The Issue The issue in this case is whether a district school board is entitled to terminate a teacher's employment for just cause based upon the allegation that he picked up an administrator and dropped her to the floor.
Findings Of Fact Introduction The Miami-Dade County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. Respondent Michael De Palo ("De Palo") is a teacher. He was employed in the Miami-Dade County Public School System from September 1999 until September 10, 2003, on which date the School Board suspended him without pay pending termination. At all times relevant to this case, De Palo was assigned to Miami Norland Senior High School ("Norland"), where he taught social studies. The School Board's preliminary decision to dismiss De Palo was based on an incident that occurred at Norland on January 23, 2003. De Palo is alleged to have committed at least a technical battery that day upon the person of Gladys Hudson, an Assistant Principal, in the presence of Benjamin Cowins, a school counselor. These three are the only individuals who have personal knowledge of the January 23, 2003, incident. De Palo, Ms. Hudson, and Mr. Cowins testified in person at the final hearing. Also, proof of some prior statements about the incident was introduced into evidence. The most reliable such proof, in terms of establishing what was actually said, consists of the signed, written statements of Ms. Hudson and Mr. Cowins, dated February 3, 2003, and January 27, 2003, respectively, as these documents contain the witness' own words. Ms. Hudson and Mr. Cowins also gave verbal accounts to Detective Hadley, the school police officer who investigated the incident. Detective Hadley recorded their statements in his March 5, 2003, Preliminary Personnel Investigation Report, which is in evidence. De Palo, too, made a brief oral statement about the matter to Detective Hadley, which statement is recounted in the investigative report. De Palo also gave an oral statement at a conference-for-the-record held on May 14, 2003, and this statement is set forth in a Summary of Conference-for-the-Record dated May 19, 2003, which is in evidence. The aforementioned writings memorializing the several witness' prior oral statements, having been prepared by (and thus filtered through) someone other than the witness himself or herself, do not necessarily capture the witness' actual words and therefore have been accorded relatively little weight, as compared with the testimony given under oath at hearing. Ms. Hudson and Mr. Cowins are largely in agreement as to what happened on January 23, 2003. Their version of the incident, however, conflicts irreconcilably with De Palo's on crucial points. After carefully reviewing the entire record and reflecting upon the respective impressions that each of the participant-eyewitnesses made on the undersigned at hearing, the fact-finder has determined that De Palo's testimony, for the most part, is more credible than that of Hudson/Cowins. To the extent any finding of material fact herein is inconsistent with the testimony of one witness or another, the finding reflects a rejection of all such inconsistent testimony in favor of evidence that the undersigned deemed to be more believable and hence entitled to greater weight. Material Historical Facts On the morning of January 23, 2003, Ms. Hudson and Mr. Cowins were standing and talking in the hallway outside the door to Mr. Cowins' office. De Palo approached the pair as he walked through the hallway on his way to the copy machine. The hallway where this encounter took place is narrow and does not afford sufficient space for three adults to pass by each other with ease. Consequently, Ms. Hudson, whose feet hurt almost every day due to preexisting conditions, requested that De Palo please take care not to step on her feet when he passed.2 This plea for caution was not given because De Palo had stepped on Ms. Hudson's feet in the past, or because De Palo was approaching in a manner that threatened to injure her feet, but rather because the passage was so narrow. (Ms. Hudson would have said the same thing to any colleague who happened down the hallway at that particular time.) In response to Ms. Hudson's entreaty, De Palo remarked that he would "sweep her off her feet" and help Ms. Hudson back to her office. De Palo, who was in good spirits at the time, made these comments in a lighthearted, even jovial manner. His demeanor was good-natured——not hostile, threatening, or menacing. De Palo proceeded to pick Ms. Hudson up. At this point, it is relevant to note that De Palo is a retired firefighter and paramedic who had returned to teaching after a 28-year career with the fire department. From his work experience, De Palo was familiar with body mechanics, and he knew how to lift and transport someone without injuring himself or the person being carried. To lift Ms. Hudson, De Palo placed one hand and arm on her back at around shoulder level, and another hand and arm under her legs, at the knees. Once he had her off the ground, De Palo held Ms. Hudson close to his body, more-or-less at his waist level, in a semi-reclining position, her head somewhat higher than her legs. (To envisage the way he held her, imagine the iconic picture of the groom carrying his bride across the threshold.3) Ms. Hudson is relatively small woman——she weighed approximately 110 pounds at the time of the incident——but nevertheless De Palo likely could not have lifted her as he did, the undersigned reasonably infers, without her cooperation or acquiescence. This is because, in order to pick her up, De Palo needed to set his own feet and arms, during which maneuvering—— which would have revealed his intentions——Ms. Hudson easily could have moved out of position (e.g. by stepping forward), had she objected to being lifted.4 There is no persuasive evidence, and thus it is not found, that De Palo grabbed Ms. Hudson and forcibly wrestled her into his arms to be lifted.5 Ms. Hudson did not protest or object when De Palo picked her up. Indeed, the persuasive evidence establishes that she said nothing at all. The undersigned finds that had she been physically or verbally resistant (which she was not), De Palo would have refrained from lifting Ms. Hudson off her feet. It is found as well that De Palo had no intent to harm Ms. Hudson in any way, including through the infliction of emotional distress. Rather, De Palo, the former fireman, believed that he was doing a good deed, in a playful manner. With Ms. Hudson in his arms, De Palo walked a short distance (15 feet or so) to her office, which is around a corner, and hence cannot be seen, from Mr. Cowins' office. Mr. Cowins did not follow along. The door to Ms. Hudson's office was open, and De Palo carried her into the room, where he set her down on her feet. De Palo did not drop Ms. Hudson onto the floor, nor did she fall down, and any evidence suggesting otherwise is explicitly rejected. De Palo bade Ms. Hudson a good day and left. The entire episode had lasted no more than 30 seconds. The next day, Ms. Hudson summoned De Palo to her office and told him that his lifting and carrying her had been inappropriate. De Palo agreed and apologized. At some point after January 23, 2003, Ms. Hudson filed a workers' compensation claim relating to the incident, during which, she maintained, her back had been hurt. Ms. Hudson remained off duty for about one month. While these particular facts are not disputed, the evidence in the record does not persuade the undersigned that Ms. Hudson was injured as a result of De Palo's actions on January 23, 2003.6 Ultimate Factual Determinations De Palo's conduct on January 23, 2003, did not entail threats, threatening behavior, or acts of violence. Therefore, De Palo did not violate School Board Rule 6Gx13-4-1.08, which proscribes violence in the workplace. De Palo's conduct on January 23, 2003, constituted horseplay. His spur-of-the-moment behavior, like most on-the- job tomfoolery, while foolish and inappropriate in hindsight, and certainly neither authorized nor praiseworthy, was nevertheless relatively harmless in the grand scheme. De Palo's actions for a half-minute that day were plainly out of place and unprofessional, but his conduct was not "unseemly"——an adjective that, as ordinarily used, denotes something offensive to good taste. Moreover, De Palo did not use abusive or profane language in the presence of Ms. Hudson and Mr. Cowins. Therefore, it is determined that De Palo did not violate School Board Rule 6Gx13-4A-1.21, which prohibits unseemly conduct and abusive or profane language. The School Board has not identified, and the undersigned has not located, a specific principle in Florida Administrative Code Rule 6B-1.006 (prescribing the Principles of Professional Conduct for the Education Profession in Florida) that clearly proscribes the conduct in which De Palo engaged on January 23, 2003. Accordingly, it is determined that De Palo is not guilty of misconduct in office, an offense defined in Florida Administrative Code Rule 6B-4.009(3). Finally, it is determined that De Palo's conduct was not so serious as to impair his effectiveness in the school system.
Conclusions The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes. In an administrative proceeding to dismiss a teacher, the school board, as the charging party, bears the burden of proving, by a preponderance of the evidence, each element of the charged offense(s). See McNeill v. Pinellas County School Bd., 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Sublett v. Sumter County School Bd., 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995). De Palo's guilt or innocence is a question of ultimate fact to be decided in the context of each alleged violation. McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995). II. In its Notice of Specific Charges served October 13, 2003, the School Board advanced three theories for De Palo's removal: Violence in the Workplace (Count I); Conduct Unbecoming a School Board Employee (Count II); and Misconduct in Office (Count III). Counts I and II are grounded in School Board Rules, namely School Board Rule 6Gx13-4-1.08 and School Board Rule 6Gx13-4A-1.21. These Rules, like all rules applicable to only one school district, are not published in the Florida Administrative Code. See § 120.55(1)(a)2., Fla. Stat. The School Board neither introduced copies of its Rules into evidence nor asked that official recognition be taken of them. Thus, although the undersigned thinks he knows the contents of these Rules, based on experience and access to DOAH's Recommended Orders, he does not have before him, in this record, the complete text of either Rule as offered during the hearing, where the accused party would have had opportunities to inspect and object to the admission or official recognition thereof. Though unlikely to be applauded on appeal, it is possibly within the undersigned's discretion to initiate the process, on his own motion, for taking official recognition of, or reopening the record to receive in evidence, the pertinent School Board Rules. See Collier Medical Center, Inc. v. State Dept. of Health and Rehabilitative Services, 462 So. 2d 83, 86 (Fla. 1st DCA 1985)(Allowing "a party to produce additional evidence after the conclusion of an administrative hearing below would set in motion a never-ending process of confrontation and cross-examination, rebuttal and surrebuttal evidence, a result not contemplated by the Administrative Procedures [sic] Act."). Such a process would entail (a) requesting copies of the Rules and (b) affording each party an opportunity to present information relevant to the propriety of supplementing the record in this manner. Cf. § 90.204, Fla. Stat. (setting forth the procedure for sua sponte taking judicial notice of a fact). The undersigned is disinclined to do this, however, believing it reasonable to insist that the School Board produce at hearing, without prompting, a complete copy of any unpublished rule upon which it relies——or suffer the consequence of failure. The ordinary consequence of failing properly to introduce a pertinent rule would be, of course, a determination that the School Board had failed to prove a violation of the rule——and that is what would happen here. The undersigned cannot ultimately determine that De Palo violated either School Board Rule 6Gx13-4-1.08 or School Board Rule 6Gx13-4A-1.21, regardless of what the other evidence might establish, unless he can examine the Rules in question. Thus, the undersigned's refusal to initiate a process for receiving these Rules into the record necessarily would be outcome determinative as to Counts I and II. It so happens in this case, however, that when the undersigned applies what he thinks the Rules in question provide to the historical facts as found above, ultimate determinations of innocence result. Thus, in this case, receiving the Rules would not change the outcome, assuming the Rules say what the undersigned believes they say. The question of whether to receive the Rules sua sponte will therefore be sidestepped. For the purposes of this Recommend Order, it will simply be assumed, for the sake of reaching the merits, that the Rules are properly before the undersigned.7 III. In this section, the three charged offenses will be examined one-by-one, putting aside momentarily the element of "resulting ineffectiveness," which, being common to all counts, will be addressed separately in the next section. For organizational convenience, the counts will be taken up in reverse order, starting with Count III. Misconduct in Office The School Board is authorized to terminate the employment of a teacher such as De Palo "only for just cause." See § 1012.33 (1)(a), Fla. Stat.; see also § 1012.33(6)(a), Fla. Stat. ("Any member of the instructional staff . . . may be suspended or dismissed at any time during the term of the contract for just cause[.]") The term "just cause” includes, but is not limited to, the following instances, as defined by rule of the State Board of Education: misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude. § 1012.33(1)(a), Fla. Stat. The term “misconduct in office” is defined in Florida Administrative Code Rule 6B-4.009, which prescribes the "criteria for suspension and dismissal of instructional personnel" and provides, in pertinent part, as follows: (3) Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, F.A.C., which is so serious as to impair the individual's effectiveness in the school system. The Code of Ethics of the Education Profession (adopted in Florida Administrative Code Rule 6B-1.001) and the Principles of Professional Conduct for the Education Profession in Florida (adopted in Florida Administrative Code Rule 6B- 1.006), which are incorporated in the definition of "misconduct in office," provide as follows: 6B-1.001 Code of Ethics of the Education Profession in Florida. The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, and the nurture of democratic citizenship. Essential to the achievement of these standards are the freedom to learn and to teach and the guarantee of equal opportunity for all. The educator’s primary professional concern will always be for the student and for the development of the student’s potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity. Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct. * * * 6B-1.006 Principles of Professional Conduct for the Education Profession in Florida. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida. Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator’s certificate, or the other penalties as provided by law. Obligation to the student requires that the individual: Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental and/or physical health and/or safety. Shall not unreasonably restrain a student from independent action in pursuit of learning. Shall not unreasonably deny a student access to diverse points of view. Shall not intentionally suppress or distort subject matter relevant to a student’s academic program. Shall not intentionally expose a student to unnecessary embarrassment or disparagement. Shall not intentionally violate or deny a student’s legal rights. Shall not harass or discriminate against any student on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition, sexual orientation, or social and family background and shall make reasonable effort to assure that each student is protected from harassment or discrimination. Shall not exploit a relationship with a student for personal gain or advantage. Shall keep in confidence personally identifiable information obtained in the course of professional service, unless disclosure serves professional purposes or is required by law. Obligation to the public requires that the individual: Shall take reasonable precautions to distinguish between personal views and those of any educational institution or organization with which the individual is affiliated. Shall not intentionally distort or misrepresent facts concerning an educational matter in direct or indirect public expression. Shall not use institutional privileges for personal gain or advantage. Shall accept no gratuity, gift, or favor that might influence professional judgment. Shall offer no gratuity, gift, or favor to obtain special advantages. Obligation to the profession of education requires that the individual: Shall maintain honesty in all professional dealings. Shall not on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition if otherwise qualified, or social and family background deny to a colleague professional benefits or advantages or participation in any professional organization. Shall not interfere with a colleague’s exercise of political or civil rights and responsibilities. Shall not engage in harassment or discriminatory conduct which unreasonably interferes with an individual’s performance of professional or work responsibilities or with the orderly processes of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment; and, further, shall make reasonable effort to assure that each individual is protected from such harassment or discrimination. Shall not make malicious or intentionally false statements about a colleague. Shall not use coercive means or promise special treatment to influence professional judgments of colleagues. Shall not misrepresent one’s own professional qualifications. Shall not submit fraudulent information on any document in connection with professional activities. Shall not make any fraudulent statement or fail to disclose a material fact in one’s own or another’s application for a professional position. Shall not withhold information regarding a position from an applicant or misrepresent an assignment or conditions of employment. Shall provide upon the request of the certificated individual a written statement of specific reason for recommendations that lead to the denial of increments, significant changes in employment, or termination of employment. Shall not assist entry into or continuance in the profession of any person known to be unqualified in accordance with these Principles of Professional Conduct for the Education Profession in Florida and other applicable Florida Statutes and State Board of Education Rules. Shall self-report within forty-eight (48) hours to appropriate authorities (as determined by district) any arrests/charges involving the abuse of a child or the sale and/or possession of a controlled substance. Such notice shall not be considered an admission of guilt nor shall such notice be admissible for any purpose in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory. In addition, shall self- report any conviction, finding of guilt, withholding of adjudication, commitment to a pretrial diversion program, or entering of a plea of guilty or Nolo Contendre for any criminal offense other than a minor traffic violation within forty-eight (48) hours after the final judgment. When handling sealed and expunged records disclosed under this rule, school districts shall comply with the confidentiality provisions of Sections 943.0585(4)(c) and 943.059(4)(c), Florida Statutes. Shall report to appropriate authorities any known allegation of a violation of the Florida School Code or State Board of Education Rules as defined in Section 231.28(1), Florida Statutes. Shall seek no reprisal against any individual who has reported any allegation of a violation of the Florida School Code or State Board of Education Rules as defined in Section 231.28(1), Florida Statutes. Shall comply with the conditions of an order of the Education Practices Commission imposing probation, imposing a fine, or restricting the authorized scope of practice. Shall, as the supervising administrator, cooperate with the Education Practices Commission in monitoring the probation of a subordinate. As shown by a careful reading of Rule 6B-4.009,8 the offense of misconduct in office consists of three elements: (1) A serious violation of a specific rule9 that (2) causes (3) an impairment of the employee's effectiveness in the school system. The second and third elements can be can be conflated, for ease of reference, into one component: "resulting ineffectiveness." A school board seeking to terminate an employee on the basis of misconduct in office must prove "each and every element of the charge." MacMillan v. Nassau County School Bd., 629 So. 2d 226 (Fla. 1st DCA 1993). Here, the School District did not allege or prove, nor has it argued, that De Palo violated a particular Principle of Professional Conduct. Further, none of the Principles appear, to the undersigned, to be obviously applicable to the situation at hand. Accordingly, it is concluded that the offence of misconduct in office has not been established. Conduct Unbecoming a School Board Employee The School Board grounded its charge of "conduct unbecoming a school board employee" on De Palo's alleged violation of School Board Rule 6Gx13-4A-1.21, which provides (the undersigned assumes) as follows: All persons employed by the School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the workplace is expressly prohibited. This particular offense is not one of the just causes enumerated in Section 1012.33(1)(a), Florida Statutes, although that statutory list, by its plain terms, is not intended to be exclusive. Yet, the doctrine of ejusdem generis10 requires that "conduct unbecoming" be treated as a species of misconduct in office, so that, to justify termination, a violation of School Board Rule 6Gx13-4A-1.21 must be "so serious as to impair the individual's effectiveness in the school system." See Miami- Dade County School Bd. v. Wallace, DOAH Case No. 00-4392, 2001 WL 335989, *12 (Fla.Div.Admin.Hrgs. Apr. 4, 2001), adopted in toto, May 16, 2001. This case does not involve allegations of abusive or profane language in the workplace. Thus, the question whether De Palo violated School Board Rule 6Gx13-4A-1.21 turns on whether his conduct was "unseemly." This is admittedly a fairly close question, made more difficult by the fact that the term "unseemly conduct," which is not defined in the Rule, has a kind of "I know it when I see it" quality. In view of the Rule's elasticity, it would be possible without straining to label De Palo's inappropriate behavior "unseemly." The word "unseemly," however, usually suggests inappropriateness manifesting indecency, bad taste, or poor form (e.g. a crude joke in mixed company), and while De Palo's conduct displayed a little of each, it was a lot more sophomoric than indecorous——a silly, rather than unseemly, prank. Thus, it is concluded, De Palo acted inappropriately but not in violation of School Board Rule 6Gx13-4A-1.21. Violence in the Workplace In Count I of its Notice of Specific Charges, the School Board accused De Palo of violating School Board Rule 6Gx13-4-1.08, which (apparently) provides in pertinent part: Nothing is more important to Dade County Public Schools (DCPS) than protecting the safety and security of its students and employees and promoting a violence-free work environment. Threats, threatening behavior, or acts of violence against students, employees, visitors, or other individuals by anyone on DCPS property will not be tolerated. Violations of this policy may lead to disciplinary action which includes dismissal, arrest, and/or prosecution. (Emphasis added.) The School Board neither alleged nor proved that De Palo engaged in "threats" or "threatening behavior." The questions at hand, therefore, are: (a) whether De Palo committed an act of violence against Ms. Hudson; and, if so, (b) whether the act was "so serious as to impair [De Palo's] effectiveness in the school system." Cf. Miami-Dade County School Bd. v. Wallace, DOAH Case No. 00-4392, 2001 WL 335989, *12 (Fla.Div.Admin.Hrgs. Apr. 4, 2001), adopted in toto, May 16, 2001. In support of its case, the School Board asserts (correctly, as far as it goes) that School Board Rule 6Gx13-4- 1.08 encompasses acts that constitute battery under the criminal law and tort law. From this premise, the School Board turns to statutes and cases dealing with battery, a wrong of which the essence is the intentional touching of another person against such person's will. As the School Board then points out, it is often not necessary, in making out a battery case, to prove that the offensive contact was actually harmful or even intended to cause harm. Thus, the School Board concludes, De Palo violated School Board Rule 6Gx13-4-1.08 because he intentionally touched Ms. Hudson against her will. The flaw in the School Board's logic is its casual equation of "acts of violence" (which the Rule proscribes) with "battery" (which the Rule does not mention). The fact is, although the two categories of misbehavior overlap to some extent, they are not synonymous. And significantly, of the two, "battery" is the broader, more inclusive class. The term "violence" is commonly understood to mean an "[u]njust or unwarranted exercise of force, usually with the accompaniment of vehemence, outrage, or fury." Black's Law Dictionary 1408 (5th ed. 1979). A battery——that is, an offensive or nonconsensual touching——can be committed with or without violence.11 Thus, while all or most acts of violence by one person against another constitute battery,12 all forms of battery clearly do not entail acts of violence.13 In this case, the evidence does not persuade the undersigned that De Palo committed an act of violence.14 De Palo, therefore, is not guilty of violating School Board Rule 6Gx13-4-1.08. IV. To terminate De Palo's employment, the School Board needed to show that his conduct not only violated a specific rule, but also that the violation was so serious as to impair his effectiveness in the school system. Although the School Board's failure to prove that De Palo violated a specific rule is reason enough to recommend against termination, the issue of resulting ineffectiveness will be discussed anyway, providing an alternative basis for decision. There was little, if any, direct evidence that De Palo's effectiveness in the school system was impaired as a result of the incident of January 23, 2003. On this issue, therefore, the Board must rely on inferences in aid of its proof. For the School Board to profit from an inference of resulting ineffectiveness, it must establish two things: (1) that the violation was not of a private immoral nature, and (2) that, on the basis of past experience as drawn from the fund of common knowledge, the violation would not, in the ordinary course of events, have failed to impair the individual's effectiveness in the school system. See Miami-Dade County School Bd. v. Wallace, DOAH Case No. 00-4392, 2001 WL 335989, *19 (Fla.Div.Admin.Hrgs. Apr. 4, 2001), adopted in toto, May 16, 2001. The allegations against De Palo do not involve misconduct of a private immoral nature, so the first condition is satisfied. The undersigned is not persuaded, however, that De Palo's carrying of Ms. Hudson back to her office could not have happened without impairing De Palo's effectiveness in the school system. Rather, taking into consideration all of the evidence in this case, it is determined that De Palo continued to be effective, notwithstanding the incident of January 23, 2003. Thus, while an inference of resulting ineffectiveness might be legally permissible under the circumstances of this case, such an inference is not factually justified and hence has not been drawn. Ultimately, therefore, the School Board failed to prove that De Palo's effectiveness in the school system was impaired by his conduct. For that independent reason, he must be found not guilty of the charges brought against him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order: (a) exonerating De Palo of all charges brought against him in this proceeding; (b) providing that De Palo be immediately reinstated to the position from which he was suspended without pay; and (c) awarding De Palo back salary, plus benefits, that accrued during the suspension period, together with interest thereon at the statutory rate. DONE AND ENTERED this 20th day of May, 2004, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 2004.
The Issue Whether Respondent committed the acts alleged in the Notice of Specific Charges filed October 11, 2010, and, if so, the discipline, if any, that should be imposed against Respondent's employment.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. At all times relevant to this proceeding, Respondent has been on an annual contract that is subject to a professional service contract and collective bargaining agreement between Miami-Dade County Public Schools (hereinafter "M-DCPS") and the United Teachers of Dade (hereinafter "the UTD Contract"), applicable Florida Statutes, applicable rules adopted by the Florida State Board of Education as set forth in the Florida Administrative Code, and Petitioner's adopted policies and procedures. Article XXI, Section 1.B(1)(a) of the UTD Contract provides that "Any member of the instructional staff may be suspended or dismissed at any time during the school year, provided that the charges against him/her are based upon Florida Statutes." Santa Clara Petitioner first employed Respondent as a classroom teacher beginning in 2004 and assigned him to teach fourth-grade math at Santa Clara Elementary School (Santa Clara). In May 2007, Petitioner's Civilian Investigative Unit (CIU) investigated an allegation that Respondent made verbal threats, using profane language, towards the principal at Santa Clara. Respondent was placed on alternate assignment at the Region 3 Office on May 3, 2007, pending the outcome of the case. The allegation was substantiated for violation of School Board Rule 6Gx13-4A-1.21 (Responsibilities and Duties). During a Conference for the Record, written directives were issued to Respondent. On November 1, 2007, Respondent was issued a written reprimand which contained the following directives: Please abide by Miami-Dade County Schools (M-DCPS) School Board Rules at all times, specifically, School Board Rule, 6Gx13-4A- 1.21 Responsibilities and Duties; School Board Rule, 6Gx13-4-1.08, Violence in the Workplace; and School Board Rule 6Gx13-4A- 1.23, Code of Ethics. Conduct yourself, both in your employment and in the community, in a manner that will reflect credit upon yourself and M-DCPS. The Education Practices Commission filed a complaint against Respondent based on the incident at Santa Clara. That complaint was settled with Respondent receiving an administrative fine in the amount of $500.00. As part of the settlement agreement, Respondent did not admit or deny the alleged facts of the Santa Clara incident. Turner Tech 2007-08 School Year Petitioner transferred Respondent to Turner Technical Senior High School (Turner Tech) in November 2007, where he taught math. There were no adverse incidents during the balance of the 2007-08 school year. Turner Tech 2008-09 School Year Valmarie Rhoden was the principal of Turner Tech during the 2008-09 school year and part of the 2009-10 school year. Phillipe Napoleon was an assistant principal at Turner Tech during the 2008-09 and 2009-10 school years.1 On November 18, 2008, one of Respondent's students told Respondent not to touch him and threatened to harm Respondent if he did so. Dr. Napoleon and Ms. Rhoden handled the situation for Respondent by giving the student two days of indoor suspension. Respondent became irate when he learned that the student was not to be more severely punished. After he learned of the student's punishment, Respondent yelled at Dr. Napoleon in the earshot of students and other school personnel. Respondent attempted to undermine Dr. Napoleon's authority. After that incident, Respondent and Dr. Napoleon had a very contentious relationship. On February 19, 2009, Ms. Rhoden issued Respondent a memorandum entitled "Responsibilities and Duties" along with the Board Rule for his review regarding his unprofessional behavior because he had made an unprofessional outburst during a faculty meeting that Ms. Rhoden conducted and because Respondent had made unprofessional comments to other administrators. That memorandum provided, in part, as follows: Please be reminded that it is your professional responsibility to conduct yourself in a manner that reflects credit upon yourself and the teaching profession. During the faculty meeting on Tuesday, February 17, 2009, you made an inappropriate comment and noise while I was addressing the faculty on the respect shown teachers at the North Central Regional Center Teacher of the Year Breakfast. On December 18, 2008, I met with you; Mr. Hoffman (Lead Steward); Ms. Meyers (Steward); Mr. Mantilla, Vice Principal; and Mr. Napoleon, Assistant Principal, to discuss a series of verbal altercations you had with these administrators. We discussed the importance of being professional and respectful when addressing administrators and students. Please be advised that your conduct is a violation of School Board Rule 6Gx13-4A-1.21 and is unacceptable. Please refrain from addressing others in a manner that may be deemed unprofessional. A copy of the Board Rule is attached for your review. If you need further clarification, please see me. Your cooperation is expected and appreciated. On April 27, 2009, Ms. Rhoden convened an Emergency Conference for the Record with Respondent to discuss reports of misconduct by Respondent during a UTD meeting that had occurred on April 23, 2009, and reports of inappropriate comments attributed to Respondent during a parent-teacher conference that occurred on April 24, 2009. Participants at the UTD meeting reported that Respondent became uncontrollable and made disparaging remarks against the union representative who conducted the meeting. Teachers reported to Ms. Rhoden that they left the meeting because they had become afraid of Respondent. The parent in the parent-teacher meeting reported that, in the presence of students, Respondent referred to Ms. Rhoden as a "bitch" and to administrators as "three blind mice." The parent reported that Respondent had said "screw" administrators. When Ms. Rhoden confronted Respondent about his behavior, he became enraged and engaged in an uncontrolled tirade. A Conference for the Record was conducted at the school on Monday, April 27, 2009, and Ms. Rhoden issued the following directives to Respondent: Adhere to all School Board rules, especially those related to Responsibilities and Duties. Adhere to the Code of Ethics. Conduct yourself in a professional manner at all times with all school personnel, parents and other stakeholders. Do not use profanity in the presence of students, faculty, staff and other stakeholders. Do not disrespect your administrators in your manner of speech or physical approach. Do not use provocative language towards administrators, students, staff, or other stakeholders. Respondent was the subject of a separate investigation based on an incident of misconduct that occurred on April 13, 2009, first in the hallway outside of Respondent's classroom and later in or near Dr. Napoleon's office. The incident that triggered Respondent the confrontations on April 13, 2009, occurred when Dr. Napoleon, while conducting routine observations of classrooms, noticed that a student in Respondent's classroom was wearing headphones. Dr. Napoleon entered Respondent's classroom and removed the headphones from the student. Respondent confronted Dr. Napoleon outside his classroom and said "how dare you come into my classroom and disrupt my classroom" in a "profoundly loud" manner in the hallway within earshot of school personnel and students. Later in the day, Respondent confronted Dr. Napoleon in the office area. Respondent was upset and became aggressive towards Dr. Napoleon when he demanded an explanation of a memorandum relating to the earlier confrontation that Dr. Napoleon had issued to him. Ernesto Mantilla, a vice-principal at Turner Tech, stepped between Respondent and Dr. Napoleon because of Respondent's aggressive, threatening behavior. Mr. Mantilla, who has military training, put himself in what he referred to as "harm's way" because he felt it necessary to de- escalate the situation. During that incident, Respondent told Dr. Napoleon that he was a "joke" and that he should leave the administration's efforts to Ms. Rhoden and Mr. Mantilla. Respondent threatened to tear up Dr. Napoleon's memorandum in front of Dr. Napoleon. Respondent asserted that his contract did not mandate him to be professional. He taunted Dr. Napoleon by telling him that if Dr. Napoleon was going to fire him, to just go ahead and do it so he can collect a check and stay home. Respondent refused to provide a statement during the course of that investigation stating that "it will take a year and a half to go through the process", and he would be resigning anyway at the end of the year. On May 14, 2009, Ms. Rhoden issued Respondent a letter of reprimand for his behavior on April 13, 2009, which directed him to immediately refrain from displaying unprofessional, confrontational behavior. The letter of reprimand also directed Respondent to stop using abusive and profane language in the performance of his assigned duties. Ms. Rhoden testified, credibly, that she and many of the staff members were afraid at times when Respondent "would go into his rage." His conduct "disrupted the environment" and impeded the workings of the school. Turner Tech 2009-10 School Year In September 2009, Dr. Napoleon conducted a training session for faculty at Turner Tech referred to as IPEGS training. Respondent was required to complete that training to maintain his teaching certification. Respondent left the room in which the training occurred and was absent for over half of the training session. Dr. Napoleon refused to award Respondent credit for the IPEGS training. Respondent became irate when told he would not be given credit and believed that Dr. Napoleon was harassing him. Ms. Rhoden retired in October 2009, and Lavette Hunter became the principal of Turner Tech. On or about October 19, 2009, Respondent replied to a co-worker's email and sent it to all employees sarcastically commenting on the teacher's updating of the school on his involvement with a student internship program. Respondent stated, "please, no more e-mails about your presence. You're wonderful. Feel better?" The teacher complained to Ms. Vidal, and when she discussed the concern with Respondent, he was very irate and said that he was "tired of this bullshit" and was leaving for the day. Respondent told her to find coverage for his class and left school. On October 26, 2009, Respondent went into Dr. Napoleon's office "ranting and raving" because he said that Dr. Napoleon was talking about him. During that meeting, Respondent asked Dr. Napoleon whether he had gotten to be an assistant principal as a result of affirmative action. When Dr. Napoleon asked him to leave his office, Respondent refused, stating that he was going to leave when he got ready to leave. He thereafter left. Dr. Napoleon believed that Respondent's comment was a racial slur and, on October 27, 2009, filed a complaint with the M-DCPS Office of Civil Rights, which triggered an investigation (the civil rights investigation). Dr. Napoleon is African- American, and Respondent is Caucasian. Respondent disrupted a faculty meeting conducted by Dr. Napoleon on October 27, 2009, and stormed out of the meeting causing his co-workers to feel uneasy and unsafe. Respondent got upset when Dr. Napoleon declined to interrupt his presentation to answer Respondent's question. Respondent was loud and disruptive (Dr. Napoleon described it as "ranting and raving"). Respondent made a threatening gesture towards Dr. Napoleon as he left the room. Dr. Napoleon testified, credibly, that Respondent's conduct undermined his authority to lead and to provide a safe learning environment for students and for teachers. On October 28, 2009, Ms. Vidal (an assistant principal at Turner Tech) met with Respondent. During the course of the meeting, Respondent expressed that he thought he was being harassed and that he viewed himself as a disgruntled employee. He then made an implied threat that students would suffer on the FCAT because of the manner in which he was being treated. Ms. Vidal was so disturbed by Respondent's comments that she felt that she immediately contacted her principal and put the incident in writing. Respondent was removed from the school effective November 5, 2009 and placed on alternate assignment during the course of the civil rights investigation. On his last day at his worksite, Ms. Vidal and a security guard escorted Respondent to his classroom so he could collect his belongings before he was escorted out of the building. While in the classroom, in the presence of students, Respondent made demeaning comments to Ms. Vidal and told her that she and Ms. Hunter were responsible because they had not protected him from Dr. Napoleon. Respondent's demeanor and his outbursts caused Ms. Vidal to fear for her safety. Based on Respondent's conduct in October and November 2009, Ms. Hunter made a finding that "Probable Cause" existed that Respondent had violation of School Board Rule, 6Gx13- 4A- 1.21, Responsibilities and Duties. A Conference for the Record was conducted by Ms. Hunter on January 5, 2010, and Respondent was directed to "refrain from using inappropriate actions [sic] during the work day" and was issued copies of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties, State Board of Education Rule 6B-1.001, FAC, and State Board of Education Rule 6B-1.006, FAC, The Code of Ethics and the Principles of Professional Conduct of the Education Profession. He was also issued a letter of reprimand. Respondent was warned that "noncompliance with this directive will necessitate further review for the imposition of additional disciplinary measures" and "any recurrences of the above infraction will result in further disciplinary action." The matter was referred to the Regional Office to for further review (the conduct investigation). Administrative Placement Respondent remained out on Administrative Placement pending the disposition of the conduct investigation and the civil rights investigation. On March 16, 2010, the School Board's Office of Civil Rights Compliance closed its civil rights investigation, concluding that "No Probable Cause" existed that a violation had occurred. During his administrative placement for the civil rights investigation, Respondent was assigned to his residence and was not working. As part of his administrative placement, Respondent was instructed to call the Region Office twice each day at specific times, once in the morning and once in the afternoon. If he failed to call-in as instructed, he would not be entitled to payment for that day. Respondent did not call either morning or afternoon on seven days on which he was assigned to his residence and not working. On four days he called in the morning, but not in the afternoon. Petitioner initially withheld pay from Respondent for 11 days, but later issued him pay for the four days on which he called in the morning, but not the afternoon. During his administrative placement, Respondent again began to exhibit abusive behavior by making numerous and repeated harassing telephone calls to administrative offices. On March 17, 2010, at 1:00 p.m., M-DCPS Region I Secretary Maria Rosemond received a phone call from Respondent. Respondent asked to speak to Mr. Richard Vidal, who is the administrative director of Region I. Ms. Rosemond told Respondent that Mr. Vidal was not in. Mr. Cohen again asked to speak to Mr. Vidal, and Ms. Rosemond told him he was not there. Respondent then said, "I know Vidal is there. Tell him I will be there in half an hour to get his fucking ass out." Respondent then hung up the phone. Ms. Rosemond was afraid that he was going to actually come to region and harm Mr. Vidal or others at the Region I office. An hour later, Respondent called again and asked to speak to Mr. Vidal. Ms. Rosemond transferred the call to Jennifer Andreu, Administrative Director, and Respondent explained that he was upset about a situation at Turner Tech. Ms. Andreu told Respondent that she would speak to the principal and rectify the problem. Respondent cursed at her and called her incompetent. On March 4, 2010, Respondent called Turner Tech demanding to speak to Ms. Hunter. When the phone call was transferred to Dr. Napoleon, Respondent yelled out, "Why the fuck did they transfer the call to you. I want to speak with Ms. Hunter, not you." When he spoke to Ms. Hunter, Respondent became irate and very loud. Ms. Hunter disconnected the line and never spoke to Respondent again (until the formal hearing). During the call, Respondent referred to Dr. Napoleon as an idiot and demanded that personnel at Turner Tech inform any caller asking about Respondent to respond by informing the caller that that he works at the Region I office. He further threatened that his lawyer would be calling and that the calls would be recorded. Respondent does not dispute his confrontations on the phone with numerous secretaries with whom he spoke. Respondent admitted to the admissibility and the accuracy of the written statements from those secretaries taken during the course of the investigation(s). Respondent believed that he should have been reinstated to the classroom at the conclusion of the civil rights investigation. Because the conduct investigation was still pending, it was not appropriate to place Respondent back into a classroom while the additional issues concerning his conduct were being reviewed. As such, Respondent remained out on alternate assignment pending the disposition of this new investigation. On April 22, 2010, Dr. Marinelli, the Region I superintendent, met with Respondent to discuss his employment status. They reviewed the disposition of the civil rights complaint and formally informed Respondent that a CIU investigation was being conducted regarding his alleged violations of School Board Rules and misconduct. During the meeting, Respondent referred to Dr. Marinelli as "dear," told her to be careful when reading and if she was nervous to relax, and tried to speak over her as she read the allegations of misconduct to him. He further goaded her by telling her that the complaint should have been filed by Mr. Vidal and to get with his attorney because she was getting bad advice. When Dr. Marinelli read the allegation to him, he said "let me see that paper". She discussed the terms and conditions of his administrative placement and advised him that the conduct investigation was a separate proceeding than the civil rights case. Respondent became increasingly agitated as Dr. Marinelli read him his terms and conditions, and then yelled "just give me those papers". When she handed him the papers, he tore them in pieces and said in a loud voice "this is garbage, you are the queen of garbage". Respondent told Dr. Marinelli, "you may be able to click your fingers and your husband may do what you say, but I don't have to do what you say. I'm not afraid of you." Police came into the room due to his loud and disruptive behavior. During the course of the conduct investigation, Respondent was interviewed by CIU investigators. During his interview, he told one of the investigators to just fire him already, and he called the investigators liars. He took out his cell phone and represented that he was on the phone with an attorney and that he was recording their meeting. He even fabricated that one investigator was physically attacking him. Due to his belligerent and aggressive conduct and his verbal tirade, the meeting was terminated and a police officer was summoned to escort him out. On June 8, 2010, CIU issued a report that concluded that "Probable Cause" existed that Respondent had violated School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties, 6Gx13-4A1.212, code of Ethics, and School Board Rule 6Gx13-4- 1.08, Violence in the Workplace. Before Respondent was administered disciplinary action as a result of the conduct investigation, he again engaged in additional misconduct toward Dr. Marinelli that led to a final investigation conducted by the School Police. On July 29, 2010, Dr. Marinelli received a phone call from Respondent wherein he was agitated and uttered profanity, including the "F" word, at her. He further yelled, "Don't think I'm afraid of you. What I'm afraid is if you would sit on me." That call was disconnected. He called again, and Dr. Marinelli took the call. Prior to her taking the call, Respondent had told a secretary that Dr. Marinelli could not hide behind a secretary. During that call Respondent continued to yell at Dr. Marinelli, stating "I dare you to do anything. You can't do anything to me." Dr. Marinelli told him to not call again, and he proceeded to call numerous times. When an investigator questioned Respondent during his investigation of the calls on July 29, 2010, Respondent told the investigator that he had called Dr. Marinelli a "fucking fat cow." That investigation was concluded with a finding of probable cause that Respondent had violated the rules cited in the Notice of Specific Charges. A Conference for the Record was held with Respondent on August 5, 2010, at the Office of Professional Standards. Following that conference, the superintendent of schools recommended to Petitioner that Respondent's employment be terminated. Petitioner, at its regularly scheduled meeting of September 7, 2010, took action to suspend and initiate dismissal proceedings against Respondent for just cause, including but not limited to, misconduct in office, gross insubordination, violence in the workplace, and violation of the School Board Rules cited in the Notice of Specific Charges. Petitioner followed all relevant procedures in prosecuting this disciplinary proceeding.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order sustain the suspension of Respondent's employment without pay and terminate that employment based on misconduct in office and gross insubordination. DONE AND ENTERED this 8th day of March, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 2011.
The Issue Whether just cause exists for Petitioner to suspend without pay and terminate Respondent’s employment as a teacher.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within St. Lucie County, Florida. At all times material hereto, Respondent was employed by the School Board as a music teacher at Manatee Academy K-8 School (“Manatee”), pursuant to a Professional Services Contract, issued in accordance with section 1012.33(3)(a), Florida Statutes. Respondent’s employment with the School Board as a teacher began in 2006. At all times material hereto, Respondent’s employment with the School Board was governed by Florida law and the School Board’s policies. Prior to the incidents giving rise to this proceeding, Respondent was not the subject of any discipline. She had received overall ratings of “Exceptional” or “Above Expectation” on her teaching evaluation forms. The incidents giving rise to this proceeding occurred on October 18 and 19, 2012, during the 2012-2013 school year. October 18 and 19 Respondent awoke around 6:00 a.m. on Thursday, October 18, 2012, and reported to work at Manatee. That afternoon, Respondent finished her work day at Manatee and left the school sometime after 3:15 p.m. After running some errands, Respondent arrived at her single-family residential home in Fort Pierce, sometime after 5:00 p.m. Respondent shared the home with her long-time boyfriend and fiancé, Dominic Madison (“Madison”). Madison was also a teacher employed by the School Board. At that time, Madison was a band director at a local high school. By the time Respondent got home, Madison had not yet returned home from his work day at the high school. Shortly after arriving home, Respondent sat down at her personal laptop computer to check e-mails and do some work. The computer was connected to the home’s wi-fi network. While working on the computer, Respondent discovered an unfamiliar icon and link to a file on the home network. The icon peaked Respondent’s interest. Upon clicking on the icon, a video opened with Madison’s face. Respondent then observed Madison and a white female engaged in sexual activity in a room inside their home.1/ While Respondent was unsure, it appeared that the female might be a former student of Madison’s who might also be a minor. As she continued watching the video, Respondent recognized the female as one of Madison’s 17-year-old students, K.M. After watching the video, Respondent was devastated, upset, angry, and unable to process what she saw. She called Madison at 6:36 p.m., to confront him about the video and confirm her suspicions that he, in fact, engaged in sexual activity with a minor student. They spoke for approximately 36 minutes. During the call, they argued, and Madison neither admitted nor denied engaging in sexual activity with K.M. By this point, Respondent was in tears and so upset and completely devastated that she experienced chest pains. After getting off the phone with Madison and while still at home, Respondent called her pastor, Theodore Sanders, for guidance. They spoke around 7:13 p.m., for approximately 14 minutes. Pastor Sanders knew Madison because his children had been members of the band at Madison’s high school. Pastor Sanders was shocked by Respondent’s allegation that Madison had engaged in sexual activity with a minor student. Due to the ramifications of such a “huge allegation,” Pastor Sanders was cautious and wanted to make sure that Respondent was certain about what she saw on the video. It is understandable that Respondent needed some period of time in which to process the situation, given that Madison was her fiancé; they had a long relationship together; and she observed Madison on her personal computer engaging in sexual activity with a minor student in their home. Sometime after 7:30 p.m., Respondent left the home. At 7:26 p.m., Respondent and Madison spoke again on the phone for approximately 38 minutes. Respondent and Pastor Sanders spoke again on the phone at 8:03 p.m. and 8:45 p.m., with such calls lasting one minute and 10 minutes, respectively. In the interim, Respondent spoke again on the phone with Madison for 43 minutes starting at 8:03 p.m. As a teacher, Respondent is a mandatory reporter of child abuse under sections 39.201(2)(a) and 1006.061(1), Florida Statutes. Respondent clearly understood that she had a mandatory obligation to report the sexual activity she saw on the video between Madison and K.M.2/ Respondent and Pastor Sanders discussed the need to report what Respondent saw. There was never any doubt that the abuse needed to be reported. Because of Respondent’s distraught emotional state at the time, they agreed that Pastor Sanders would make the call. Pastor Sanders told Respondent to get off the road and go home. Pastor Sanders then called “911” at some point after they got off the phone at 8:55 p.m., to report the abuse. At the hearing, Respondent acknowledged that there was almost a four-hour gap from when she first saw the video until the time that Pastor Sanders stated he was going to report the abuse. Respondent further acknowledged that prior to 8:55 p.m., she had never made a phone call to report the abuse to 911, DCF, or her principal. However, given that Respondent had just recently seen a video on her personal computer of her fiancé engaged in sexual activity with a minor female student in their home, it was understandable that Respondent needed time to process the situation. A less than four-hour delay from when Respondent first saw the video to Pastor Sanders’ call to 911 was immediate, and not an unreasonable delay given the unique facts of this case. Sometime before 10:00 p.m., Respondent returned to her residence. She saw Madison’s vehicle and assumed he was inside the home. According to Respondent, she knew the police were on their way. Respondent nevertheless entered the home, but she did not approach Madison in any manner. At approximately 10:00 p.m., two St. Lucie County Sheriff’s deputies arrived at the home and rang the doorbell at the front door. Madison answered the door, and was told by one of the deputies that they were there to talk to Respondent. The officer asked Respondent to step outside to speak with them and Madison was directed to step back. Madison then went back inside the home and closed the door behind him. One of the deputies remained at the front porch area while Respondent and the other deputy began to discuss what Respondent had seen on the video. At this point, one of the deputies requested to see the video so Respondent and the deputies proceeded to attempt to go back inside the front door. However, they discovered that Madison had locked the door behind him when he re-entered the home. By this point, no law enforcement officer had explored the perimeter of the home to determine whether there were any other entrances or exists from the home. Nor was Respondent asked by either deputy if there were any other entrances or exits from the home. Respondent began ringing the doorbell and knocking on the front door. In the midst of Respondent ringing the doorbell, knocking on the door, and receiving no response from Madison, the deputies asked Respondent, for the first time, if there were any guns in the home and any other entrances and exits. Respondent advised the deputies that there was a back door. Ultimately, it was determined that Madison had snuck out the back door of the home to elude law enforcement. Respondent gave the deputies permission to enter and search the home. They entered through the open back door. Once the house was cleared by the officers, Respondent and the officers went inside the home. Respondent was cooperative during the search of the home and she consented to allowing the officers to look at the computer. Respondent attempted to show one of the deputies what she saw on the computer, but nothing would come up. Ultimately, it was determined that Madison took the evidence with him when he fled the home. When officers went into the front office and wanted to collect some items belonging to Madison, Respondent told the officers that she would prefer if they got a search warrant. The officers obtained a search warrant and stayed all night searching the home until approximately 5:00 a.m. Respondent did not sleep or eat while the officers were at the home and she was visibly “shaken-up” and crying at times during the evening and early morning hours of October 19. Detective Wentz was at the home and spoke with Respondent throughout the night and early morning of October 19. At some point, Detective Wentz “flat out asked” Respondent if she knew where Madison was located. Respondent responded, indicating she did not know where he fled to. Detective Wentz made it clear to Respondent on multiple occasions during the evening of October 18 and early morning of October 19 that if she knew Madison’s whereabouts, she should let him know. Before he left the home on the morning of October 19, Detective Wentz reiterated to Respondent that she needed to contact law enforcement immediately if she had any information about Madison’s whereabouts. Respondent clearly understood this directive. At no time during the evening of October 18 and early morning of October 19 did Respondent ever volunteer information as to where she thought Madison might be. On the other hand, the persuasive and credible evidence adduced at hearing establishes that Respondent did not know of Madison’s whereabouts at any time during the evening of October 18 and early hours of October 19 after he fled the home. However, by 11:45 a.m., on October 19, Respondent discovered that Madison might be staying at the local Holiday Inn Express, based on information she received from Madison’s father. Respondent called the front desk of the hotel at 11:47 a.m. and 12:01 p.m., in an effort to confirm that Madison was indeed at the Holiday Inn. Respondent and Madison spoke at 12:09 p.m., at which time Respondent knew Madison was still at the hotel, about to check-out of the hotel. At no time between 11:47 a.m. and 1:39 p.m., did Respondent make any calls to law enforcement to let them know that Madison might be at the Holiday Inn. Master Deputy Horowitz was at Respondent’s home before 1:39 p.m. However, Respondent failed to inform Master Deputy Horowitz that Madison was at the Holiday Inn. Master Deputy Horowitz specifically asked Respondent if she knew where Madison was. Respondent responded, stating that she “did not know where his whereabouts were at the time.” Respondent spoke with Master Deputy Horowitz by telephone on two or three occasions later that afternoon. Respondent’s testimony that she told Master Deputy during one of these telephone conversations that Madison had been at the Holiday Inn is not credited and is rejected as unpersuasive. Later that afternoon, Respondent was transported to the Sheriff’s Office for an interview. During the interview, Respondent admitted she failed to inform law enforcement that Respondent had been staying at the Holiday Inn: DETECTIVE NORMAN: I know you’ve talked to several detectives throughout yesterday evening, last night, this morning, this afternoon. Probably seen more faces that you want to see. Here’s--here’s what we’re trying to figure out, where your fiancé is. Do you know where he is? MISS THOMAS: And I understand that. And like I told the officers that came to the home, it was information that was left out. And it truly was not intentional. I know the way it looked, intentionally, it made me look bad, but I honestly do not know where he is. At the time when I did speak to him, he told me that’s where he was, that he was leaving that location so I haven’t a clue. He hasn’t contacted me since the last time I spoke with him today. * * * And I mean, I’m disappointed because I made a mistake. I did. I omitted something that I didn’t realize at the time and I don’t know if it was, you know, just, you know, just did it just because I guess deep down I was maybe trying--you know, I don’t know why I didn’t say, “Oh yea, by the way this.” I don’t know why. That was so stupid. Petitioner’s Exhibit 12, pp. 5-7. Following the interview, Respondent was placed under arrest and charged with one felony count of failing to report child abuse in violation of sections 39.201(1)(b) and 39.205, Florida Statutes, and one felony count of being an accessory after the fact, in violation of section 777.03(1)(c), Florida Statutes. After Respondent was arrested, she was placed on temporary duty assignment at home with pay. On Monday, October 22, Respondent self-reported her arrest and the abuse of K.M. by Madison to her principal and the District. Subsequently, the State Attorney charged Respondent in the Nineteenth Judicial Circuit for the felony charges of failing to report child abuse in violation of sections 39.201(1)(b) and 39.205, and for the felony charge of being an accessory after the fact in violation of section 777.03(1)(c). The persuasive and credible evidence adduced at hearing establishes that Respondent did not call Madison while he was at the Holiday Inn Express to warn him so that he could elude arrest. Nevertheless, Respondent knew Madison was at the Holiday Inn at least by 12:09 p.m. on October 19, when she spoke to Madison on the telephone. Respondent failed to inform law enforcement that he was at the Holiday Inn, or that he had been at the Holiday Inn, until her interview at the Sheriff’s office later that afternoon just prior to her arrest. After a 23-hour manhunt, law enforcement officers found and arrested Madison at the Holiday Inn Express around 7:00 p.m. Respondent’s delay in informing law enforcement of Madison’s whereabouts or that he had been at the Holiday Inn Express delayed his arrest by at most, approximately seven hours. Notably, the video was discovered by Respondent, reported by Respondent to law enforcement, and Madison was arrested, within the span of approximately 25 or 26 hours. Ultimately, it was Respondent who identified the victims of Madison’s crimes. It was Respondent’s discovery of the video, her immediate reporting of the abuse, and her later identification of the victims, which led to Madison’s arrest and his conviction on all charges. The State Attorney charged Madison in the Nineteenth Judicial Circuit with 40 counts of criminal activity: 34 felony charges of sexual activity with a minor; five felony charges of sexual battery on a child in custodial relationship; and one felony charge of using a child in a sexual performance. On April 1, 2016, Madison was adjudicated guilty on five counts of sexual activity with a minor. Madison was sentenced to 15 years, consecutive, for each count. On August 7, 2013, Respondent pled no contest to both charges. On the plea form, Respondent checked section 25, which states: “I specifically believe the plea is in my best interest even though I am innocent of the charge, charges, or violations, or may have defenses to them.” After Madison was adjudicated guilty, all criminal charges against Respondent were Nolle Prossed. The persuasive and credible evidence adduced at hearing fails to establish that Respondent is guilty of misconduct in office in violation of Florida Administrative Code Rule 6A- 5.056(2)(d) or (e). The evidence does not establish that Respondent engaged in behavior that disrupted a student’s learning environment or reduced her ability or his or her colleagues’ ability to effectively perform duties. The persuasive and credible evidence adduced at hearing fails to establish that Respondent violated Florida Administrative Code Rule 6B-1.006(3)(a). The evidence does not establish that Respondent failed to make reasonable efforts to protect a student from conditions harmful to learning and/or to the student’s mental and/or physical health. Indeed, Respondent protected students from any further abuse by Madison. Respondent is responsible for Madison’s abuse of K.M. being brought to the attention of law enforcement immediately after she observed the video on her personal computer. Within about four hours after observing her fiancé engaging in sexual activity with a minor on her personal computer and processing the situation and speaking with her pastor, the matter was reported to 911, and law enforcement arrived at Respondent’s home. Madison was at the home when the deputies arrived. Notably, the deputies who arrived at Respondent’s home did not ask to speak with Madison first. Instead, they asked to speak with Respondent, and Respondent was asked to step outside the home. Madison, the alleged perpetrator of the sexual abuse, was ordered by one of the deputies to go back inside the home. Knowing full well that the suspect, Madison, went back inside the home through the front door, neither deputy undertook any efforts to determine whether Madison might have an escape route through another door. A perimeter was not established until after law enforcement officers discovered that Madison had fled the home. Respondent cooperated with law enforcement while they were at her home. She cooperated fully in the prosecution of Madison and she was instrumental in securing Madison’s criminal conviction for the abuse. Given the totality of the circumstances, Respondent’s failure to inform law enforcement during the afternoon of October 19 of Madison’s whereabouts at the Holiday Inn, which delayed the arrest of Madison by seven hours, at most, does not rise to the level of conduct sufficient to support a finding of guilt in violation of rule 6B-1.006(3)(a). The persuasive and credible evidence adduced at hearing fails to establish that Respondent violated rule 6B-1.006(3)(n). Respondent reported the abuse to appropriate authorities when Pastor Sanders called 911. She also reported the abuse to appropriate authorities when deputies arrived at her home. Respondent also self-reported the incident to her principal and the District on the following Monday, October 22. The persuasive and credible evidence adduced at hearing fails to establish that Respondent is guilty of immorality in violation of rule 6A-5.056(1). Insufficient credible and persuasive evidence was adduced at hearing to establish that Respondent engaged in conduct inconsistent with the standards of public conscience and good morals, and that the conduct was sufficiently notorious so as to disgrace or bring disrespect to Respondent or the teaching profession and impair Respondent’s service in the community. The persuasive and credible evidence adduced at hearing fails to establish that Respondent violated Policy 5.37(8)(a). Respondent “directly” reported her knowledge of Madison’s abuse of K.M. as required by the policy when Pastor Sanders called 911 within four hours of Respondent’s view of the video. The persuasive and credible evidence adduced at hearing fails to establish that Respondent violated Policy 6.301(3)(b). As to Policy 6.301(3)(b)(viii), Respondent did not engage in immoral conduct, nor was it shown that Respondent’s conduct was “indecent.” As to Policy 6.301(3)(b)(xxx), the School Board failed to prove that Respondent engaged in off-duty conduct that does not promote the good will and favorable attitude of the public toward the School District, its programs, and policies. In reaching this conclusion, it is notable that the School Board did not call any members of the public or any administrators, teachers, or other personnel as witnesses to support this claim. Moreover, the School Board does not argue in its proposed recommended order that it proved that Respondent violated Policy 6.301(3)(b)(xxx). Paragraphs 71 through 73 refer to another specific subdivision within Policy 6.301(3)(b), 6.301(3)(b)(viii). However, there is no specific argument that Respondent violated Policy 6.301(3)(b)(xxx). The persuasive and credible evidence adduced at hearing fails to establish that Respondent violated Policy 6.94(2)(a). As detailed above, Respondent reported the abuse when Pastor Sanders called 911. Respondent also reported the incident to the deputies when they arrived at her home shortly after Pastor Sanders called 911, and when she self-reported the abuse to her principal and the District on the following Monday, October 22.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Lucie County School Board enter a final order rescinding Respondent’s suspension without pay and termination, and reinstate her with back pay and benefits. DONE AND ENTERED this 23rd day of May, 2017, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 2017.
The Issue The issue in this case is whether there is just cause for Broward County School Board to suspend Lula Faison for 10 days without pay based upon the allegations made in its Administrative Complaint filed on October 11, 2017.
Findings Of Fact Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within Broward County. Art. IX, Fla. Const.; § 1001.32, Fla. Stat. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Faison was hired by the School Board on February 10, 2004. She started her employment with the School Board at Sunset Center School, an off-campus program at Smith Community Health, where she taught for approximately four years. She was employed pursuant to a professional services contract with Broward County. Faison is a certified Exceptional Student Education ("ESE") and English for Speakers of Other Languages ("ESOL") teacher. She has worked with Emotional/Behavioral Disability ("EBD")1/ students her whole career with Broward County. She started working for Pompano Beach Elementary School ("Pompano") during the 2010-2011 school year as an ESE teacher for EBD students. During her first two years at Pompano, she had fourth- and fifth-grade EBD students. During the 2015-2016 school year, Faison's classroom was mixed with 10 EBD students in grades kindergarten, first, second, and third, with ages ranging from six to 10 or 11. The younger kids mimicked the older students' behavior, and it was challenging for Faison to control the classroom. Faison's classroom had the highest rate of incidents compared to the other EBD classrooms in the cluster at Pompano. Faison had both a paraprofessional, Hunt, and a substitute teacher, Popov, to assist in her classroom to help bring order. Hunt was assigned to assist Faison in her classroom with point sheets, monitoring the children, helping isolate behaviors, as well as manage and teach students. A.J. was approximately nine years old when he joined the EBD program during the 2015-2016 school year. A.J. was an enjoyable kid, but had numerous behavioral episodes. He was very explosive and lacked a concern for safety. He had various home issues going on. Additionally, A.J. was also a runner2/ and he had nine elopements3/ from January to April 2016. Pompano's protocol for if a student elopes was that administration was notified; the elopement was communicated over the school walkie-talkie system to notify staff to be aware to look out for the student; once the student was located, the locator was to keep eyes on the student; and typically a separate individual went after the student while the other watched. Safety is always the priority in any elopement. Faison was trained in the elopement protocol and was familiar with its process. While at Pompano, Faison never had any difficulty implementing or dealing with elopement protocols. On April 18, 2017, Faison reported to work late. Upon her arrival, Hunt had written the morning activities on the board and was instructing her classroom. Soon thereafter, Popov arrived and Faison took her class out to the playground. Popov assisted Faison taking the students outside, but she only remained about five minutes and then left Faison alone with the students. When no one came out to assist Faison with the students on the playground, she decided to take the students back inside. At the time, A.J. was playing with sticks. Faison instructed A.J. to put the sticks down because he could not bring them inside. She encouraged him to put them under the bench to retrieve and play with later. A.J. refused to put the sticks down and wanted to bring them inside. Faison told A.J. to walk with her and he did. Faison walked the students inside from off the playground headed to her classroom and ran into Popov. Faison had Popov walk the kids the remainder of the way into Faison's classroom so that Faison could deal with A.J. and the sticks. Faison had been trained in Professional Crisis Management ("PCM"). She evaluated the situation with A.J. and she determined that the best behavioral technique and de- escalation strategy to get A.J. to comply and put the sticks down, was to ask Felix to assist with A.J. Felix had a good relationship with A.J. Previously, A.J. had responded well to Felix and Felix had been able to calm A.J. down. Faison did not want A.J. to hurt anyone with the sticks. Faison went to the TAB room4/ where Felix was assigned. A.J. still had the sticks and was behind Faison in the hallway when she approached Felix's classroom.5/ Faison opened the door to the TAB room and observed that Felix had several students in his room that he was supervising when Faison arrived and that Felix was the only adult present. Faison stood in the doorway and explained to Felix that A.J. was not listening to her. She wanted to see if Felix could assist her and get him to come inside the classroom without the sticks. Faison requested that Felix help her out and speak to A.J. Faison held the conversation with Felix at the TAB room door with her body halfway in the door and Felix standing in the doorway on the TAB room side. When Faison turned around to address A.J. in the hallway, he was not there. Felix never saw A.J. in the hallway. When Faison discovered A.J. was no longer in the hallway, she thought A.J. was outside of Felix's classroom and she made a reasonable request that Felix call him in through the side door of the TAB classroom. Felix did not indicate to Faison that he either agreed to or refused to assist with or go after A.J. Faison left the TAB room believing that Felix was going to get A.J., which was a mistake because Felix did not follow up with A.J., unbeknownst to Faison. Faison's actions of not following up and believing Felix had followed up with A.J. were an isolated incident of misjudgment. After their discussion, Faison returned to her classroom. Later that morning, Pompano's secretary put out an elopement call on the Pompano walkie-talkie system. Faison did not receive the call because she did not have a walkie-talkie on April 18, 2016. Felix heard the elopement call and walked outside of the door towards the parking lot and emerged near the entrance of the school. There, Felix saw A.J. with a stick by the school marquee near the outer boundary of the school on the far end of the school property. Hunt also heard the elopement call on the walkie- talkie and went outside to follow the Pompano elopement protocol. Felix and Hunt worked together. Felix went to the left and Hunt went to the right to encircle A.J. When A.J. noticed them, he took off running toward 13th Avenue. Hunt and Felix caught A.J. approximately a block away from the school at the intersection of Northeast 8th Street and Northeast 13th Avenue near the baseball field. Following elopement protocol, Felix and Hunt let the administration know by walkie-talkie that they had caught up to A.J. The resource officer arrived and put A.J. in the patrol car because A.J. was combative. Principal Larson also appeared at the scene to check and see if everything was fine. Afterwards, Larson discussed A.J.'s elopement with Felix and decided he needed to follow up with Faison to determine what happened with A.J. When A.J. was returned to campus, he went to the TAB room to cool down and to determine why he eloped. Faison was not aware that A.J. had eloped. She was taking her students to lunch alone,6/ midway through the hallway about to lead the kids into the cafeteria, when Larson caught up with her and made the reasonable request that she come to him to have a discussion. He wanted to discuss the A.J. incident. Faison told Larson no when he told her to step aside and talk with him. Larson addressed Faison twice more and requested that she come to him. Faison refused to approach or talk to Larson. The third time Larson requested that Faison come to him, he informed her that she was being insubordinate. Faison felt she should not have left the kids and responded by telling Larson "I've been insubordinate all year." She finished walking the kids to the cafeteria following Larson's instructions. Broward County School Board's Police Special Investigative Unit and Broward Sheriff's Child Protective Investigations Services investigated A.J.'s April 18, 2016, off- campus elopement. Onagoruwa investigated the incident within 24 hours, including interviewing A.J. and closed her case as non-substantiated because no physical harm occurred to A.J. While at Pompano, Faison's previous discipline included: a summary memo dated May 2, 2014, regarding IEP deadlines; a second summary memo for failure to complete IEPs on time dated May 2, 2015; a disciplinary memo dated October 27, 2015, for failure to adhere to IEP deadlines and verbal reprimand of November 3, 2015; a February 1, 2016, written reprimand following a pre-disciplinary hearing meeting for failure to submit lesson plans and a comprehensive behavior plan; and a second written reprimand dated March 16, 2016, for failing to complete third grade portfolios and insubordinate behavior of hanging up the phone on Larson and refusing to meet with him in his office. The March 16, 2016, written reprimand specifically warned Faison about insubordination and stated: [Y]ou received notification regarding your insubordinate behavior on February 22, 2016, when you hung up the pone on me after I asked you to come to my office for a meeting and on March 2, 2016 for refusing to meet with me for non-disciplinary reasons. * * * [Y]our gross insubordination [is] a serious breach of conduct that cannot be tolerated. Therefore, I am issuing you a written reprimand that is consistent with School Board Policy 4.9. Please be advised that any further failure on your part to perform to the standards established for the effective and productive performance of your job duties as a teacher will result in further disciplinary action, up to and including termination of your employment. Petitioner ultimately filed charges against Faison by Administrative Complaint dated October 11, 2017, that included charges of misconduct in office, incompetency, gross insubordination, willful neglect of duty, and violation of School Board Policy 4008. On November 7, 2017, the School Board took action to suspend Respondent for 10 days without pay. Respondent contested the reasons for suspension.
Recommendation Upon consideration of the Findings of Fact and the Conclusions of Law reached, it is RECOMMENDED that the Broward County School Board enter a final order rescinding the 10-day suspension with back pay. DONE AND ENTERED this 6th day of July, 2018, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 2018.
The Issue Whether Respondent, Joy Deal (Respondent or Ms. Deal), committed misconduct as alleged by the School Board of Sarasota County (School Board), and, if so, whether the School Board had just cause to terminate her employment.
Findings Of Fact The Parties and Personnel Petitioner is responsible for operating the public schools in the Sarasota County School District, including Sarasota High School (Sarasota High). The School Board is responsible for hiring, firing, and overseeing both instructional employees and non-instructional employees within Sarasota County, Florida. Respondent has been an employee the School Board for 22 years. She has worked as an administrative secretary, but relevant to these proceedings, Ms. Deal was employed at Sarasota High as an SSP-5 Attendance Clerk (Attendance Clerk).5 David Jones (Principal Jones) is Sarasota High's principal and has been employed by the School Board since 2005. He previously served as a math teacher, assistant principal, middle school principal, and principal of another high school. He became the principal at Sarasota High at the start of the 2016/2017 school year, replacing Jeffrey Hradek (Principal Hradek). Sarasota High's administrative team was made up of Principal Jones and numerous assistant principals. Both Ryan Chase and Becky Moyer served as assistant principals under Principal Jones during the 2016/2017, 2017/2018, and 2018/2019 school years. Principal Jones, Assistant Principal Chase, and Assistant Principal Moyer all supervised Respondent during these years at different times. Collective Bargaining Agreement (CBA) There is a Collective Bargaining Agreement (CBA) between the School Board and the Sarasota Classified, Teachers Association (SC/TA). Ms. Deal is a member of the SC/TA and subject to the CBA. Article XXI of the CBA (Disciplinary Actions) provides for progressive discipline, with termination of employment as the last step of the disciplinary process: Scope of Article This article covers actions involving oral and written warning, written reprimands, suspensions, demotions, dismissals, or reductions in grade or pay with prejudice. 5 "SSP-5" means Salary Schedule P-5. Disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by sufficient evidence which supports the recommended disciplinary action. All facts pertaining to a disciplinary action shall be developed as promptly as possible. Actions under this Article shall be promptly initiated after all the facts have been made known to the official responsible for taking the actions. * * * An employee whom disciplinary action is to be taken may appeal through the grievance procedure that proposal. An employee against whom action is to be taken under this Article shall have the right to review all of the information relied upon to support the proposed action and shall be given a copy upon request. The Union shall be provided with a copy of all correspondence that is related to the action of the employee the Union is representing. The employee and his/her representative shall be afforded reasonable amount of time to prepare and present appropriate responses to the proposed actions under this article, through Step One of the Grievance Process. This amount of time is to be mutually agreed upon by the parties. * * * Previous charges or actions that have been brought forth by the administration may be cited against employee if these previous acts are reasonably related to the existing charge. All previous charges or actions must have been shared with the employee. Progressive Discipline The discipline, dismissal, demotion, and suspension of any employee shall be for just cause. Where just cause warrants such action(s), an employee may be demoted, suspended, or dismissed upon recommendation of the immediate supervisor to the Superintendent of Schools. Except in cases that constitute a real immediate danger to the district or [sic] the other flagrant violation, progressive discipline shall be administered as follows: Verbal reprimand (written notation placed in site file). Written reprimand filed in personnel and site files. Suspension with or without pay. Dismissal. Sarasota High's administration utilized meetings known as "Weingarten hearings" to make factual findings that would determine whether discipline was warranted for an employee. Employees were provided notice of the allegations against them and allowed to bring counsel or union representation to the hearing.6 Ms. Deal's Job Description As her job title implies, Ms. Deal was responsible for maintaining attendance data and monitoring the comings and goings of students throughout the school day. Ms. Deal's job duties were listed in Board Policy 6.42, Job Description 11 for Attendance Clerk, and include: 6 Article XXI sets forth what is commonly referred to as "Weingarten" rights. See In NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975)(holding unionized employee has right to notice and union representation, in instances where member reasonably believes investigatory meetings, conferences, or interviews may result in disciplinary action). Communicate daily with a variety of parents and staff. Assist office staff with answering the telephone and greeting parents. * * * Provide a safe and secure workplace. Model and maintain high ethical standards. * * * (15) Maintain confidentiality regarding school matters. * * * Respond to inquiries and concerns in a timely manner. Follow all School Board policies, rules and regulations. Exhibit interpersonal skills to work as an effective team member. Demonstrate support for the School District and its goals and priorities. Perform other incidental tasks consistent with the goals and objectives of this position. As an Attendance Clerk, Ms. Deal had constant interactions with students and parents when they checked in or out of school. She was privy to the students' personal information because she was the school employee with whom parents would interact if they were picking or dropping off a child (outside of normal school start and stop times) for personal or medical reasons. The attendance desk, Ms. Deal's workspace, was in Sarasota High's front office. The front office also houses the school clinic and the office of the At-Risk Coordinator, Keri Gartland. To enter either the clinic or Ms. Gartland's office, staff and students would have to go through the front office. The clinic also has a sliding glass window looking into the front office. The front office had an "outside door" which was open to the public, and a "campus door" to the school grounds. Anyone coming to school after the start of the school day would have to come in the front office through the outside door, stop at the attendance desk to sign in, and go through the campus door to get to class. Students leaving the school before normal exiting times were required to stop by the attendance desk to sign out of school, or have their parent sign them out. Employment History School administrators utilized memorandums of instruction (MOI) as a non-disciplinary means of working with employees to improve job performance. Although MOIs are not disciplinary in nature, they are intended to be corrective tools to focus an employee's attention on certain guidelines and acceptable standards of conduct in response to performance or behavioral issues. Principal Hradek supervised Ms. Deal from 2003 through 2016. During this period, Ms. Deal received non-disciplinary MOIs from Principal Hradek and assistant principals outlining the need to improve her level of cooperation while working with others, stop gossiping, be more tactful, be more courteous to parents and students, be more patient with and respectful of others, and accept guidance from others regarding these issues. On August 25, 2010, Ms. Deal was issued an MOI with regard to ethical deficiencies. The MOI focused on the Principles of Professional Conduct of the Education Profession in Florida (the Principles) which, as explained below, require employees to take reasonable precautions to distinguish between personal views and those of the School Board, not intentionally distort or misrepresent facts concerning an educational matter in direct or indirect public expression, and not make malicious or intentionally false statements about another employee. In her 2010 evaluation, Ms. Deal was rated "Effective," " Needs Improvement," and " Not Effective." Specifically, the evaluation indicated that Respondent needed improvement accepting constructive criticism and that she needed to increase her ability to accept guidance. The evaluation also stated Ms. Deal was ineffective in the areas of "Cooperation" and "Personal Relationships." Ms. Deal was again reminded to "increase her level of cooperation working with others [and] decrease gossip." Regarding her personal relationships, she was told to "increase tact, courtesy to parents and students, patience and respect for others." At some point during his tenure, Principal Hradek relieved Ms. Deal of her attendance duties and moved her out of the front office into Building Ms. Deal's duties in this new area were to provide secretarial support to the assistant principals, the school resource officer, and the Exceptional Student Education (ESE) liaison. Neither Principal Hradek nor the School Board changed Respondent's SSP-5 Attendance Clerk designation, even though she was no longer performing the duties of that job. In this new role, Respondent had less contact with parents and students. Principal Hradek explained: I think in the role of an attendance clerk with all the public interaction that [Ms. Deal] had with families and various staff it was – that was her flaw. She wanted to talk about things other than her job responsibilities or elicit her opinions. So, moving her over to Building 14, she did a very good job with the special needs students. Ms. Deal had no disciplinary issues or MOIs for a number of years. Then, on August 20, 2015, Principal Hradek issued an MOI to Ms. Deal for having loud outbursts and making profane statements in front of students and staff while contesting new parking procedures. Respondent was again reminded of her ethical obligations and the Principles. When Principal Jones replaced Principal Hradek, Principal Jones made the decision to move Ms. Deal back to the attendance desk in the front office to perform the duties she was designated to do as Attendance Clerk. Shortly after resuming her position as Attendance Clerk, Respondent received an MOI from Principal Jones addressing numerous issues including: her failure to take consistent breaks throughout the day; her use and volume of musical devices during school hours; her verbal communications with colleagues, parents, and students; her failure to bring her concerns to administration instead of voicing them to others; and her need to collaborate with and receive approval from an administrator prior to changing office procedures and protocols. Respondent was reminded again to adhere to acceptable ethical standards and the Principles. On December 1, 2016, Principal Jones received a complaint from a parent complaining Ms. Deal had made an inappropriate comment to his or her child. The student, who suffers from a medical condition, was attempting to address school absences with Ms. Deal. Ms. Deal made rude, embarrassing, and inappropriate comments to the student, her brother, and two other students who were in the front office. The parent's complaint was corroborated by another student. Around the same time, the school administration received another complaint from a different parent regarding inappropriate comments to her child made by Ms. Deal regarding the child's illness. Ms. Deal questioned whether the student should be able to leave the school, and whether the student should be able to obtain work from his or her teachers. On February 1, 2017, as a result of these incidents and after following the proper procedures under the CBA, Assistant Principal Moyer issued Ms. Deal a verbal reprimand for unprofessional behavior. Respondent did not grieve this action. On September 25, 2017, the administration was informed that Respondent had made inappropriate statements regarding a student suffering a seizure to a parent who was signing out another student from school. On September 26, 2017, Respondent was involved in an incident in which she allegedly discussed and laughed at a student's medical issue with a teacher in the student's presence. Ms. Deal refused to allow the student to contact her parents to request a change of clothes needed due to a menstruation accident. Ms. Deal then demanded the student's parent call Ms. Deal even though the student informed Respondent that her parent did not speak English. Ms. Deal allegedly told the student that she did not care if her parents spoke Chinese or Spanish. She then proceeded to discuss the student's medical condition in front of another parent. After an investigation and following the procedures in the CBA, on October 5, 2017, Assistant Principal Chase issued a written reprimand to Ms. Deal for unprofessional behavior in connection with the September 25 and 26 incidents. Respondent did not grieve this action. On August 7, 2018, the administration received two reports from staff regarding inappropriate behavior by Ms. Deal during the distribution of locker assignments. Ms. Deal was frustrated with her computer and was disrespectful to fellow staff members. Ms. Deal also complained to students and parents about the computer and process for assigning lockers, and eventually left school early that day. After an investigation and following the procedures in the CBA, on September 18, 2018, Principal Jones recommended Ms. Deal be suspended for three days without pay for unprofessional behavior. Ms. Deal grieved the suspension. As a result, the suspension was reduced to two days. Ms. Deal did not further grieve or appeal the suspension. At the final hearing, Ms. Deal sought to relitigate the facts underlying these previous disciplinary actions and argued she accepted the discipline based on the faulty advice of her union representative. Ms. Deal presented no evidence contradicting the circumstances regarding these incidents and chose not to testify on her behalf. Even if she had presented such evidence, the time for appealing these previous steps of progressive discipline has passed. November 2, 2018 On November 2, 2018, Ms. Deal had an incident with a student, Johneshia Burks, in the front office (the Incident). The School Board presented no testimony from anyone who was in the front office at the time the Incident started. According to Ms. Deal's PRO, Ms. Burks entered the attendance office, told Ms. Deal that she was there to see Ms. Gartland, and asked Ms. Deal where Ms. Gartland was. Ms. Deal claims she replied, "she did not keep Ms. Gartland's schedule." (Resp. PRO, p.5, ¶8). In her PRO, Ms. Deal also claims she asked Ms. Burks for a hall pass, at which point, Ms. Burks got upset and started verbally attacking Ms. Deal. Ms. Deal also claims Ms. Burks became physically aggressive. (Resp. PRO, p.5, ¶8). Ms. Deal, however, did not testify and offered no credible evidence of the Incident. Although other evidence establishes they were both yelling, there is no evidence that Ms. Burks was physically aggressive or started the argument. Regardless, Denise Masi, the school's security aide and a former New York City police officer, testified as to what she witnessed that day. The undersigned finds Ms. Masi's testimony is unbiased, credible, and convincing; her testimony also is corroborated by various witness statements in the investigative file. Sometime between 11:00 a.m. and noon, Ms. Deal called Ms. Masi for assistance in the front office on the school-issued radio. Ms. Masi arrived at the front office entering from the campus door. She observed Ms. Burks on the side of the door yelling at Ms. Deal, and Ms. Deal behind her desk yelling at Ms. Burks. Although she did not understand what they were yelling about, she heard Ms. Deal yell "you can't stay in here. She has to go." Ms. Masi also observed that there were parents in the office. She also noticed the clinic nurse and assistant looked frightened behind the clinic's glass sliding window, which was closed. Ms. Masi tried to de-escalate the situation by asking Ms. Deal to "keep quiet" and stop yelling. Ms. Deal did not comply. Ms. Masi testified that Ms. Deal was not making it easy to calm everyone down. Realizing Ms. Deal was not going to stop yelling, Ms. Masi removed Ms. Burks from the front office. Ms. Masi assessed that Ms. Burks was waiting to see Ms. Gartland and remained with Ms. Burks. While in a breezeway between the front office and the administrative office, they encountered Ms. Gartland. Ms. Gartland returned to her office through the front office with Ms. Burks without incident. Ms. Masi then went back into the front office to check on the nurse and assistant. The nurse and assistant told Ms. Masi that, in response to hearing the yelling, they suggested to Ms. Deal that she call security and then they closed the glass window into the front office. During Ms. Masi's return to the front office, she observed Ms. Deal was still agitated and kept repeating that she was not Ms. Gartland's secretary. Ms. Masi was interviewed separately by Principal Jones and by Assistant Principal Chase regarding the Incident. Assistant Principal Chase also interviewed Ms. Burks, who gave him a written statement. Based on his conversations with Ms. Burks he learned that Ms. Gartland had requested Ms. Burks to come to her office but Ms. Gartland was not there when Ms. Burks arrived. Ms. Burks claimed Ms. Deal started yelling when she asked her about Ms. Gartland's whereabouts. As part of their investigation, both Principal Jones and Assistant Principal Chase reviewed a video of the Incident. The video had no audio. This video was not retained and was not offered into evidence at the final hearing. The undersigned finds that the testimony regarding what was in the video is not helpful in determining what happened between Ms. Deal and Ms. Burks. Ms. Deal did not testify. Instead, she offered the testimony of Madison Byrd (her daughter and a Sarasota High student), in an attempt to establish that Ms. Deal's actions during the Incident were justified and appropriate. Ms. Byrd claimed she was in the front office during the Incident. According to Ms. Byrd, Ms. Burks was the only person yelling and her mother did not say anything to Ms. Burks. Ms. Byrd admitted she walked into the front office "in the middle of the situation." She also heard the nurse ask Ms. Deal to call security. Ms. Byrd's testimony was subject to bias because of her familial and financial ties to Respondent. Ms. Byrd also indicated she disliked Ms. Burks because of something that happened in middle school. The undersigned finds, to the extent Ms. Byrd's testimony was inconsistent with Ms. Masi's testimony, Ms. Masi's testimony is more reliable and corroborated by other evidence. On November 15, 2018, Principal Jones met with Ms. Deal in a Weingarten meeting to address the Incident. During this meeting, Respondent took no personal responsibility, attempted to lay blame upon Ms. Burks, and denied yelling. Similarly, at the final hearing, Ms. Deal presented no evidence that she accepted some responsibility or that her behavior was appropriate and justified under the circumstances. On November 30, 2018, Principal Jones recommended termination of Respondent's employment based upon Ms. Deal's past disciplinary history for unprofessional conduct in the workplace and the Incident. At the final hearing, Ms. Deal attempted to impeach the School Board's witnesses by asking them if the administration told them to "keep an eye" on her or give written statements against her. There was no evidence anyone was asked to fabricate information about Ms. Deal. It is clear from the testimony and evidence at the hearing that Ms. Deal and Ms. Burks were involved in a shouting match in the front office that could be heard by other parents and staff. Regardless of who started the argument, Ms. Deal was the adult in the room. More importantly, as an Attendance Clerk, Ms. Deal was required to act professionally and according to School Board rules and regulations. Instead, she took no steps to de- escalate the situation, and refused to regain her composure even after being asked by Ms. Masi to do so.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED the School Board of Sarasota County terminate Joy Deal's employment. DONE AND ENTERED this 11th day of February, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S HETAL DESAI Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 2021. Joy L. Deal 4503 Hale Street Sarasota, Florida 34233 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Robert K. Robinson, Esquire Rob Robinson Attorney, P.A. Suite 400 500 South Washington Boulevard Sarasota, Florida 34236 Dr. Brennan Asplen, III, Superintendent Sarasota County School Board 1960 Landings Boulevard Sarasota, FL 34231-3365
The Issue Respondent's alleged violation of Monroe County District School Board Policy Rule 2.5.1 on or about January 8, 1976, by possession of marijuana on school grounds.
Findings Of Fact Respondent is a 16 year old, 11th grade high school student attending Marathon High School, Marathon, Florida. On January 8, 1976, Respondent was found in possession of 32 grams of marijuana on the grounds of Marathon High School. (Stipulation of the Parties) On April 21, 1976, the Circuit Court of Monroe County, Florida, accepted Respondent's plea of guilty to a charge of possession of marijuana, withheld adjudication as a delinquent and placed him on probation for a period of six months under the supervision of a Youth Counselor, State of Florida Youth Services Division. Conditions of probation included a curfew, weekly meetings with the counselor and part-time employment while attending school. (Testimony of Seale) At the time of his apprehension, Respondent admitted possession of marijuana to authorities and cooperated with them by divulging its source. Respondent denies any prior arrests and, in the opinion of the Youth Counselor, he is not likely to commit an offense of this nature in the future. He has evidenced remorse and desires to continue attendance at the high school. The Youth Counselor feels that it would serve no useful purpose to prevent him from further attendance. (Testimony of Seale, Collins) Respondent is not a problem student nor is he considered to be incorrigible or a socially maladjusted child. An alternative to expulsion exists at Marathon High School in the form of a rehabilitative program for socially maladjusted children that is supervised by one instructor who exercises close supervision over the students in the program. A student who is expelled from high school may enter an evening adult education program whereby he can acquire necessary academic credits by attending evening classes. The principal of Marathon High School recommends that Respondent be expelled because of the seriousness of his offense as evidenced by the unusually large amount of marijuana. (Testimony of Gradick)
Recommendation That Respondent, Gordon Collins, be expelled from Marathon High School, Marathon, Florida, effective June 8, 1976, for violation of Monroe County District School Board Policy Rule 2.5.1, by possession of marijuana on the school grounds on or about January 8, 1976. DONE and ENTERED 14th day of May, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1976. COPIES FURNISHED: Glenn Archer, Jr. Assistant Superintendent Post Office Drawer 1430 Key West, Florida 33040 Peter Lenzi, Esquire Post Office Box 938 Marathon, Florida 33050
