The Issue The issue in this case is whether Respondent, Daniel Presmy, committed the violations alleged in the Recommendation for Suspension and Termination for Employment, and if so, what disciplinary action should be taken against him.
Findings Of Fact Daniel Presmy (hereinafter "Presmy" or "Respondent") has been a teacher for six years with Palm Beach County School Board (hereinafter "School Board"). He has always taught elementary students. Presmy has had no prior disciplinary action taken against him by the Superintendent of Palm Beach County School Board or the School Board. Presmy was a certified teacher in the School Board of Palm Beach County. On December 11, 2006, while in his classroom Presmy was teaching his third-grade class, and three students who were not students in his classroom showed up and disrupted the class. Presmy requested that the students leave his room. The students did not leave upon the initial request. One student informed Presmy that a student in the class had his eraser. Presmy then asked his class who had the eraser. Subsequently, an eraser flew to the front of the classroom and fell on the floor. Presmy picked up the eraser and handed the eraser to the student who had requested it. Presmy turned back to his class and was hit on the temple with the eraser. Presmy turned back around toward the student who he had given the eraser to and the student raised his hand. Again, Presmy told the student to leave. The student continued to stand in the middle of the doorway to Presmy's classroom and would not leave. While Presmy remained in his classroom, he used his fingertips to push the student's head and told the student (hereinafter "student victim") to "leave and don't come back here." Presmy "didn't think that [he] was doing anything wrong by telling him to leave with a gesture to leave." Presmy's reaction of touching the student was inappropriate. However, no evidence was demonstrated that the student was hurt during the incident. Presmy did not press the buzzer or contact and ask for any assistance regarding the incident because he didn't think it was necessary. On December 11, 2006, Officer Price was paged regarding the incident and she returned the call. She was informed that a student reported that he had been hit by a teacher at Roosevelt. Price interviewed the student victim and witnesses regarding the incident with Presmy. The School Board initiated an investigation into the incident. During the investigation, Respondent met with Detective Walton. Presmy told the investigator that he pushed the student victim in the head and told him to leave.2 The investigator concluded his investigation and presented the case to the State Attorney’s Office for review. As a result, Daniel Presmy was criminally charged with Battery as a violation of Florida Statutes. On August 2, 2007, Presmy pled guilty to the battery charge as a negotiated plea agreement so as not to put himself and his family through a lengthy trial and under the advice of his lawyer. His sentence was 45 hours community service, 12 weeks of anger management, 12 months of probation with early termination after six months and a $595 court fee. Petitioner alleges Respondent, by his conduct, violated School Board Policies 0.01, 1.013 and 3.12, and State Board of Education Rules 6B-1.001 and 6B-1.006. Subsequently, the School Board of West Palm Beach County at a meeting on October 24, 2007, voted to suspend Presmy without pay effective October 25, 2007, and initiated dismissal proceedings.
Recommendation Upon consideration of the Findings of Fact and the Conclusions of Law reached, it is RECOMMENDED that Palm Beach County School Board find Presmy had inappropriate physical contact with a student but apply the progressive disciplinary policy to determine his punishment. DONE AND ENTERED this 11th day of August, 2008, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 2008.
The Issue The issues in this case concern whether the Petitioner may lawfully terminate the Respondent's employment as a teacher by reason of alleged acts of misconduct set forth in an Administrative Complaint.
Findings Of Fact At all times material to this case, Ms. Engar Dennard (the Respondent) was employed as a teacher by the Palm Beach County School Board (the Petitioner). During the 1999/2000 school year, the Respondent was an Emotionally Handicapped (EH) teacher at H. L. Watkins Middle School until she was reassigned on January 6, 2000, pending an investigation. During the 1999/2000 school year, M. M.2 was a seventh grade student at H. L. Watkins Middle School. M. M. was a student in the Respondent's classroom for one period each day. Prior to December 17, 1999, M. M. had not created any behavior problems in the Respondent's classroom, although the Respondent knew that he was sometimes a behavior problem in the classrooms of other teachers. On Friday, December 17, 1999, M. M. misbehaved in the presence of the Respondent. While outside on the school grounds, M. M. made several inappropriate, vulgar, and offensive remarks to a girl who was passing by. Another student told M. M. that he should not use that type of language in the presence of the Respondent. M. M. replied by saying, "Fuck her." The Respondent promptly reported M. M.'s conduct to a Crisis Intervention Teacher (CIT) who was nearby.3 The CIT interviewed and redirected M. M. On Monday, December 20, 1999, M. M. and several other students were approximately ten minutes late for class because another teacher had kept them in class longer than usual. The Respondent told all of the late students, including M. M., that, because they were late, they had to get a pass before they could come into her class. With the exception of M. M., all of the late students left, presumably to obtain the necessary pass. M. M. remained and began to address the Respondent in terms that were confrontational, vulgar, offensive, and obscene.4 The Respondent brought this tirade to an end by closing and locking the classroom door with M. M. on the outside. A moment later, another teacher arrived and explained why the students had been late. The Respondent allowed all of the late students, including M. M., to enter her classroom. M. M. did not engage in any further misconduct on December 20, 1999. The Respondent did not write a referral about M. M.'s misconduct on December 20, 1999, because use of inappropriate language was a manifestation of one of M. M.'s handicaps and was an issue targeted in his Individualized Educational Plan (IEP). On December 21, 1999, M. M. arrived at the Respondent's classroom approximately twenty minutes late. All of the other students were engaged in taking a final exam. M. M. entered the classroom quietly, took a seat, and began taking the final exam. Moments later, M. M. began to disturb the class by talking to other students. The Respondent asked him to be quiet, and he complied, but only for a moment. When M. M. again disturbed the class by talking, the Respondent told him that if he could not be quiet, he would have to leave the classroom. In response to the Respondent's admonition, M. M. used confrontational, vulgar, and offensive language to tell the Respondent that she could not tell him what to do.5 At this point the Respondent became upset and embarked on a series of inappropriate overreactions to M. M.'s misbehavior. The Respondent began walking towards M. M. and M. M., concerned about what she might do to him, stood up from his desk and began backing away from his desk and from the Respondent. When the Respondent reached the desk that was between her and M. M., she violently shoved the desk to one side, causing the desk to fall over on its side. When the Respondent knocked over the desk, M. M. shouted "fuck you" and ran out of the classroom. The Respondent ran out after him. M. M. ran directly to the nearby office of the CIT, Curtis White. As M. M. ran to the back of Mr. White's office, he shouted, "Mr. White, get that lady!" Before Mr. White could figure out what was happening, the Respondent rushed into his office and headed straight for M. M. As the Respondent approached, M. M. backed up as far as he could until he was against a row of boxes stacked against the wall. The Respondent pushed M. M. back against the row of boxes and then grabbed his shirt with one hand and kept him pressed against the boxes while she slapped him in the face three times with her other hand. When the Respondent pushed and slapped M. M., he was shouting vulgar and offensive things to her, but his hands were down by his sides and he did not attempt to push or hit the Respondent. Immediately after the Respondent slapped M. M., another student in the CIT office grabbed the Respondent and began pulling her away from M. M. The Respondent turned and began to leave the CIT office. At that point, M. M. balled up his fists and it appeared that he might attempt to hit the Respondent. Yet another student grabbed M. M. and restrained him from following the Respondent. During the course of the events in the CIT office described above, M. M. and the Respondent were offensive and confrontational to each other. The Respondent's remarks to M. M. included, "Don't you ever fucking call me that again." The Respondent also told M. M. that she would "beat his ass" if he did not stop saying offensive things to her. The Respondent also said to M. M., "Boy, you don't know who you're messing with! I'll kill your ass!" On at least two prior occasions the Respondent has lost control and engaged in inappropriate conduct directed towards students. In 1999, the Respondent received a five-day suspension without pay for inappropriate physical contact with a student. The inappropriate contact on this occasion was grabbing a student by the face when the student misbehaved in a car. Later in 1999, the Respondent received a verbal reprimand with a written notation for throwing water on a student and calling the student a "faggot." Among the consequences of the Respondent's conduct on December 21, 1999, is the notoriety which resulted from publication of information about the incident in a local newspaper. M. M. cried as a result of the incident and was reluctant to return to school. At least one student who witnessed the events in the CIT office was worried that in the future a teacher might strike him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a Final Order terminating the Respondent's employment and denying all relief sought by the Respondent. DONE AND ENTERED this 14th day of December, 2000, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 14th day of December, 2000.
The Issue This is a license discipline case in which the Petitioner seeks to have disciplinary action taken against Respondent on the basis of alleged misconduct which is set forth in a three count Administrative Complaint. The misconduct alleged consists primarily of assertions that the Respondent used various forms of corporal punishment on her students and that she also engaged in verbal abuse of her students.
Findings Of Fact The Respondent currently holds Florida teaching certificate number 151121, covering the area of elementary education. The certificate is valid through June 30, 1995. During the 1990-1991 school year and during the 1991-1992 school year, the Respondent was employed as a teacher at Charles R. Drew Elementary School in the Dade County School District. In January of 1992, the Respondent threw a wooden ruler at A. S., who was a minor male student in her class. The ruler hit A. S. in the face and left a scratch on his face. This incident took place in class in the presence of other students in the class. During the 1991-1992 school year, the Respondent pinched A. S., a minor male student, on the ear in front of the other students in the class. During the 1991-1992 school year, the Respondent struck L. W., a minor female student, with a ruler on her hands and on her legs. The ruler left marks on L. W.'s hands. Student L. W. cried as a result of being struck with the ruler and she felt sad. During the 1991-1992 school year, the Respondent on several occasions used offensive and indecent language in the classroom, sometimes directing such language towards her students. The offensive and indecent language included such words as "fuck," "damn," "bitch," and "ass." During the 1991-1992 school year, the Respondent used tape to restrain M. S., a minor male student. Specifically, the Respondent taped student M. S.'s mouth closed, taped his arms to the arm rests of his chair, and taped his feet to the legs of his chair. During the 1991-1992 school year, the Respondent used tape on minor male student, P. B., to keep his mouth closed. Student P. B. was taped up in front of the class, which caused him to feel sad. During the 1991-1992 school year, the Respondent used tape on minor male student, A. S., to keep his mouth closed. During the 1991-1992 school year, the Respondent used tape on minor male student, T. L., to keep his mouth closed and to prevent him from talking. The Respondent also used tape to restrain T. L. Specifically, the Respondent taped T. L. to his chair. On several occasions during the 1991-1992 school year, the Respondent threw a wooden ruler, and other similar objects, at students in her class. During the 1991-1992 school year, the Respondent struck minor male student, M. S., with a wooden ruler. This incident was observed by the other students in the class and made M. S. feel sad and embarrassed. During the 1991-1992 school year, the Respondent struck minor male student, P. B., on the buttocks with a wooden ruler. During the 1991-1992 school year, the Respondent struck minor female student, D. H., on the buttocks with a counter in class. This incident embarrassed the student. During the 1991-1992 school year, the Respondent stuck minor male student, T. L., on his left arm with a counter in class. This incident embarrassed the student. During the 1991-1992 school year, the Respondent pinched the ear of minor male student, T. L. in class. On numerous occasions prior to the 1991-1992 school year, the Respondent, and all other teachers at Charles R. Drew Elementary School, had been made aware of the policies of the Dade County School District prohibiting corporal punishment. The Respondent had also been made aware of what was encompassed by the term "corporal punishment." In a memorandum dated February 12, 1991, concerning the use of corporal punishment, the Respondent was specifically instructed not to throw rulers at students.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a final order be issued in this case revoking the Respondent's teaching certificate for a period of three years and providing that any recertification of the Respondent shall be pursuant to Section 231.28(4)(b), Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of September 1993. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of September 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6896 The following are my specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner: Paragraphs 1, 2, 3 and 4: Accepted in substance. Paragraph 5: Accepted. Paragraph 6: Accepted in substance, although the language used is more accurately described as indecent or offensive than as profanity. Paragraphs 7, 8, 9, 10, 11, 12 and 13: Accepted in substance, with some repetitious information omitted. Paragraph 14: Admitted Paragraph 15: Rejected because not charged in the Administrative Complaint. Paragraphs 16, 17, 18, 19, 20, 21, 22, 23 and 24: Accepted in substance. Paragraph 25: Rejected as irrelevant. Paragraphs 26, 27, 28, 29, 30 and 31: Rejected as subordinate and unnecessary details, many of which are also irrelevant. Findings submitted by Respondent: Paragraphs 1 and 2: Accepted in substance. Paragraphs 3, 4 and 5: These paragraphs are accurate summaries of a portion of the allegations and of a portion of the evidence, but there was other evidence which supports a finding that Audric Sands was struck on the chin by a ruler thrown at him by the Respondent. Paragraph 6: Rejected as contrary to the greater weight of the persuasive evidence. Paragraphs 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20: These paragraphs are all essentially correct summaries of the testimony described in each paragraph. Although there are differences in the details reported by the several child-witnesses, such differences are not unusual when several young children describe an event. There was a great deal of consistency on several relevant matters. Paragraphs 21 and 22: These paragraphs are essentially accurate summaries of the testimony of the witness referred to. Although the witness Mr. Jim Smith testified he never heard or saw any misconduct by the Respondent, I still find the testimony of the child-witnesses to be persuasive. The child-witnesses were with the Respondent on many occasions when Mr. Smith was not present. Also, Mr. Smith worked as an aide to the Respondent only from some time in November or December until sometime in late January. Paragraphs 23, 24 and 25: These paragraphs are essentially accurate summaries of the Respondent's testimony. To the extent the testimony summarized here conflicts with the testimony of the child-witnesses, I have generally accepted as more persuasive the testimony of the child-witnesses. Paragraphs 26 and 27: I have resolved the conflicts in the evidence other than as suggested here. I have found most of the child-witnesses' testimony to be credible. COPIES FURNISHED: Gregory A. Chaires, Esquire Department of Education 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 William du Fresne, Esquire Du Fresne and Bradley, P.A. 2929 South West Third Avenue, Suite One Miami, Florida 33129 Karen Barr Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue Whether just cause exists for Petitioner to suspend Respondent for 15 days without pay.
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 Miami-Dade County, Florida. At all times material to this case, Respondent was employed as a social studies teacher at Palmetto Middle School (“Palmetto”), a public school in Miami-Dade County, Florida. At all times material to this case, Respondent’s employment with the School Board was governed by Florida law, the School Board’s policies, and the collective bargaining agreement (“CBA”) between the School Board and the United Teachers of Dade (“UTD”). The incident giving rise to this proceeding occurred on March 18, 2014, during the 2013-2014 school year. On March 18, 2014, Respondent was co-teaching a seventh grade social studies class with Vivian Taylor. Ms. Taylor is another social studies teacher at Palmetto. K.W. was a female student in the class. At that time, K.W. was approximately five feet tall and weighed ninety pounds. Prior to March 18, 2014, K.W. sat in an assigned seat in the back of the classroom of the social studies class co- taught by Respondent and Ms. Taylor. On March 17, 2014, K.W. displayed disruptive behavior in the classroom. On March 18, 2014, as the bell rang to signal that class was about to begin, K.W. and other students entered Respondent’s and Ms. Taylor’s classroom. When K.W. entered the classroom on March 18, 2014, Respondent instructed K.W. that she could not sit at her seat in the back of the classroom, and that she needed to sit at a desk in the front of the classroom. Instead of walking toward her newly assigned seat in the front of the classroom, K.W. disregarded Respondent’s instructions and attempted to walk in the opposite direction toward her prior assigned seat in the back of the classroom. Respondent then stood in the aisle, stepped in front of K.W., and “blocked” her “path” toward the seat in the back of the classroom. Respondent blocked K.W.’s path in an attempt to re-direct her to her newly assigned seat in the front of the classroom. In his effort to block K.W.’s path of travel and re-direct her to her newly assigned seat in the front of the classroom, Respondent and K.W. made very slight physical contact with each other. The physical contact between Respondent and K.W. was minor, inadvertent, and lasted no more than one second. At hearing, Respondent denied that he ever made physical contact with K.W. Ms. Taylor, the only other purported eye-witness to the incident, who testified at the hearing on behalf of the School Board, was asked by the School Board’s counsel to describe whether Respondent and K.W. ever made physical contact. In response, Ms. Taylor testified: It was just their chest, just the top body, because Mr. Chandra-Das is a bit taller than her, so when he stepped up, that’s what touched. Ms. Taylor described the physical contact between Respondent and K.W. as very slight--“it was just a touch,” it lasted “[a] second, half a second.” After Respondent blocked K.W.’s path, K.W. stepped back and put her head down. Ms. Taylor testified that K.W. was visibly upset and crying. Ms. Taylor immediately told K.W. to leave the room and go directly to the assistant principal’s office. Respondent’s supervisor, Principal Lux, acknowledged at the final hearing that there is no written directive or School Board policy which forbids a teacher from blocking the path of a student. Principal Lux further testified that he has never “disciplined a teacher in the past for blocking the path of students and not letting the student go wherever they want,” and that he is unaware of any circumstance in his 15 years with the School Board in which the School Board has disciplined an employee for blocking the path of a student. The persuasive and credible evidence adduced at hearing demonstrates that there was, at most, very slight physical contact between K.W. and Respondent as Respondent attempted to block K.W.’s path of travel and re-direct her to her newly assigned seat in the front of the classroom. Respondent did not intend to make physical contact with K.W., and the physical contact between Respondent and K.W. was minor, inadvertent, and lasted no more than one second. The evidence does not establish that Respondent pressed his body against K.W., as alleged in the Notice of Specific Charges.2/ At no time did Respondent grab, push, shove, punch or place his hands on K.W. in any way. Respondent was justified and acted in an appropriate manner in blocking K.W.’s path in the manner that he did, which was in an effort to re-direct K.W. to her newly assigned seat. On March 20, 2014, Respondent was advised of an investigation with regard to the March 18, 2014, incident involving K.W. On that date, Respondent was specifically advised by his supervisor, Principal Lux, in a letter: You are prohibited from contacting any complainant(s) and/or witness(es), with the intent to interfere with the investigation of the above listed allegation(s). Subsequent to Respondent’s receipt of this directive, Respondent contacted Ms. Taylor and advised her that he was the subject of an investigation regarding the March 18, 2014, incident involving K.W. Respondent showed Ms. Taylor the letter, but he did not attempt to influence her in any way. Respondent did not violate the directive of Principal Lux, because Respondent did not contact Ms. Taylor “with the intent to interfere with the investigation.” In sum, the evidence at hearing failed to show that Respondent’s conduct with regard to the incident in the classroom on March 18, 2014, involving K.W. constitutes misconduct in office, gross insubordination, or a violation of School Board policies. In sum, the evidence at hearing failed to show that Respondent violated Principal Lux’s directive not to contact any witnesses “with the intent to interfere with the investigation.” Accordingly, the School Board failed to prove that Respondent’s communications with Ms. Taylor constitutes gross insubordination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order rescinding the 15-day suspension of Respondent with back pay. DONE AND ENTERED this 17th day of November, 2014, 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 17th day of November, 2014.
The Issue The issue for determination is whether Respondent had just cause to suspend Petitioner for 30 workdays, without pay.
Findings Of Fact No dispute exists that the School Board is a constitutional entity charged with the duty to operate, control and supervise the public schools within the school district of Miami-Dade County, Florida. No dispute exists that, at all times material hereto, Mr. Boundy was employed full-time with the School Board as a teacher and held a professional service contract. Mr. Boundy had been a teacher with the School Board for 15 years. In his professional career, Mr. Boundy had been a teacher, then had practiced law in the State of Florida for 15 years, and had become a teacher again. No dispute exists that, at all times material hereto, Mr. Boundy was assigned to Nautilus Middle School, hereinafter Nautilus, in the Miami-Dade County’s school district. He was assigned to teach science. On September 30, 2005, Mr. Boundy was teaching his science class at Nautilus. He was having problems with one particular student, D. M., who was approximately 14 years of age.1 D. M. had just returned to class from being on indoor suspension, for cutting class. Earlier that day, after having returned from indoor suspension, D. M. had been involved in a physical altercation, a “minor”2 fight, and Mr. Boundy counseled him. At lunch time, another teacher broke-up a fight between D. M. and another student; Mr. Boundy counseled him again. Mr. Boundy determined that the first fight did “not” warrant a “write-up” and that the second fight perhaps “may” have warranted a write-up but that he decided not to do so.3 After lunch, while in Mr. Boundy’s class, D. M. had another fight with a student, which was D. M.’s third fight that day. Mr. Boundy has a policy in his class that, “after three strikes, you’re out,”4 therefore, instead of counseling D. M. again, Mr. Boundy determined that a “write-up” was warranted and that D. M. had to leave his class. Mr. Boundy told D. M. to leave the class and go to the office. Before leaving the class, D. M. began spraying perfume and then walked out into the hallway but did not go the office. Mr. Boundy observed D. M. still outside in the hallway. When Mr. Boundy walked out of his class into the hallway, he observed D. M spraying perfume in the hallway. Mr. Boundy asked D. M. to give the perfume to him (Mr. Boundy). D. M. raised his hand and brought it down as if to strike Mr. Boundy at which time Mr. Boundy grabbed D. M.’s hand and pulled it behind his (D. M.’s) back and told D. M. that he (D. M.) needed to go to the office. The hallway outside of Mr. Boundy’s classroom is equipped with a surveillance camera, which recorded the interaction between Mr. Boundy and D. M. after the contact described above. The surveillance camera does not record as a regular video camera but records as a series of snapshots or still pictures approximately every second, with gaps in between the snapshots; therefore, the surveillance camera fails to reveal completely what happens within a segment of time.5 As a result of the gaps in between snapshots of the surveillance camera, the testimony of witnesses is crucial in determining what happened. While in the hallway, the surveillance camera shows Mr. Boundy’s back to it and D. M. directly in front of him in such close proximity as if their bodies were touching. Mr. Boundy testified that he took D. M. by the arms and was directing him toward the doors leading to the office. Mr. Boundy’s testimony is found to be credible. Subsequently, while also in the hallway, the surveillance camera, in several snapshots, shows Mr. Boundy and D. M. separated, with D. M. facing Mr. Boundy, who testified that D. M. wrestled away from him. The surveillance camera also shows, in one snapshot, Mr. Boundy’s left hand on D. M.’s right shoulder and, in another snapshot, D. M. moving back toward the classroom. Mr. Boundy testified that D. M. was going back to the classroom without his (Mr. Boundy’s) permission. D. M. admitted that he was returning to the classroom without Mr. Boundy’s permission. Mr. Boundy’s testimony is found credible. Further snapshots by the surveillance camera show Mr. Boundy grabbing D. M. by the arms and shoulder area, when D. M. gets close to the classroom, and pushing D. M. down the hallway; and shows some students observing the conduct in the hallway. Also, the snapshots by the surveillance camera show Mr. Boundy and D. M. exiting the exit doors at the stairwell, with Mr. Boundy continuing to hold D. M.’s arms. After they go through the exit doors, the snapshots by the surveillance camera show Mr. Boundy releasing D. M. and watching D. M. go down the stairs. Mr. Boundy testified that he told D. M. to go to the office. D. M. does not deny that Mr. Boundy told him to go to the office at that point. D. M. went to the main office. The school counselor, Amy Magney, talked with D. M., who was loud and appeared to be agitated. Ms. Magney observed marks on D. M.’s arms and the back of his neck, which she described as “very red.” D. M. informed Ms. Magney that Mr. Boundy’s forceful touching had caused the red marks. Ms. Magney took D. M. to the assistant principal, Ms. Gonsky, who observed marks on D. M.’s arms, which were red, and marks on D. M.’s the neck, shoulder area, which Ms. Gonsky described as a “little red.” Mr. Boundy admits, and at no time did he deny, that he grabbed D. M. by the arms and shoulder area. For example, at the Conference for the Record (CFR) held on November 15, 2005, Mr. Boundy admitted that he held D. M.’s arms by the back directing him towards the stairs. A detective of the School Board’s police department reviewed the snapshots by the surveillance camera. From the detective’s observation, he determined that Mr. Boundy did not take any malicious action against D. M.; that D. M. was resisting Mr. Boundy; that, at one point, D. M. made an aggressive action against Mr. Boundy; and that Mr. Boundy was “directing, escorting” D. M. through the exit doors. D. M. testified that Mr. Boundy also grabbed him around the neck. Mr. Boundy denies that he grabbed or touched D. M.’s neck but admits that he grabbed D. M. at the shoulder area. V. V., a student in Mr. Boundy’s class, testified that Mr. Boundy grabbed D. M. by the neck, pushing D. M. out of the classroom. Also, the Conference for the Record (CFR) held on November 15, 2005, indicates that the same student stated that, while Mr. Boundy and D. M. were in the hallway, D. M. swung at Mr. Boundy and struck him in the chest. Mr. Boundy denies that he was struck by D. M. and D. M. denies that he struck Mr. Boundy. V. V.’s testimony is not found to be credible. The snapshots by the surveillance camera do not show Mr. Boundy grabbing or touching D. M.’s neck. Ms. Magney was the first person in the school's office to observe the marks, and when she saw the marks on the back of D. M.’s “neck,” the marks were “very red”; however, when Ms. Gonsky, the second person in the school's office to observe the marks, the marks around the “neck, shoulder area” were a “little red.” Further, D. M. had been in two physical altercations before the incident with Mr. Boundy and the last altercation had occurred at lunch time. Ms. Gonsky’s account of the location of the red marks is not inconsistent with Mr. Boundy’s testimony, regarding the shoulder area. Additionally, when Ms. Gonsky observed the marks at the neck, shoulder area, they were a little red, not red or very red. The undersigned finds Mr. Boundy’s and Ms. Gonsky’s testimony and account more credible regarding the marks being at the shoulder area, not the neck. Furthermore, the undersigned finds that Mr. Boundy grabbed D. M. at the shoulder area and that the marks at the shoulder area were caused by Mr. Boundy and were a little red. No dispute exists that D. M. was being disruptive. Mr. Boundy had counseled D. M. on two occasions that same day for fighting. D. M. had committed a third strike by fighting again in Mr. Boundy's class, and according to Mr. Boundy's classroom policy of which the students were aware, the third strike meant that the student was leaving the classroom and going to the school's office. Mr. Boundy was going to write-up D. M. for the incident but did not do so. Before he could write-up D. M., Mr. Boundy was summoned to the school's office after the administrators in the office observed the marks and heard D. M.'s version of the incident. At the beginning of each school year, the principal of Nautilus, Caridad Figueredo, has an opening meeting, consisting of two days. At the opening meeting, among other things, Ms. Figueredo notifies the Nautilus' faculty that they must comply with the rules of the School Board and the Code of Ethics, and some of the rules are reviewed with the faculty. Further, at the opening meeting, Nautilus' faculty is provided a copy of the Faculty Handbook. Nautilus' faculty signs an acknowledgement that they understand that they are responsible for becoming knowledgeable about the rules and adhering to them. Mr. Boundy signed an acknowledgement and received a copy of the Faculty Handbook. Regarding physical contact, Ms. Figueredo indicates at the opening meeting that the School Board prohibits using physical contact to maintain discipline or to affect a student’s behavior. As a result, at the opening meeting, she informs Nautilus' faculty, and stresses to them, that they should not use physical force or, generally, to come in physical contact with the students. However, as to coming into physical contact with students, an exception is recognized and allowed in the touching of a student by a teacher if the teacher has a rapport with the student and the student has no objection to or approves of the teacher just tapping him or her. That exception is not applicable in the instant case. Nautilus had a 2005-2006 Faculty and Staff Handbook, hereinafter Handbook. The Handbook contained a Progressive Discipline Plan, hereinafter Plan, for teachers to use when they encounter disruptive students. The Plan contained several steps of action, which provided in pertinent part: Step I: Teacher The teacher may handle discipline in the following ways (list not inclusive): Move close to the student – use verbal and/or non-verbal techniques to correct behavior problems * * * Speak with the student on a one-to-one basis * * * Contact parent (verbal and/or written) Hold parent or student/parent conference PLEASE NOTE: Parent contact is REQUIRED before a referral can be made to the administration. Only disciplinary problems involving infractions of the Code of Student Conduct Group III or higher (fighting . . .) may be directly referred to the administration using a case management form. * * * Step IV: Referring Students For Administrative Action Students should be sent directly to the appropriate administrator only when critical incidents occur such as fighting . . . Please use your emergency button to request for[sic] assistance. If a student becomes disruptive and you request removal the administrator will take the appropriate disciplinary action deemed necessary according to the Code of Student Conduct and provide teachers immediate feedback. (emphasis in original) The Handbook also contained a section entitled “Things To Remember When Dealing With A Student,” which provided in pertinent part: 4. DON’T: Snatch things away from students. Become confrontational. Physically block an exit. Argue or get on the student’s level. Shout or put them down. Disrespect them. * * * 6. Use common sense regarding touching students: Be aware that affectionate gestures may be misconstrued. Avoid physical contact of any kind in situations involving you and student (i.e. where there are no witnesses). Additionally, the Handbook contained a section entitled “How to Avoid Legal Complications as an Educator,” which provided in pertinent part: Respect the space of others. Do not place your hands on students. * * * Know the laws, School Board policies and school rules, and follow them. * * * Corporal punishment is prohibited in Miami- Dade County Public Schools. Treat each student with respect. Establish a policy regarding discipline. Distribute the policy to students and parents at the beginning of the year or when the students begin your class. The School Board has established “Procedures for Promoting and Maintaining a Safe Learning Environment,” which provides in pertinent part: Purpose of the Procedures for Promoting and Maintaining a Safe Learning Environment This document, Procedures for Promoting and Maintaining a Safe Learning Environment, is incorporated by reference and is a part of School Board Rule 6Gx13-5D-1.08, Maintenance of Appropriate Student Behavior. It has been prepared to assist school administrators in promoting and maintaining a safe learning environment in the public schools of Miami-Dade County, Florida. These procedures and directions are set forth to guide and promote orderly and productive participation of students in school life and support the achievement of Florida's education goal for school safety and environment, Section 229.591(3)(e), F.S. Student actions and behaviors that can be defined as disruptive and/or threatening must be dealt with according to Florida Statutes, and Florida Board of Education and Miami-Dade County School Board Rules. This manual contains information necessary to assist school administrators in making the most appropriate decisions and taking warranted action in promoting maintaining a safe learning environment. * * * Administrators, counselors, and appropriate staff are expected to become familiar with this document, to review it periodically, and to utilize it according to its inherent purpose -- promoting and maintaining a safe learning environment in the public schools of Miami-Dade County, Florida. As the administration and staff at each school site address the requirements of current Miami- Dade County Public Schools (M-DCPS) guidelines, they should also review modifications of requirements related to school discipline and school safety as established by the Florida Legislature. * * * GUIDELINE #39: REMOVAL OF STUDENT FROM CLASS AND POSSIBLE EXCLUSION OF THE STUDENT BY THE TEACHER CURRENT LAW AND/OR PRACTICE: Florida Statutes and Miami-Dade County School Board Rules allow for teachers to remove a disruptive student from class if the behavior of the student has an adverse effect on the teacher's ability to communicate effectively with students or the ability of the students to learn. Section 232.271, F.S., provides for the right of the teacher to refuse to accept a student back to class who has been removed for disruptive behavior which adversely affects the teacher's ability to communicate effectively with the students or with the ability of the students to learn. Provisions for Exceptional Students: The Placement Review Committee shall refer to the IEP team all exclusion requests for students from exceptional education classes. Temporary Removal from Class 1. The teacher shall have the authority to remove a seriously disruptive student from the classroom. In such cases, the principal or designee shall be notified immediately and the teacher shall be entitled to receive, prior to the student's return to class, a report describing corrective action(s) taken. Guidelines for implementing this provision shall be developed by each Educational Excellence School Advisory Council (EESAC). Code of Student Conduct Infractions The principal or designee will follow the Code of Student Conduct on all disciplinary matters. Only those disciplinary problems which disrupt a teacher's instruction, when the teacher requests the student's permanent removal from class, shall be referred to the Placement Review Committee, if the request is not resolved by the principal. A CFR was held on November 15, 2005. A Summary of the CFR was prepared and provides in pertinent part: [Mr. Boundy was asked]: 'Did you touch the student?' [Mr. Boundy] replied: 'Yes and it will never happen again.' * * * The following directives are herein delineated which were issued to you [Mr. Boundy] during the conference: Adhere to all M-DCPS [Miami-Dade County Public Schools] rules and regulations at all times, specifically School Board Rules [sic] 6Gx13-4A-1.21, Responsibilities and Duties. Adhere to The Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida. Cease and desist from utilizing physical means to effect the behavior of students. * * * During the conference, you [Mr. Boundy] were directed to comply with and were provided copies of the following School Board Rules: 6Gx13-4A-1.21, Responsibilities and Duties 6Gx13-4A-1.213, The Code of Ethics You [Mr. Boundy] were advised of the high esteem in which teachers are held and of the District's [School Board's] concern for any behavior, which adversely affects this level of professionalism. You [Mr. Boundy] were reminded of the prime directive to maintain a safe learning environment for all students and that your actions violated this directive. . . . Further, attached to the Summary of the CFR was "Guideline #9: Corporal Punishment, Current Law and/or Practice, from the Procedures for Promoting and Maintaining a Safe Learning Environment," which provides in pertinent part: GUIDELINE #9: CORPORAL PUNISHMENT CURRENT LAW AND/OR PRACTICE: CORPORAL PUNISHMENT IS PROHIBITED IN MIAMI-DADE COUNTY PUBLIC SCHOOLS. . . . Corporal punishment is physical force or physical contact applied to the body as punishment. Section 228.041(27), F.S., defines corporal punishment as: . . . the moderate use of physical force or physical contact by a teacher or principal as may be necessary to maintain discipline or to enforce school rule. However, the term 'corporal punishment' does not include the use of such reasonable force by a teacher or principal as may be necessary for self-protection or to protect other students from disruptive students. The use of physical restraint techniques in accordance with the Miami-Dade County School Board Rule 6Gx13-6A-1.331, Procedures for Providing Special Education for Exceptional Students and Article VIII of the Contract Between Miami-Dade County Public Schools and the United Teachers of Dade is not corporal punishment. Prior to Mr. Boundy’s going into the hallway, to confront D. M., alternative avenues were available to Mr. Boundy for sending D. M. to the school's office without confronting him in the hallway. Nautilus has a protocol that, whenever a teacher is unable to control a disruptive student by using classroom management techniques, the teacher can press a security button, located in the classroom, and a security monitor or an administrator will immediately come to the classroom. The security monitor or administrator will assess the situation and remove the disruptive student. Mr. Boundy failed to use this established protocol. The undersigned does not find credible the testimony given on alternative methods of dealing with D. M., as a disruptive student, in terms of in-school suspension, student mediation, conflict resolution, parent involvement, alternative education, suspension, and expulsion as being applicable to the instant case. These alternatives are available after the student is removed from the classroom to the school's office; they fail to address the immediate removal of the physical presence of a disruptive student from the classroom. The exception to corporal punishment found at Guideline Nos. 9 and 39, regarding the use of physical restraint techniques for situations involving Exceptional Student Education (ESE), is not applicable to the instant case. Mr. Boundy's class was not an ESE class, and D. M. was not an ESE student. Also, the exception to corporal punishment found at Guideline No. 9, regarding situations to protect other students, is not applicable to the instant case. None of the other students in Mr. Boundy's class were in harm's way or needed protection in the hallway outside Mr. Boundy's classroom. However, the exception to corporal punishment in a situation for self-protection, i.e., the protection of Mr. Boundy from D. M., was applicable in the instant case. When D. M. raised his hand and brought it down as if to strike Mr. Boundy, Mr. Boundy grabbed D. M.'s arms and put his (D. M.'s) arms behind his back; at that instant, Mr. Boundy was in need of self-protection and he (Mr. Boundy) acted appropriately. But, the evidence fails to demonstrate that, after Mr. Boundy prevented D. M. from striking him, Mr. Boundy continued to be in need of self-protection. Self-protection failed to continue to exist and failed to exist during the time that Mr. Boundy was directing/escorting D. M. down the hall to the exit doors. The Administrative Director of the School Board's Office of Professional Standards, Gretchen Williams, testified that Mr. Boundy's use of physical contact in the handling of D. M. in the hallway and that the presence of red marks on D. M., exemplified excessive force, which rendered Mr. Boundy's action as a violent act. Further, she testified that Mr. Boundy's conduct was corporal punishment; that his violent act constituted unseemly conduct; and that his violent act was contrary to the School Board's prime directive to maintain a safe learning environment, which constituted unseemly conduct and was conduct unbecoming a School Board employee. Ms. Williams' testimony is found to be credible. Also, the School Board's Administrative Director, Region II, DanySu Pritchett testified that Mr. Boundy's physical force constituted violence in the workplace; and that he failed to maintain the respect and confidence of the student and the value of worth and dignity of the student through the use of physical force. Further, she testified that the failure to use an alternative method of removal by using the emergency call button was poor judgment and constituted conduct unbecoming a School Board employee. Ms. Pritchett's testimony is found to be credible. Additionally, Ms. Figueredo, testified that Mr. Boundy subjected D. M. to unnecessary embarrassment by using physical force in the hallway in front of D. M.'s classmates while Mr. Boundy was directing/escorting D. M. down the hall. Further, Ms. Figueredo testified that, during the hallway incident, Mr. Boundy engaged in corporal punishment, conduct unbecoming an employee of the School Board, unseemly conduct, and poor judgment, and was not a good role model to the students and staff. Ms. Figueredo's testimony is found to be credible. Also, Ms. Figueredo testified that Mr. Boundy's use of poor judgment and failure to use established protocol and to exemplify a good role model to the students and the staff caused Mr. Boundy to lose his effectiveness. Ms. Figueredo's testimony is found to be credible. Pending the investigation of the incident by the School Board, Mr. Boundy was removed from the classroom. He was placed on alternative assignment, i.e., at his home. Due to Mr. Boundy's failure to follow established protocol at Nautilus for the removal of D. M. from the classroom, to the physical force used by Mr. Boundy, to the marks that were a little red and were caused by the physical force, and to the seriousness of the incident, by memorandum dated November 21, 2005, Ms. Figueredo recommended a 30-day suspension for violation of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties. Ms. Pritchett agreed with the recommendation. By memorandum dated December 1, 2005, the School Board's Region Center II concurred in the recommendation. On February 28, 2006, a meeting was held with Mr. Boundy to address the forthcoming School Board's consideration of the recommendation for a 30-day suspension without pay. Those in attendance included Mr. Boundy, Ms. Williams, Ms. Pritchett, Ms. Figueredo, and a UTD representative, Mr. Molnar. The determination was that Mr. Boundy would be recommended for a 30-day suspension without pay for just cause, including but not limited to "deficient performance of job responsibilities; conduct unbecoming a School Board employee; and violation of State Board Rule 6B-1.001, Code of Ethics of the Education Profession in Florida; and School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties; and 6Gx13-5D-1.07, Corporal Punishment--Prohibited." By letter dated March 1, 2006, Mr. Boundy was notified by the School Board's Assistant Superintendent, among other things, that the School Board's Superintendent would be recommending, at the School Board's meeting scheduled for March 15, 2006, the 30-day suspension without pay for just cause, indicating the violations aforementioned. By letter dated March 16, 2006, the School Board's Assistant Superintendent notified Mr. Boundy, among other things, that the School Board had approved the recommendation and that he was not to report to work at Nautilus from March 16, 2006 through April 26, 2006.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order finding that just cause existed for the 30-day suspension, without pay, from employment of Robert Boundy. DONE AND ENTERED this 30th day of April 2007, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2007.
The Issue The issues to be determined are whether Respondent, Ms. Claudine Etienne, violated section 1012.795(1)(j), Florida Statutes (2011),1/ and implementing administrative rules, as alleged in the Administrative Complaint; and, if so, what is the appropriate sanction.
Findings Of Fact The Commissioner is responsible for investigating and prosecuting allegations of misconduct against individuals holding educator's certificates. Ms. Etienne holds Florida Educator's Certificate 845026, covering the areas of English and mathematics, which is valid through June 30, 2018. At all times relevant to the complaint, Ms. Etienne was employed as an English teacher at Miami Springs High School in the Miami-Dade County School District. On or about January 20, 2012, an unknown student ignited a smoke bomb or large firecracker in a locker in Ms. Etienne's classroom. Ms. Etienne was unsure what the device was or how it was ignited. Smoke was generated from the device, and it filtered into the classroom. One or more students requested to leave the room because of the smoke. In her deposition, Ms. Etienne indicated that at the time of the incident, she was aware that one of the students assigned to her class, C.E., had asthma because she had a conversation with C.E.'s mother in December about it. Ms. Etienne testified that she did not recall C.E. asking her to leave the room on the day of the incident, however, and in fact did not remember if C.E. was even in class that day. Ms. Etienne did not believe the smoke was sufficiently serious to require her to allow the students to leave the room. She was uncertain how to proceed until administrators who had been called arrived in the classroom. Ms. Etienne instructed the students to stay in the room until an administrator arrived. One student subsequently required medical attention as a result of the smoke inhalation. In her written statement, C.E. stated that paramedics came to the school to assist her because she could not breathe after her exposure to the smoke in the classroom.2/ Ms. Etienne later received a verbal reprimand from the school district.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Ms. Claudine Etienne in violation of section 1012.795(1)(j), Florida Statutes, through her violation of Florida Administrative Code Rule 6B-1.006(3)(a), issuing her a letter of reprimand, and assessing a fine against her in the amount of $500. DONE AND ENTERED this 7th day of February, 2017, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 2017.
The Issue The issues are whether Respondent violated Section 231.28(1)(i), Florida Statutes, and Rules 6B-1.006(3)(a) and 6(3)(e), Florida Administrative Code, and if so, what discipline should be imposed.
Findings Of Fact Respondent is licensed to teach emotionally handicapped children in the elementary schools of Florida. She holds Florida teaching certificate number 696889 which is valid through June 30, 1998. At all times material to this proceeding, Respondent was employed by the Volusia County School Board as a teacher of emotionally handicapped children in a self-contained classroom at New Smyrna Middle School. Prior to November 13, 1995, Respondent had no prior disciplinary history. The 1995-96 school year was Respondent's first year as a teacher at New Smyrna Middle School. Her previous teaching experience consisted of serving as a resource teacher. In that circumstance the students went to Respondent's class for a portion of the school day for instruction in certain academic areas. In August of 1995, Respondent requested a conference with the assistant principal, Sue Wolter. One of the items that Respondent wanted to discuss was the procedure she should follow in case a student had a weapon in the classroom. Ms. Wolter instructed Respondent that she should press the buzzer in the classroom three times. When the office staff receives this signal, they know there is a severe problem in the classroom. When a teacher presses the buzzer a light turns on beside the room number. Ms. Wolter also told Respondent that she could use the school intercom and say "Code 3" to alert the office about an emergency situation without letting the class know that she was calling for help. Lastly, Ms. Wolter advised Respondent to send her teaching assistant to the office for assistance. Respondent used these methods to summon help to her classroom on numerous occasions prior to the incident at issue here. In November of 1995, Respondent's class consisted of 12 sixth-grade students. The students' chronological ages varied from 11-to-14 years of age. Respondent's class consisted of students with "varying exceptionalities." Many of the students were dually diagnosed as having psychological and emotional disorders as well as mental retardation. The students' I.Q.'s were exceptionally low. Respondent's students were impulsive, volatile, and often exhibited poor judgment. They had difficulty at times distinguishing between right and wrong. Therefore, it was essential for Respondent to exercise appropriate classroom control at all times. Respondent had a difficult time maintaining discipline in the class. Students were frequently out of their seats or leaving the classroom without permission. Due to the chaotic classroom environment, several different teaching assistants were assigned to Respondent's classroom prior to November 13, 1995. On November 13, 1995, Ms. Linda Baker was Respondent's teaching assistant. Respondent and Ms. Baker did not have a successful working relationship. Ms. Baker felt that Respondent was a poor classroom disciplinarian. Ms. Baker also resented what she perceived as Respondent's condescending attitude. Respondent, on the other hand, resented Ms. Baker's admitted refusal to follow instructions which, at times, amounted to blatant insubordination. As a result of their communication problems, Respondent often wrote notes to Ms. Baker setting forth her classroom duties instead of speaking to her directly. Lavagus Brown, Michael Binder, and Klara Mills were students in Respondent's classroom on the morning of November 13, 1995. Klara Mills was the only girl in the class. As class began that morning, Lavagus Brown told Respondent that Klara had something in her bag that the teacher should know about. Next, Michael Binder told Respondent that Klara had a knife in her bag. Ms. Baker was sitting in the back of the room. She also heard from the children that Klara had a knife. Respondent wrote a note to Ms. Baker and took it to her in the back of the classroom. Respondent asked Ms. Baker to take the note to the office and get an administrator. Respondent did not reveal the contents of the note or explain to Ms. Baker why it was necessary for an administrator to come to the classroom immediately. Ms. Baker took the note and left the classroom. She returned later without an administrator. When questioned by Respondent, Ms. Baker told Respondent that she had delivered the note to the office. Respondent still did not discuss the seriousness of the situation with Ms. Baker. Respondent asked Klara to get her things together so that they could go to the office. Klara took her backpack purse and left the room with Respondent. She did not take her bookbag with her. Ms. Baker stayed in the classroom with the remaining students. She began taking the boys down the hall to the restroom. In order to get to the main office, Respondent and Klara had to walk out of one building, down the main walkway past a second building, and into the second entrance of a third building. Respondent did not attempt to retrieve Klara's backpack purse during the walk through the campus. When Respondent and Klara arrived at the office, Jasmine Gutierrez, a teacher's aide, was waiting in the outer office to see Ms. Wolter, who was in her office with the door partially closed. Cheryl Tucker, one of two secretaries, was also in the outer office. Ms. Tucker was busy answering the phone and writing passes for students. While she was waiting for Ms. Wolter, Ms. Jasmine Gutierrez helped Ms. Tucker write passes for students so they could go to class. Respondent and Klara stood in a corner of the office where they had an argument. Klara denied that she had a knife, claiming that she only had a toy in her bookbag, which was still in the classroom. Klara wanted to go back to the classroom. Respondent wanted Klara to give an object to Respondent or someone that Klara trusted. Respondent asked Ms. Tucker if Ms. Wolter was in the office. Ms. Tucker responded in the negative. Respondent then asked Ms. Tucker to watch Klara while she looked for an administrator. Respondent did not see anyone in Ms. Wolter's office through the partially opened door. Respondent walked toward the office workroom to check her mailbox. Klara was still in the office when Respondent walked back toward the office and around a corner to go to the clinic. Respondent thought that Ms. Wolter might be in the clinic helping the nurse. Unable to locate Ms. Wolter in the clinic, Respondent returned to the office. Ms. Tucker was no longer in the outer office. Ms. Debra Gutierrez, the main secretary, was at her desk next to the office door which was slowly closing. Klara was not in the office. Learning that Klara had returned to class, Respondent left the office without telling anyone in the office that Klara possibly had a knife in her possession. Respondent caught up with Klara before she re-entered the classroom. Respondent told Klara to go to her desk and gather all of her things, including her backpack purse and bookbag, because they needed to return to the office. When Respondent entered the classroom, Ms. Baker was sitting at her place in the back of the room. Respondent immediately began to deal with a student who was in the time-out room, screaming and yelling. Respondent attempted to calm the student down. The time-out room is a small closet with a desk where students can go when they want to work undisturbed. Respondent also used the room for students who were behaving inappropriately and needed time to cool off before returning to class. At times, Respondent would put herself in the time-out room when she felt she was losing patience with the children. While Respondent was in the time-out room with the other student, Ms. Baker took Klara to the restroom. In the hallway, Ms. Baker asked Klara if she had a knife. Klara denied having a knife. As Ms. Baker and Klara entered the classroom, other students began asking Klara about her knife. Klara did not respond to their comments. When Ms. Baker and Klara came back into the classroom, Respondent was standing in the doorway of the time-out room with the door partially closed. From that vantage point, Respondent could talk to the student who was upset and watch Klara who was sitting at her desk. Ms. Baker sat at her place in the back of the room for a few minutes. Then she went to the office where she located Elaine Haskins and Lenny Carr, campus advisors, advising them that Klara possibly had a weapon in the classroom. Ms. Haskins used her walkie-talkie to advise Ms. Wolter that she and Mr. Carr were proceeding with Ms. Baker to Respondent's room because there was a problem. When Ms. Haskins, Mr. Carr, and Ms. Baker arrived at Respondent's classroom, Klara was working quietly at her desk. Ms. Haskins entered the room and told Klara to get all of her things and accompany her to the office. Mr. Carr and Ms. Baker stayed in the hall. At this time, Respondent was still in the time-out room with the other student. Ms. Haskins walked to the time-out room and knocked on the partially-open door. Ms. Haskins advised Respondent that she was taking Klara to the office. Respondent did not advise Ms. Haskins that Klara possibly had a knife. Mr. Carr escorted Ms. Haskins and Klara back to the office. On the way, Ms. Haskins radioed Ms. Wolter to tell her that they were taking Klara to the office. Ms. Haskins told Ms. Wolter that Klara possibly had a weapon in her bag. The school resource officer met the campus advisors and Klara in Ms. Wolter's office. Klara admitted to Ms. Wolter that she had a knife in her bookbag. As Klara emptied her bag on Ms. Wolter's desk, she took out a large hunting knife. The knife was approximately eight and three-quarter inches in length when the retractable blade was extended. The blade alone was four inches long. Subsequently, Ms. Haskins went back to Respondent's classroom to tell her that Klara would not be coming back to class. There is no persuasive evidence of the following admissions by Respondent: (a) to Ms. Haskins that she knew Klara had a knife and "just hadn't responded on that" and (b) to Ms. Baker that she (Respondent) was too busy to handle the situation with Klara and the knife. About one week after the incident involving Klara, Respondent and Ms. Baker had a major disagreement. Ms. Baker was removed as the teaching assistant in Respondent's classroom. Respondent knew from the beginning that she had a potentially dangerous situation in her classroom. The potential for violence created an extremely unsafe environment for all the children involved, including Klara. The Volusia County School District's Student Code of Conduct states that possession of a weapon is a major offense which requires a recommendation of expulsion. Pending a decision on expulsion, a student will be suspended and lose all extracurricular privileges. Respondent was familiar with the Student Code of Conduct. However, the Volusia County School District has no written policy explaining the proper procedure a teacher should follow in searching a student when confronted with actual knowledge or a reasonable suspicion that the student has possession of a concealed weapon.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order suspending Petitioner's teaching certificate for two weeks and imposing two years of probation. DONE AND ENTERED this 16th day of September, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 1997. COPIES FURNISHED: Ron Weaver, Esquire Ron Weaver and Associates, P.A. Post Office Box 10825 Tallahassee, Florida 32302-2865 Paul Kwilecki, Esquire 433 Silver Beach Avenue, Suite 104 Daytona Beach, Florida 32176 Kathleen M. Richards, Executive Director Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick, Esquire Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Jerry Whitmore, Program Director Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges, as amended. If so, what action should be taken against Respondent.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control, and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida. Among these schools are Miami Central Senior High School (Central) and American Senior High School (American). Alberto Rodriguez is now, and has been for the past six years, the principal at American. As American's principal, Mr. Rodriguez has supervisory authority over the School Board employees assigned to work at the school. These employees are expected to conduct themselves in accordance with School Board Rules, including School Board Rules 6Gx13-4A-1.21, 6Gx13-5D-1.07, and 6Gx13-6A-1.331 At all times material to the instant case, School Board Rule 6Gx13-4A-1.21 provided, in pertinent part, as follows: Permanent Personnel RESPONSIBILITIES AND DUTIES Employee Conduct 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 presence of students is expressly prohibited. . . . At all times material to the instant case, School Board Rule 6Gx13-5D-1.07 provided as follows: CORPORAL PUNISHMENT- PROHIBITED The administration of corporal punishment in Miami-Dade County Public Schools is strictly prohibited. Miami-Dade County Public Schools has implemented comprehensive programs for the alternative control of discipline. These programs include, but are not limited to, counseling, timeout rooms, in-school suspension centers, student, mediation and conflict resolution, parental involvement, alternative education programs, and other forms of positive reinforcement. In addition, suspensions and/or expulsions are available as administrative disciplinary actions depending of the severity of the misconduct. Procedures are in place for students to make up any work missed while on suspension, or to participate in an alternative program if recommended for expulsion.[2] Respondent has been employed as a teacher by the School Board since 1994. He has a professional service contract of employment with School Board. From 1994 through 2000, Respondent was assigned to Central, where he taught emotionally disturbed and severely emotionally disturbed students. He had an unblemished disciplinary and performance record at Central. Respondent was reassigned from Central to American, where he remained until August of 2001, when he was "placed in an alternative work assignment at Region I" pending the disposition of charges against him. At American, Respondent taught emotionally handicapped (EH) students. Among the students in his classes were O. A., V. S., C. H., T. S., R. D., and A. D. At all times material to the instant case, Nanci Clayton also taught EH students at American.3 She had some of the same students in her classes that Respondent had in his. At the beginning of the 2000-2001 school year, Ms. Clayton and Respondent had paraprofessionals in their classrooms. The paraprofessionals, however, were removed from their classrooms after the first grading period. Ms. Clayton's and Respondent's classrooms were located in one "very large [room] divided in half [by a makeshift partial partition4] to make two classrooms."5 This partial partition consisted of bookcases, a blackboard, filing cabinets, and, at times, a table. To enter and exit Respondent's classroom, it was necessary to pass through Ms. Clayton's classroom, where the door to the hallway was located. There was no direct access to the hallway from Respondent's classroom. Ms. Clayton's desk was located immediately to the left of the door as one walked into her classroom from the hallway. Students leaving Respondent's classroom had to pass by Ms. Clayton's desk to get to the hallway. The "divided room" that Ms. Clayton and Respondent shared had a "phone line," but no School Board-supplied telephone. Ms. Clayton and Respondent had to supply their own telephone. "Sometimes [the telephone] would work, sometimes it wouldn't work." There was no "emergency" or "call" button in the room. There were occasions when Ms. Clayton and Respondent "conduct[ed] [their] lessons simultaneously in this divided room."6 Things said in one of the classrooms could, at times, be heard in the other classroom. It is not uncommon for EH students to have mood swings, to become easily frustrated and angered, to be verbally and physically aggressive, to engage in off-task behavior, and to defy authority. Controlling the behavior of these students in the classroom presents a special challenge. As EH teachers at American, Ms. Clayton and Respondent were faced with this challenge. It was their responsibility to deal with the behavioral problems exhibited by their students during the course of the school day while the students were under their supervision. American had a Behavior Management Teacher, David Kucharsky, to assist the school's EH teachers in dealing with serious or chronic behavioral problems. There were far fewer instances of disruptive student behavior in Ms. Clayton's classroom than in Respondent's. While in Respondent's class, some students would do such things as throw books and turn the lights off. Ms. Clayton, however, would not "have the same kind of problems" with these students when she was teaching them. Ms. Clayton "made recommendations" to Respondent to help him better control the behavior of students in his classes. As a teacher at American, Respondent was a member of a collective bargaining unit represented by the United Teachers of Dade (UTD) and covered by a collective bargaining agreement between the School Board and UTD, effective July 1, 1999, through June 20, 2002 (UTD Contract). Article V of the UTD Contract addressed the subject of "employer rights." Section 1 of Article V provided, in part, that the School Board had the exclusive right to suspend, dismiss or terminate employees "for just cause." Article XXI of the UTD Contract addressed the subject of "employee rights and due process." Section 2 of Article XXI provided, in part, that "[d]ismissals and suspensions shall be effected in accordance with applicable Florida statutes, including the Administrative Procedures Act (APA) " Article VIII of the UTD Contract addressed the subject of a "safe learning environment." "Student discipline" was discussed in Section 1 of Article VIII, which provided, in part, as follows: Section 1. Student Discipline A safe and orderly learning environment is a major priority of the parties. Such an environment requires that disruptive behavior be dealt with safely, fairly, consistently, and in a manner which incorporates progressive disciplinary measures specified in the Code of Student Conduct. Rules governing discipline are set forth in the Code of Student Conduct, School Board Rules, and Procedures for Promoting and Maintaining a Safe Learning Environment and, by reference, are made a part of this Contract. * * * D. The parties recognize the potential for difficult circumstances and problems related to the use of corporal punishment. Accordingly, the parties agree that such punishment shall be prohibited as a disciplinary option, and further agree to act affirmatively in continuing to identify and implement more effective alternatives for dealing with student behavior. The involvement of school-site personnel in developing such alternatives is critical to their potential for success. The teacher shall have the authority to remove a seriously disruptive student from the classroom. In such cases, the principal or designee shall be notified immediately and the teacher shall be entitled to receive prior to or upon the student's return to the classroom, a copy of the Student Case Management Form (SCAM) describing corrective action(s) taken. . . . "Physical restraint" and its use, in certain circumstances, on students receiving exceptional student education services was discussed in Section 3 of Article VIII, which provided as follows: Section 3. Physical Restraint There are instances where exceptional students exhibit behaviors that are disruptive to the learning environment and pose a threat to the safety of persons or property. Some exceptional students because of the nature of their disability, may, on occasion, experience impaired impulse control of such severity that the use of physical restraint is necessary to prevent such students from inflicting harm to self and/others, or from causing damage to property. The purpose of physical restraint is to prevent injury to persons or destruction of property. It is not to be used to "teach the child a lesson" or as punishment. For students who exhibit such behaviors, the use of physical restraint procedures shall be discussed as part of the Individualized Education Program (IEP) development and review process. A recommendation for the use of Board-approved physical restraint procedures must be made by the Multi-Disciplinary Team (M-Team) and shall be documented on the student's IEP form before the use of such procedures may be authorized. When parents or surrogates are not present at the IEP meeting, written notification to them regarding the use of physical restraint will be provided. Strategies for the prevention of aggressive behavior shall be utilized on an ongoing basis. However, when an explosive event occurs without warning and is of such degree that there is imminent risk to persons or property, the use of physical restraint technique is authorized for such circumstances. Subject to available funding, the Board shall provide for the training of instructional and support staff in physical restraint techniques, as well as strategies for prevention of aggressive behavior. Training manuals developed for this purpose are, by reference, incorporated and made a part of this Agreement. Physical restraint techniques provided in training programs approved by the Board are authorized and, when utilized in accordance with the training provided and these guidelines, shall not constitute grounds for disciplinary action. If a teacher is not trained in the use of approved physical restraint procedures and is faced with an emergency, the teacher is authorized to employ the moderate use of physical force or physical contact as may be necessary to maintain discipline or to enforce Board Rules 6Gx13-5D-1.07 and 1.08.[7] The appropriate use of these procedures shall not constitute a violation of the corporal punishment policy (Board Rule 6Gx13-5D-1.07). Physical restraint refers to the use of physical intervention techniques designed to restrict the movement of a student in an effort to de-escalate aggressive behavior. In order to promote a safe learning environment, the district has authorized the implementation of specific physical restraint procedures to be used in Exceptional Student Education programs when a student's IEP documents the potential need for their use. These procedures include, but are not limited to, holding and escape techniques which, when implemented, prevent injury to students and staff or prevent serious damage to property. Specific physical restraint procedures may also be approved for use with other specific student populations, upon mutual agreement of the parties and would be reviewed on an annual basis. The use of physical restraint must be documented as part of the SCM system. Instructional or support staff who utilize physical restraint techniques shall complete the SCM Student Services Form to record student case information regarding each incident. Directions shall be provided to instructional and support staff to assist them in completing the appropriate form. At all times material to the instant case, the Individualized Education Program for each of the students in Respondent's classes "document[ed] the potential need for the[] use" of the School Board-approved "physical restraint techniques" referenced in Section 3 of Article VIII of the UTD Contract. Respondent received training in 1994 in the use of these techniques. At another in-service training session that he attended when he was teaching at Central, the head of the school's program for emotionally disturbed and severely emotionally disturbed students spoke about the "preventative strategies" of "planned ignoring" and "proximity control" and gave to the attendees, including Respondent, a handout, which stated the following about these "preventative strategies": Planned Ignoring Inappropriate behavior is ignored and not reinforced by staff by not reacting or responding to specific disruptive activity of a student in anticipation that the inappropriate behavior will extinguish or subside without further [sic]. The second part of this intervention is to reinforce positively acceptable behavior in anticipation that this behavior will occur more frequently. Proximity Control This intervention takes advantage of the positive effect of using a nonverbal communication such as gestures, looks, or body postures to decrease inappropriate classroom behavior. As an additional measure, physical contact in the form of a hand on the student's shoulder or a squeeze of an arm, can be very supportive to the student, yet convey the message that certain behaviors will not be tolerated. Respondent employed these "preventative strategies" at Central and was never disciplined for doing so. At American, Respondent was involved in several incidents in which he used physical force against students. On February 28, 2001, Respondent was at his desk teaching a class when one of the students in the class, V. S., got out of his seat and started "knocking on the T.V." that was in the classroom. V. S. was a "very large student" who, on a previous occasion, had "threatened to take [Respondent's] head and push it through a plate-glass window" and, on other occasions, had told Respondent: We are going to get you white man. We are going to make you quit. We are going to get you fired.[8] Respondent told V. S. to take his seat. V. S. refused. Instead, he sat down on Respondent's desk and "leaned over toward [Respondent]," positioning his face "about a foot" from Respondent's. V. S. was "glaring down at [Respondent]" and had a "tight-lipped grin" on his face. This made Respondent feel "a little edgy." After directing V. S. to "get off [the] desk" and receiving "no response," Respondent (rather than getting up from his seat and walking away from V. S.) "reached out and gave [V. S.'s] arm a shake" in order "to get [V. S.'s] attention."9 Respondent obtained the result he desired. V. S. got off the desk; but he did not do so quietly. V. S. yelled profanities at Respondent and threatened to "kill" Respondent if Respondent ever touched him again. Prior to Respondent shaking his arm, V. S. had not made, during the incident, any verbal threats against Respondent. The incident was reported to the administration and the matter was investigated. Respondent, V. S., and another student, C. H., who witnessed the incident, gave written statements that Mr. Rodriguez reviewed. On March 15, 2001, after reviewing the statements, Mr. Rodriguez held a Conference-for-the-Record with Respondent. Mr. Rodriguez subsequently prepared (on March 21, 2001) and furnished to Respondent (on that same date) a memorandum, in which he summarized what had transpired at the conference. The memorandum read as follows: The following is a summary of the conference-for-the-record on Thursday, March 15, 2001, at 2:00 p.m. in this administrator's office. Present at the conference were Mark Soffian, assistant principal; Karen Robinson, assistant principal; Jimmy Jones, UTD Representative; yourself and this administrator. The purpose of the conference was to address the following: -Miami-Dade County School Board Police Case #F-09343. -Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida. -School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited). -School Board Rule 6Gx13-4A-1.21 (Employee Conduct). -Review of the record. -Future employment with Miami-Dade County Public Schools. This administrator began the conference by reviewing Case #F-09343. This administrator read your statement and the statements of the students alleging battery on a student. This administrator asked you if you had any comments in reference to the incident. You stated that you had to write up everyone in class, because students were turning off the lights and throwing books in the dark despite repeated warnings. You characterized this student behavior as "organized disruption." You further stated that another student was tormenting a classmate who shrieked out in pain, ran out of class and then was dragged back in by the same student. You described that another student was banging on the television and you had to write him up. You said you did not push [V. S.] (victim-I.D. #427561) but rather he leaped off the desk, shouted a tirade of curses at you and then left class. You indicated that you did not push because you were unable to move an 18 year old who is 260 pounds.[10] This administrator asked if you ever left your class unsupervised. You stated, "Yes, from time to time." This administrator cautioned you that one of your professional responsibilities is never to leave your students unsupervised. Additionally, the fact that you described the numerous classroom discipline problems, it is of the utmost importance that your students remain supervised at all times. This administrator reviewed with you the Code of Ethics and Principles of . . . Professional Conduct of the Education Profession in Florida. This administrator specified certain areas of the Code of Ethics in which you were in violation. This administrator asked you to respond and you nodded your head in the affirmative. This administrator reviewed with you Miami- Dade County School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited). You were asked if you understood and you responded "Yes." This administrator reviewed with you Miami- Dade County School Board Rule 6Gx13-4A-1.21 (Employee Conduct). This administrator reminded you that you are expected to conduct yourself, both in your employment and in the community, in a manner that will reflect credit upon yourself and the school system. You were asked to respond and you stated "I understand." This administrator conducted a review of the record. There was another incident involving the use of improper force and disciplinary means against a student that was cited on November 11, 2000. The case (F-03631) was never pursued; however, this administrator cautioned you that these past episodes demonstrate use of poor judgment on your part. This administrator informed you that repeated offenses would result in further disciplinary actions that will negatively impact your future employment with Miami- Dade County Public Schools. This administrator then asked if you had any further comments or statements for the record. You requested that a handout on "preventative strategies" and Florida Statute Chapter 232.27[11] be included as part of the written summary. You further stated that you didn't claim to be perfect and there was room for improvement. You stated that teaching six periods made it difficult to do the job effectively. This administrator asked if you wanted to give up the sixth period supplement since if was your choice to take on that added teaching responsibility for remuneration. You stated that you did not want to give up the money. This administrator advised that you cannot use the sixth period day as an excuse, and if it is a hardship where you are unable to perform your prescribed duties th[e]n you need to let this administrator know. Additionally, this administrator informed you that writing referrals to exclude seven or eight students in your Exceptional Education class was unacceptable. This administrator recommended for you to acquire additional training in dealing with Emotional Handicapped students. Seeking alternative means of discipline in lieu of suspension and exclusion from class will be necessary. This administrator provided you with Miami-Dade County School Board Manual of Procedures for Special Programs to assist you in managing your classroom and providing appropriate strategies in handling Exceptional Education students.[12] This administrator issued you the following directives: -Refrain from using any physical means to enforce student discipline. -Adhere to Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida. -Adhere to School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited). -Adhere to School Board Rule 6Gx13-4A-1.21 (Employee Conduct). -Refrain from leaving students in the classroom unsupervised. In closing, this administrator informed you that failure to comply with these directives and recurrences of this type will result in further disciplinary action which will adversely affect your future employment status. This administrator stated that he would be available to provide[] you any assistance that you may require. In conclusion, you are apprised of your right to append, clarify, or explain any information recorded in this conference by this summary. Attached to the memorandum were copies of the Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida (which are found in Rules 6B-1.001 and 6B- 1.006, Florida Administrative Code), School Board Rule 6Gx13-5D- 1.07, School Board Rule 6Gx13-4A-1.21, the handout on "preventative strategies" that Respondent had received at Central, and the cover page, as well as pages 119 and 121, of the Miami-Dade County School Board Manual of Procedures for Special Programs referenced in the memorandum. Page 121 of the Miami-Dade County School Board Manual of Procedures for Special Programs manual read as follows: Some exceptional students because of the nature of the disability, may on occasion experience impaired impulse control of such severity that the use of physical restraint is necessary to prevent such students from inflicting harm to self and/or others, or from causing damage to property. The purpose of physical restraint is to prevent injury to persons or destruction of property. It is not to be used to "teach the child a lesson" or as punishment. For students who exhibit such behaviors, the use of physical restraint procedures shall be discussed as part of the IEP development and review process. A recommendation for the use of Board-approved physical restraint procedures must be made by the Multidisciplinary Team (M-Team) and shall be documented on the student's IEP form before the use of such procedures may be authorized. When parents or surrogates are not present at the IEP meeting, written notification to them regarding the use of physical restraint will be provided. Strategies for the prevention of aggressive behavior shall be utilized on an ongoing basis. However, when an explosive event occurs without warning and is of such degree that there is imminent risk of persons or property, the use of physical restraint techniques is authorized for such circumstances. The School Board shall provide for the training of the appropriate instructional and support staff in physical restraint techniques, as well as strategies for the prevention of aggressive behavior. Training manuals developed for this purpose are available at school sites. Physical restraint techniques provided in training programs approved by the Board are authorized and, when utilized in accordance with the training provided, these guidelines shall not constitute grounds for disciplinary action. If a teacher is not trained in the use of approved physical restraint procedures and is faced with an emergency, the teacher is authorized to employ the moderate use of physical force or physical contact as may be necessary to maintain discipline or to enforce School Board Rules 6Gx13-5D-1.07 and 1.08. The appropriate use of these procedures[13] On May 2, 2001, Respondent again used non-approved "physical means to enforce student discipline," notwithstanding the reasonable directive that he had been given by Mr. Rodriguez at the March 15, 2001, Conference-for-the-Record that he "refrain" from engaging in such conduct. That day, students in Respondent's third period class, including T. S., R. D., and O. A., were scheduled to take the Scholastic Reading Inventory Test (SRI). The SRI is a standardized test designed to measure students' reading skills. The results of the test are "used to guide classroom instruction, so it is considered [to be a] low- stakes" test. Respondent had received in-service training, prior to May 2, 2001, on how to administer the SRI. It was emphasized during the training that, for the SRI "to be an effective test, [it had to] be protected from [pre-test administration] dissemination" and that it was important for teachers administering the test to make sure their students returned all test materials "at the end of the test period" and did not leave the test site with these materials. At the training, Respondent was given a document which contained standards for "test administration and test security." These standards provided, in part, as follows: STANDARD: PROFESSIONAL OBLIGATIONS IN THE IMPLEMENTATION OF THE TESTING PROGRAM AT THE SCHOOL LEVEL . . . . The test administrator is responsible for directing and conducting the testing session(s) as specified in the administration manual or program guide, strictly adhering to test directions, monitoring students during testing, and maintaining the security of test materials assigned to him/her. . . . STANDARD: TEST SECURITY PROCEDURES FOR THE DISTRIBUTION AND RETURN OF TEST MATERIALS Each principal or designee is responsible for the receipt, inventory, secure storage, distribution, collection, and return of all test booklets and test-related material assigned to that school, according to the directions and instructions specified in the administration manuals or program guides. The principal or designee must notify the Division of Student Assessment and Educational Testing immediately if any discrepancies are noted in the counts, or if any materials are missing. The principal or designee must advise all teachers of the rules relating to test security and of the importance of complete adherence to them. Adherence to these test security procedures for the distribution and return of test materials, before, during, and after testing will ensure that: students do not have access to any of the material prior to the actual exam time or following it; professional staff have access to the test booklets, test folders, questions, and/or reading passages only at the time necessary for administration purposes; test booklets and test materials are returned to the test chairperson at the end of each testing session; and nothing has occurred in the school to allow unauthorized access to any of the test materials at any time. . . . STANDARD: MAINTAINING STANDARDIZATION AND TEST SECURITY DURING TEST ADMINISTRATION . . . . Students must have access to test booklets, test folders (i.e., test questions) ONLY during the actual administration of the test. Test materials must be secured at all times. Materials must be handed directly to and collected from each student one at a time. If a student needs to leave the test room, his/her materials must be collected and held upon the student's return[;] the test administrator must ensure that the student receives only his/her own test materials. Test administrators and proctors must actively monitor students during the entire testing period by walking around the room, to ensure compliance with test directions and to prevent cheating. Any irregularities or problems with the test administration must be promptly reported to the test chairperson, the school-site administrator, and district staff. . . . Test administrators, proctors, and any other school or district staff involved in test administration are required to adhere to guidelines laid out in the Florida Test Security Statute, Section 228.301[14] and the FDOE State Board of Education Administration Rule 6A-10.042, Maintenance of Test Security,[15] as well as district policy and board rule regarding test security. Violations of test security provisions shall be subject to penalties as provided in statute and FDOE State Board of Education Administrative Rules. . . . After Respondent handed out the test materials to the students in his third period class on May 2, 2001, and provided them with instructions regarding the test, T. S., who was seated in the back row of the classroom, asked Respondent several questions about the test. Dissatisfied with Respondent's responses, T. S. got out of his seat and, with the test booklet and answer sheet in hand, headed towards Ms. Clayton's classroom to see if she could provide him with the information that he was seeking about the test. On a regular basis, T. S. would leave Respondent's classroom, without permission, before the end of the period and go into the hallway. Concerned that T. S. would go out into hallway with the test materials, Respondent followed T. S. T. S. was near the partial partition dividing Respondent's and Ms. Clayton's classrooms, facing Ms. Clayton, when Respondent caught up to T. S. T. S. started to ask Ms. Clayton a question, when he was interrupted by Respondent, who instructed T. S. to give him the test materials. Respondent had positioned himself so that he was in front of T. S. and "close enough to touch" him. T. S. did not hand over the test materials to Respondent; instead, he asked Respondent "to give him some space." Respondent, however, held his ground and again "asked for the test materials back." T. S. refused to return the test materials to Respondent, telling Respondent he was "just asking a question." Respondent then started to reach for the test materials in an effort to grab them out of T. S.'s hand. T. S. reacted by moving the hand in which he was holding the test materials away from Respondent so that Respondent would not be able to take the materials from him. During the scuffle, Respondent grabbed ahold of T. S.'s shirt and "pulled" it. He also bumped into T. S. as he was reaching for the test materials in T. S's hand. Upset that Respondent was "over [him], touching [him]," T. S. ripped up the test materials and threw the pieces at Respondent. He was going to hit Respondent, but was subdued by a classmate, R. D. He then walked out the door and into the hallway. Respondent returned to his classroom and went back to his desk. He was followed by R. D., who told Respondent that he "need[ed] to chill out." While talking to Respondent, R. D. put his hands on Respondent's desk. Respondent told R. D., "get your hands off my desk." Using his hand, Respondent then forcibly moved R. D.'s hands off the desk. What occurred during Respondent's third period class on May 2, 2001, was reported to the administration and the matter was investigated. Written statements from Respondent, Ms. Clayton, and T. S., as well as other students, were collected and reviewed as part of the investigation. Mr. Rodriguez scheduled a Conference-for-the-Record with Respondent for June 11, 2001. Before the conference was held, Respondent was involved in yet another incident in which he used physical force against a student in his class. The student on this occasion was A. D., and the incident occurred on June 7, 2001, at around 9:30 a.m. or 9:45 a. m., near the end of the first (two hour) class period of the school day. A. D. had engaged in disruptive behavior in Respondent's classroom before walking out of the classroom and into the hallway towards the end of the period. As A. D. was leaving, Respondent told him, "If you leave before the bell rings, I am not letting you back in this time." (This was not the first time that A. D. had walked out of Respondent's class before the period was over.) Deanna Lipschutz, a clerical employee assigned to American's exceptional student education department, saw A. D. in the hallway. A. D. was "walking around in circles," but he was not "out of control." Ms. Lipschutz approached A. D. and, after engaging in a brief conversation with him, escorted him back to Respondent's classroom. The door to the classroom was closed. Ms. Lipschutz knocked on the door. When Respondent opened the door, Ms. Lipschutz told him that A. D. "would like to come back in class." Respondent indicated that he would not let R. D. return. Respondent then took his hands, placed them on A. D.'s shoulders, and gave A. D. a "little push." A. D. stumbled backwards. There was a wall behind A. D. that A. D. nearly made contact with as he was stumbling backwards. After pushing A. D. away from the doorway, Respondent went back inside the classroom and closed the door. Respondent's use of physical force against A. D. on June 7, 2001, was reported to the administration and an investigation of the matter was commenced. This was the last of the incidents (specified in the School Board's Notice of Specific Charges, as amended) involving Respondent's use of physical force against a student. Respondent's use of physical force in each of these incidents (the February 28, 2001, incident with V. S.; the May 2, 2001, incidents with T. S. and R. D.; and the June 7, 2001, incident with A. D.) was contrary to School Board policy and unauthorized and, moreover, evinced poor judgment and a lack of adequate concern for the physical well-being of the EH student involved in the incident. In none of these incidents was the physical force Respondent used reasonably necessary to prevent physical harm to himself, the student involved in the incident, or anyone else, or to prevent the destruction or serious damage of property. Respondent did not use School Board-approved "physical restraint techniques" (which are referenced in Section 3 of Article VIII of the UTD Contract) in any of these incidents. Rather, he used physical methods that were more likely to provoke, than deter, aggressive student behavior and, in so doing, created conditions harmful to the exceptional education students in his charge. Furthermore, Respondent's use of these methods in the incidents involving T. S., R. D., and A. D. was in defiance of directives he had been given by Mr. Rodriguez during the March 15, 2001, Conference-for-the-Record. It is true that Respondent did not have an easy teaching assignment. He had students in his class who, because of their disability, made teaching quite difficult. As a certified EH teacher, however, Respondent should have been equipped to deal with these students' disruptive behavior without resorting to the use of unauthorized physical force. Respondent's repeated use of such force was so serious as to impair his effectiveness as an EH teacher. The Conference-for-the-Record with Respondent that Mr. Rodriguez had scheduled for June 11, 2001, was held as scheduled on that date. Mr. Rodriguez subsequently prepared (on June 13, 2001) and furnished to Respondent (on that same date) a memorandum in which he summarized what had transpired at the conference. The memorandum read as follows: The following is a summary of the conference-for-the-record on Monday, June 11, 2001, at 8:00 a.m. in this administrator's office. Present at the conference were: Karen Robinson, assistant principal; Mark Soffian, assistant principal; Jimmy Jones, UTD Representative; Sherri Greenberg, UTD Bargaining Agent Representative, yourself and this administrator. The purpose of the conference was to address the following: -Miami-Dade County School Board Police Case #F13868 (Substantiated) -Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida -School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited) -School Board Rule 6Gx13-4A-1.21 (Employee Conduct) -Review of the record -Future employment with Miami-Dade County Public Schools This administrator began the conference by reviewing written statements from several students, a teacher and yourself in the School Board Case #F13868. This administrator informed you that your actions were in violation of School Board Rule 6Gx13-5D-1.07 of using corporal punishment and inappropriate physical restraint as a means of disciplining your students. This administrator asked if you had a response to these statements. You stated that you had seven years of university training and a master's in SED and you had a perfect record of no incidents at Miami Central High School. You requested to read a letter from Clifford Golden, School Psychologist, that you wished to be included in the record's summary. Additionally, you stated that "I had no problems until I came to American and it has been a difficult situation. When I first got here, you told me at a staff meeting about an ongoing LED conspiracy." This administrator corrected you about the contents of my statement as saying that "there was never a mention of a conspiracy; however, I was concerned with the quality of instructional delivery in the Exceptional Education department." You continued stating that your colleagues were less than helpful, and that no one came to your class, and that Mr. Kucharsky, Behavior Management Teacher, did not show consistent discipline. This administrator informed you that when he visited you classroom during second period, he observed on several occasions that on one side of the room with another teacher there were students learning; however, on your side there was bedlam. Dr. Soffian indicated when he visited your class on three occasions, he observed your room to be in disarray, with books on the floor, desks overturned and students not engaged in any productive activity. Mr. Jones also indicated upon his visitation, he observed that your kids were "out of control." You responded that "I have frequent misbehavior from that class but no one provided any consequences when I wrote them up." This administrator then reviewed with you the State Board of Education Rule, Code of Ethics (6B-1.001, 6B-1.006). This administrator read to you that your obligation to the student requires that "you shall make reasonable effort to protect the student from conditions harmful to learning, to the student's mental and/or physical health and/or safety." This administrator reminded that this is the second time he is issuing you this material and as a professional teacher you are obligated to comply with this code. You responded by saying you disagreed with the statement of using corporal punishment and that due to the classroom not having ventilation and being an old chorus room exacerbates the problem. This administrator reviewed your record, citing a pattern of putting your hands on students. This administrator reviewed with you two other incidents of unnecessary physical contact of your students (Miami- Dade County Police Cases #F03631 & F09343). This administrator read to you Part III, page 121, from the handout of Special Programs and Procedures for Exceptional Students (6Gx13-6A-1.331): "Some exceptional students because of the nature of the disability, may on occasion experience impaired impulse control of such severity that the use of physical restrain[t] is necessary to prevent such students from inflicting harm to self and/or others, or from causing damage to property." This administrator stated that your actions were not justified because the student was not doing any of the above. You responded that you disagreed with the findings. You felt that the student leaving with the test booklet caused you to physically intervene and you interpreted this action as preventing property damage. You further commented that you were a seasoned professional and that you have never hurt a student in your entire professional career. In the other cases, you stated that you were the victim and sometimes it is necessary to intervene to protect their health and safety. This administrator referred you to the District's Support Agency Program. This administrator informed you that this supervisory referral is strictly voluntary and that you will be contacted by that office. You stated that you certainly would pursue this. This administrator reviewed with you your Annual Evaluation for the 2000-2001 school year. This administrator explained that Categories I-VI were acceptable; however, Category VII, Professional Responsibilities, was unacceptable.[16] This administrator issued you and explained the prescription and the unacceptable Annual Evaluation. This administrator also explained to you that this prescriptive status would freeze your salary, revoke your transfer request, and exclude you from summer employment. You asked if your salary would be retroactive and if you would be able to transfer after the prescription date. This administrator informed you that after you have met your prescription requirement then you would be free to transfer and your salary will be reinstated and retroactive to the beginning of the 2001-2002 school year. This administrator asked if anyone had any other questions. Ms. Sherrie Greenberg, UTD representative, suggested that you receive training in physical restraint the next time it is offered. This administrator agreed with that suggestion as soon as a class opens. Ms. Greenberg also suggested to you that the District's Emotionally Handicapped supervisor visit your classroom at the beginning of the school year and provide assistance as needed. This administrator agreed with this suggestion of any additional support to improve classroom management. This administrator reminded you that per your request, your six period schedule during this second period class was changed to a five-period day. This administrator issued you the following directives: -Refrain from using any physical means to enforce student discipline, particularly if the student(s)' or your safety [is] not endangered and/or damage of property is not imminent -Adhere to Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida -Adhere to School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited) -Adhere to School Board Rule 6Gx13-4A-1.21 (Employee Conduct) In closing, this administrator informed you that this is the second time a conference- for-the-record has been held with you concerning the same issues. Due to your failures to comply with the previous directives, this administrator deemed this behavior as insubordination. This administrator indicated that continued failure to comply with these directives and recurrences of this type would result in further disciplinary action which will adversely affect your future employment status. This administrator stated that he would be available to provide you any assistance that you may require. In conclusion, you are apprised of your right to append, clarify, or explain any information recorded in this conference by this summary. The "prescription" that Mr. Rodriguez issued for Respondent indicated that Respondent would be in "prescriptive status" from August 27, 2001, through November 1, 2001. Respondent, however, did not return to the classroom during the 2001-2002 school year. Shortly before the beginning of the 2001-2002 school year, Dr. Thomasina O'Donnell, a director in the School Board's Office of Professional Standards, conducted a Conference-for- the-Record with Respondent, at which she discussed Respondent's use of physical force against students at American, including the June 7, 2001, incident with A. D., and his future employment with the School Board. Dr. O'Donnell subsequently prepared (on August 27, 2001) and mailed to Respondent (on August 28, 2001) a memorandum in which she summarized what had transpired at the conference. In those portions of the memorandum addressing the "action taken" and the "action to be taken," Dr. O'Donnell wrote the following: Action Taken In consideration of this incident and conference data, you were placed in an alternate work assignment at Region I until disposition of the charges are determined . You were advised of the availability of services from the District's referral agency. You were also provided the option to resign your position with Miami-Dade County Public Schools which you declined at this time. Pending further review of this case and formal notification of the recommended action or disciplinary measures to be taken, these directives are reiterated upon your return to the worksite to prevent adverse impact to the operation of the work unit and to the services provided to students. Noncompliance with these directives will necessitate review by the Office of Professional Standards. Refrain from using physical means to effect discipline. Adhere to all School Board Rules and the Code of Ethics. Supervise assigned students at all times. During the conference, you were provided with a copy of School Board Rules 6Gx13-4A- 1.21, Responsibilities and Duties; 6Gx13-5D- 1.07 Corporal Punishment-Prohibited; and Chapter 6B-1.0[0]1(3), Code of Ethics of the Education Profession in Florida. You were advised of the high esteem in which teachers are held and of the District's concern for any behavior which adversely [a]ffects this level of professionalism. You were reminded of the prime directive to maintain a safe learning environment for all students and that your actions violated this directive. You were advised to keep the information presented in this conference confidential and not discuss this with students or staff. Action To Be Taken You were advised that the information presented at this conference, as well as subsequent documentation, would be reviewed with the Assistant Superintendent in the Office of Professional Standards, the Superintendent of Region I, and the Principal of American Senior High School. All investigative data will be transmitted to Professional Practices Services (PPS), Florida Department of Education, for review and possible licensure action by the Education Practices Commission (EPC). Upon completion of the conference summary, a legal review by the School Board attorneys would be requested. Receipt of legal review with the endorsement by the Region Superintendent will compel formal notification of the recommended action or disciplinary measures to include suspension or dismissal. A determination was made that Respondent "be recommended for dismissal for the following charges: Just cause, including but not limited to: misconduct in office, gross insubordination, and violation of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties, and 6Gx13-5D-1.07 Corporal Punishment-Prohibited." On September 25, 2001, Dr. O'Donnell held a Conference-for-the-Record with Respondent to discuss this recommendation. At its October 24, 2001, meeting, the School Board took action to "suspend [Respondent] and initiate dismissal proceedings against [him] from all employment by the Miami-Dade County Public Schools, effective the close of the workday, October 24, 2001, for just cause, including but not limited to: misconduct in office, gross insubordination, and violation of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties, and 6Gx13-5D-1.07, Corporal Punishment-Prohibited."17
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating his employment as a professional service contract teacher with the School Board for the reasons set forth in the Notice of Specific Charges, as amended. DONE AND ENTERED this 14th day of August, 2002, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 14th day of August, 2002.
The Issue The issue for consideration in this matter is whether Respondent's certification as a teacher in Florida should be disciplined because of the matters set forth in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner was the official responsible for the certification of teachers and educational professionals in this state. The Respondent was certified as a teacher in Florida by certificate No. 615085, covering the areas of guidance, physical education and health education, and which is valid through June 30, 1993. During the 1990 - 1991 school year, Respondent was employed as a teacher of exceptional education math and social studies at Charles R. Drew Middle School, a school under the administration of the School Board of Dade County. Respondent has taught for between 11 and 12 years and took the course in crisis prevention and intervention offered by the National Crisis Preventon Institute in 1988. In September, October and November, 1991, Respondent was teacing exceptional math and social science to classes of between 4 and 7 students, all of whom were classified as either educable mentally handicapped, learning disabled, or emotionally handicapped. He had neither teaching aides nor assistants. In order to keep the class size small, the instructors in these classes were required to forego their planning period and spend that period in the classroom setting. On or about September 26, 1991, between the 4th and 5th class periods, Respondent was standing out in the hallway of the school, positioned in such a way that he could monitor the students' behavior in the hall as well as in his classroom. He heard a confrontation arise between K.G., a minor male student, and M.B., a minor female student. He went into the room and saw the two students screaming at and hitting each other. Though he told them to quiet down, they did not do so and he stepped in and broke up the fight, sending each student to his/her respective seat. Since their seats were near to each other in the back of the room, he removed K.G. to the front to the room to put as much distance between them as was possible. The two students still continued their verbal assaults on each other regardless of his efforts so he again stepped in and settled them down. Having determined that the argument arose out of M.B.'s accidentally stepping on K.G.'s sore foot, he advised K.G. that hitting was no basis for settling any dispute. K.G. allegedly responded that he hit anyone he wanted at any time. As Respondent subsequently crossed the room, he accidentally bumped K.G's foot which, he claims, K.G. shoved out in front of him. When he did, K.G. came out of his chair, struck Respondent twice in the stomach, and kicked him in the shin. K.G., who was not present to testify, claimed that Respondent intentionally stepped on his foot. This evidence is hearsay and no other direct evidence on the matter was offered. It is found, therefore, that if Respondent did come in contact with K.G.'s foot, the contact was accidental and not intentional. Regardless of the prompting, there is little question that K.G. struck the Respondent in the stomach and when he did, Respondent, applying the techniques for crisis prevention and intervention he had been taught, took K.G. to the floor with his arm behind him and sent another student for security. As a result of this altercation, K.G. was not injured at all but Respondent had to see a doctor for the blows to the stomach and the kick to the shins. He was given two days off from work to recuperate and offered more if he needed it. From that point on, K.G., who within two weeks of the incident, handed Respondent a letter of apology, was one of the best behaved students in the class. In addition, he was one of the two students who gave Respondent a Christmas present that year. He was subsequently removed from Respondent's class and from the school, but that departure was voluntary and had nothing to do with the altercation described above. When the matter was reported to Ms. Annunziata, the school board's Director of Professional Standards, she decided that an administrative review of the incident was sufficient action. The memorandum of understanding between Respondent and the school principal, Ms. Grimsley, regarding the incident, referred him to procedures for handling student discipline and commented on the need to use sound judgement and call school security before a situation escalated into a physical confrontation between the teacher and a student. Less than a month later, on October 15, 1991, Respondent was putting some information on the blackboard during class when another student, A.C. came up and stood beside him close enough to interfere with his work. He moved to another section of the board, and noting that A.C. had a toothpick in his mouth, directed him to resume his seat and remove the toothpick. A.C. did as he was told, but immediately came back up and stood beside the Respondent with another toothpick in his mouth. Again Respondent directed the student to sit down and take the toothpick out of his mouth, and the student did as told. However, he shortly again came up to stand near Respondent at the board with a toothpick in his mouth, so close as to cause concern in Respondent for the safety of his eye. Having already told the student to sit down and remove the toothpick twice without lasting success, Respondent reached over and took the tooth pick out of the student's mouth. A.C. claims that in doing so, Respondent grabbed his lips, but this is doubtful. The other student called to testify about this incident was not clear on details and it is found that while Respondent removed the toothpick from A.C.'s mouth, he did not grab the student's lips. In any case, however, the student reacted violently. Respondent again told the student to sit down but he refused and shouted he was leaving. Respondent asked another student to go for security since there was neither an intercom system nor a workable phone in the room, but no one did. A.C. started out of the room and on his way, veered over to where the Respondent stood and struck him in the rib cage with his elbow. At this Respondent, again using the CPI techniques he had been taught, took A.C. down to the floor and, holding the student's arms behind his back, opened the door and called for help. A teacher from another classroom came into the room and took A.C. to the school office. Shortly thereafter, Ms. Grimsley, the Principal, heard a teacher trying to calm A.C. down after what she was told was an incident with the Respondent. In her discussion with the student he told her that Respondent had hit him in the mouth, thrown him to the floor, and pulled his arm up behind his back. An investigation into this incident was reportedly conducted by the school administration. Thereafter, a conference was held in the Dade County Schools' Office of Professional Standards, attended by Respondent; Ms. Grimsley; Ms. Menendez, Coordinating Principal; the Union representative; and Ms. Annunziata, Director of the Office of Professional Standards, to discuss, inter alia, this alleged battery and Board policies and rules regarding discipline. A copy of the report was given the Respondent and he was afforded an opportunity to respond to the allegations. He denied using intentional restraint on A.C., and when asked why he had not called security, pointed out that all prior efforts to seek security assistance were met with no response. Thereafter, on February 26, 1991, he was administered a letter of reprimand by Ms. Grimsley. This reprimand indicated he had violated the provisions of the teacher contract as well as the School Board Rules and that he was being rated as unacceptable in Category VII, Professional Responsibilities, of the TADS. Neither the memo of the conference nor the letter of reprimand reflect any specific findings of fact regarding the incident. Only the conclusion that Respondent inappropriately disciplined a student is listed as a reason for the reprimand. Respondent accepted the Reprimand on March 1, 1991 without exception. A.C.'s disciplinary record for the months of the pertinent school year prior to the incident in question, maintained by school authorities, reflects that on September 5, 1990, he was the subject of a parent conference because of his general disruptive conduct and his defiance of school authority. On September 19, 1990 he was found guilty of fighting; on October 11, 1990, reprimanded for general disruptive conduct; on October 23, 1990, reprimanded for defiance of school authority; and on October 30, 1990, suspended for the use of provocative language. This is not the picture of a young man who would reasonably feel mistreated by a teacher who stood up to him. Respondent continuously maintains he did not initiate any physical contact with the student nor did he intend to use physical restraint. He made that clear at the conference in early February. Yet he was apparently not believed though the student's disciplinary record would tend to support Respondent's recollection of the incident. Dade County Schools prohibit the use of corporal punishment and allows restraint only for the protection of students or teachers. The application of these guidelines must be effected with common sense and a recognition of the empirics of the situation, however. Under the circumstances Respondent's actions do not appear inappropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that the Administrative Complaint filed in this matter be dismissed. RECOMMENDED in Tallahassee, Florida this 5th day of June, 1992. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-0176 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner: 1. & 2. Accepted and incorporated herein. 3. - 5. Accepted and incorporated herein. 6. First two sentences accepted and incorporated herein. Third sentence rejected as not supported by competent evidence of record. 7. Rejected as argument and contra to the weight of the evidence. 8. Accepted and incorporated herein. Rejected as not supported by competent evidence. In an interview with Mr. Kerr after this incident, as per her testimony at hearing, Ms. Grimsley related that he indicated he asked K.G. what he would do if he, Kerr, stepped on K.G.'s foot. When she indicated she thought to challenge a student like that was an error in judgement, he agreed, but at no time did he indicate he had stepped on K.G.'s foot. & 11. Accepted and incorporated herein. 12. & 13. Accepted and incorporated herein. & 15. Accepted and incorporated herein except that the incident was repeated three times before Mr. Kerr removed the toothpick from A.C.'s mouth. Accepted and incorporated herein with the modification that A.C. was standing very close to Respondent at the time the toothpick was removed and was not in his seat. & 18. Accepted in part. The better evidence indicates that A.C. left the room only after assaulting Mr. Kerr by hitting him in the stomach. Accepted and incorporated herein. Accepted and incorporated herein. Accepted in part. An inquiry was made, but only the ultimate conclusion was presented to the Hearing Officer. Neither the report of investigation nor specific findings of fact were presented. Accepted and incorporated herein. Accepted as Ms. Annunziata's opinion. The policy was not introduced into evidence. All cases of physical contact might well not constitute a violation. Accepted. This was not found to have happened, however. For the Respondent: 1. - 4. Accepted and incorporated herein. & 6. Accepted and incorporated herein. Accepted but what was in the Respondent's mind - his purpose - is unknown. Accepted and incorporated herein. Accepted and incorporated herein. - 13. Accepted and incorporated herein. & 15. Accepted. Accepted and incorporated herein. Accepted. A.C.'s partial disciplinary record has been incorporated herein. COPIES FURNISHED: Margaret E. O'Sullivan, Esquire 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399 William Du Fresne, Esquire 2929 SW Third Avenue, Suite One Miami, Florida 33129 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400 Jerry Moore Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 George A. Bowen, Acting Executive Director 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
