning, Ms. Edwards did not see Respondent standing behind the door, and, when she opened it, the door struck Respondent harmlessly. Trying to seize a potential advantage, Respondent, implying that the act had been intentional, asked the principal if he had seen what had happened. The principal sensibly replied that Ms. Edwards could not see Respondent through the solid door, and the bump was accidental. The principal then ushered Ms. Edwards and Respondent out of the office. Up to this point, there had been no other witnesses because the office door had been closed--or, as to the last matter, closing. Once the unhappy trio left the office, the principal and Ms. Edwards testified that Respondent "kept going after" Ms. Edwards, now loud enough for others to hear, and caused much embarrassment. Ms. Edwards added that she was crying. Even though not alleged as grounds for adverse employment action, from Petitioner's perspective, this testimony from the principal and Ms. Edwards is important because it could provide a basis for inferring an earlier lack of composure on Respondent's part. However, as assessed by the Administrative Law Judge, this testimony is important because it is untrue and undermines the credibility of the principal and Ms. Edwards as witnesses. Three independent witnesses to the exit of the edgy ternion from the principal's office uniformly portrayed Respondent as not agitated. The first of these witnesses was a secretary, who was in her office two doors down from the principal's office. The secretary heard absolutely nothing, even though she was close enough to hear anything that might have been said, even if not loudly. Her testimony is credited. Ms. Edwards approached Respondent to give him the papers that she had copied. Ms. Edwards testified that she did not want Respondent to see that she was crying, so she extended her arm out in Respondent's direction and released her grip. It is hard to understand how, with her eyes averted from Respondent, Ms. Edwards would have known if Respondent was looking at her to receive the papers. In her version, Ms. Edwards released the papers and, for whatever reason, Respondent did not grasp them before they fell to the floor. Ms. Edwards' testimony is not credited, except for the papers falling to the floor. For his part, Respondent testified that he was the one crying because Ms. Edwards employed a phrase that reminded him of his recently deceased mother. Based on the testimony of the three independent witnesses, which omits any mention of tears and, to varying degrees, is inconsistent with such emotion, the crying testimony of Ms. Edwards and Respondent is rejected as melodramatic embellishment. Respondent testified that Ms. Edwards thrust the papers into his chest, leading with her closed hand. This testimony, which is credited, is corroborated by two custodians who witnessed the attempted exchange. The exchange was attempted because everyone agrees that the papers fell to the ground where the principal gathered them up. One custodian testified that Ms. Edwards, who was visibly agitated, walked quickly up to Respondent and, without much force, pressed the papers into the chest of Respondent, who grinned in response. The other custodian testified that Ms. Edwards, with her hand leading, "very strongly" "snapped" the papers into Respondent's hands "and stomach area," but this custodian thought that the two of them were playing around. Despite minor discrepancies in their testimony, the three independent witnesses clearly establish that Respondent had not lost his composure. Based on the foregoing, Petitioner failed to prove misconduct in office. Specifically, Petitioner did not prove that Respondent failed to treat Ms. Edwards with dignity or exercised poor judgment by insulting her and objecting to her supervisory qualifications. Each party slighted the other's academic pedigree; this inconsequential lapse, committed in the presence of only the principal, did not render objectionable Respondent's behavior in the incident. His questioning of Ms. Edwards' qualifications to observe his teaching would raise a different factual issue if directed toward his students or even uttered in the presence of his students, but raising this issue with the principal was appropriate and raising it in the presence of Ms. Edwards, whom the principal had included in the meeting, was forthright and timely. Respondent raised this issue at what he might have reasonably assumed was his Support Dialogue Meeting--meaning that this might have been his last chance to avoid a PIP or at least avoid a more elaborate PIP. Petitioner failed to prove any aggression by Respondent--unwarranted or warranted--or that Respondent was intimidating, abusive, harassing, and offensive toward Ms. Edwards. Petitioner failed to prove that Respondent made malicious and untrue statements in defending this case. His testimony that Ms. Edwards referred to him as "boy" has been discredited, but the record fails to establish that this testimony was a knowing falsehood. Petitioner failed to prove that Respondent's effectiveness has been impaired by anything that he said or did in connection with the December 15 meeting. Petitioner has failed to prove that Respondent committed gross insubordination. As alleged in the Notice of Specific Charges, this count fails even to state a claim of gross insubordination under the rule for the reasons set forth in the Conclusions of Law.
Recommendation It is RECOMMENDED that Petitioner enter a final order dismissing the Notice of Specific Charges and reinstating Respondent with "back salary," as provided in section 1012.33(4)(c). DONE AND ENTERED this 2nd day of December, 2016, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 2nd day of December, 2016.
The Issue Whether Sharon V. Eaddy (Respondent) committed the acts alleged in the Notice of Specific Charges filed by the Miami-Dade County School Board (the School Board) on August 29, 2014, and whether the School Board has good cause to terminate Respondent’s employment as a paraprofessional.
Findings Of Fact At all times material hereto, the School Board has been the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. Campbell Drive Center is a public school in Miami-Dade County, Florida. During the 2013-2014 school year, the School Board employed Respondent as a paraprofessional pursuant to a professional service contract. At all times material hereto, Respondent’s employment was governed by the collective bargaining agreement between the School Board and the United Teachers of Dade, the rules and regulations of the School Board, and Florida law. The School Board assigned Respondent to a Pre-K special education classroom at Campbell Drive Center taught by Pascale Vilaire. Respondent has worked at Campbell Drive Center as a paraprofessional for 13 years. During the 2013-2014 school year, 14 special needs students were assigned to Ms. Vilaire’s classroom. Those students were between three and five years of age. L.H., a four-year-old boy who was described as being high functioning on the autism spectrum, was one of Ms. Vilaire’s students. L.H. had frequent temper tantrums during the 2013-2014 school year. Prior to the conduct at issue in this matter, Respondent had had no difficulty managing L.H.’s behavior. There was a conflict in the evidence as to the date the conduct at issue occurred. The undersigned finds that the conduct occurred April 9, 2014, based on the Incident Information admitted into evidence as Petitioner’s Exhibit 4, on the testimony of Yamile Aponte, and on the testimony of Grisel Gutierrez.1/ Ms. Aponte had a daughter in Ms. Vilaire’s class and often served as a parent-volunteer. Ms. Aponte was at Campbell Drive Center’s cafeteria on the morning of April 9, 2014. Present in the cafeteria were Ms. Vilaire, Respondent, some of Ms. Vilaire’s class (including L.H.) and students from other classes. When Ms. Aponte entered the cafeteria, L.H. was crying and hanging on to a trash bin. Ms. Vilaire was attending to another student. Respondent was trying to deal with L.H. to prevent him from tipping over the trash bin. Respondent led L.H. by the wrist back to a table where they sat together. Ms. Aponte approached them and offered L.H. a milk product referred to as a Pediasure. Because L.H. was allergic to milk, Respondent told Ms. Aponte that L.H. could not have the product. When Ms. Vilaire lined up her class to leave the cafeteria, L.H. threw a tantrum because he was still hungry. Ms. Aponte testified that Respondent grabbed L.H. by the wrist and pulled him up. Ms. Vilaire observed the entire interaction between L.H. and Respondent in the cafeteria. Ms. Vilaire did not witness anything she thought was inappropriate or caused her concern. Petitioner failed to establish that Respondent became physically aggressive toward L.H. in the cafeteria by dragging him across the floor or otherwise grabbing him inappropriately. Paragraph nine of the Notice of Specific Charges contains the allegation that while in the cafeteria, “Respondent forcefully grabbed L.H. and dragged him across the floor.” Petitioner did not prove those alleged facts. After the class finished in the cafeteria, the students lined up to go back to the classroom. Ms. Vilaire was at the front of the line, and Respondent was ten to fifteen feet behind at the end of the line with L.H. Ms. Aponte was part of the group going from the cafeteria to the classroom. During the walk back to the classroom, Ms. Vilaire did not see or hear anything between Respondent and L.H. she thought was inappropriate. She did not hear anything that diverted her attention to Respondent and L.H. At the time of the conduct at issue, Barbara Jackson, an experienced teacher, taught first grade at Campbell Drive Center. While Ms. Vilaire’s class was walking from the cafeteria to the classroom, Ms. Jackson had a brief conversation with Respondent about getting food for her class from McDonald’s. Ms. Jackson did not hear or see anything inappropriate between Respondent and L.H. After stopping to talk with Ms. Jackson, Respondent resumed walking to Ms. Vilaire’s classroom. L.H. continued to cry and attempted to pull away from Respondent. L.H. wanted to be the leader of the line, a position that is rotated among the class members. Ms. Vilaire led the other class members into the classroom while Ms. Aponte, Respondent, and L.H. were still outside. While still outside, they saw Grisel Gutierrez, a teacher at Campbell Drive Center. L.H. began to throw himself on the ground on top of his backpack. Ms. Aponte and Ms. Gutierrez saw Respondent grab L.H. forcefully by the arm and hit him on his shoulder with a slapping sound.2/ After Respondent returned L.H. to the classroom, L.H. tried to push over a bookcase containing books and toys. To prevent L.H. from pushing over the bookcase, Respondent grabbed L.H. by his hands and held them behind his back. Ms. Vilaire witnessed the interaction between Respondent and L.H. in the classroom and thought Respondent acted appropriately. Petitioner failed to establish that Respondent acted inappropriately towards L.H. while in the classroom. Ms. Aponte reported what she had seen to the school principal the day of the incident. Respondent learned that Ms. Aponte had complained against her the day of the incident. After school the day of the incident, Respondent angrily confronted Ms. Aponte and asked her why she had lied. Rounett Green, a security guard at Campbell Drive Center, stepped in to end the confrontation between Respondent and Ms. Aponte. There was no evidence that Respondent attempted to threaten Ms. Aponte. Respondent did not use inappropriate language towards Ms. Aponte. Respondent did not make physical contact with Ms. Aponte. L.H.’s mother heard about the alleged interactions between Respondent and L.H. When L.H. returned home after school, the mother examined L.H. and found no bruises or other unusual marks on L.H.’s body. At its regularly scheduled meeting on June 18, 2014, the School Board suspended Respondent’s employment and instituted these proceedings to terminate her employment.
Recommendation The following recommendations are 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 adopting the Findings of Fact and Conclusions of Law set forth in this Recommended Order. It is further RECOMMENDED that the final order terminate the employment of Sharon V. Eaddy. DONE AND ENTERED this 15th day of January, 2015, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 2015.
