The Issue In DOAH Case No. 97-5828, the issue is whether the Respondent committed the violations alleged in the Amended Administrative Complaint dated March 24, 1998, and, if so, the penalty which should be imposed. In DOAH Case No. 98-2387, the issue is whether the Respondent committed the violations alleged in the Notice of Specific Charges dated July 30, 1998, and, if so, whether he should be dismissed from employment with the Miami-Dade County School Board.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board of Miami-Dade County, Florida, is the entity authorized to operate the public schools in the county and to "provide for the appointment, compensation, promotion, suspension, and dismissal of employees" of the school district. Section 4(b), Article IX, Florida Constitution; Section 230.23(4) and (5), Florida Statutes (1997). The Department of Education is the state agency responsible for investigating and prosecuting complaints against teachers holding Florida teachers' certificates for violations of Section 231.28, Florida Statutes. Section 231.262, Florida Statutes. Pursuant to Sections 231.261(7)(b) and 231.28(1), Florida Statutes, the Educational Practices Commission is the entity responsible for imposing discipline for any of the violations set forth in Section 231.28(1). Richard V. Powell holds Florida Educator's Certificate No. 585010, which covers the subjects of journalism and English- as-a-Second-Language ("ESOL"). His teacher's certificate has an expiration date of June 30, 1999. Mr. Powell was first employed as a teacher with the Miami-Dade County public school system in August 1985. From 1989 through August 1996, Mr. Powell was assigned to Jose Marti Middle School as an ESOL teacher; in August 1996, he was assigned to John F. Kennedy Middle School ("JFK Middle School") as an ESOL teacher; in August 1997, he was given a new assignment as the facilitator of JFK Middle School's School Center for Special Instruction. On November 26, 1997, Mr. Powell was temporarily assigned to the Region II office. At all times material to this proceeding, Mr. Powell was employed by the School Board under a professional service contract. November 1995 incident On the evening of November 19, 1995, at around 10:00 or 10:30 p.m., Mr. Powell was driving his Ford Bronco on Pembroke Road in Broward County, Florida. Mr. Powell's fourteen-year-old son was sitting in the front passenger seat, and he and his father began arguing about his school behavior and progress and about his failure to do his chores around the house. Mr. Powell became angry and punched his son in the mouth with his fist and then pulled the Bronco off the street, into a vacant lot. Mr. Powell got out of the Bronco, walked around the back of the vehicle to the door on the passenger's side, opened the door, and pulled his son out of the vehicle. After the child was outside the vehicle, Mr. Powell punched his son once in the face and, when the child fell to the ground, Mr. Powell kicked him at least once in the ribs. 8/ The child broke away and ran to a convenience store about twenty-five yards from the vacant lot, where a witness to the incident had already called the police. When he arrived at the convenience store, the child was sobbing and holding his side; blood was pouring from his lip. 9/ After the altercation with his son, Mr. Powell was not feeling well and, believing that his son had run the short distance to his home, Mr. Powell drove home. He waited a few minutes for his son and then walked from his home to Pembroke Road. He saw his son, a police car, and an ambulance at the convenience store, and he walked up to the police officers and identified himself as the child's father. Mr. Powell's son was taken to the hospital and treated and released with a split lip and a bruise in the area of his ribs. Mr. Powell was taken to the Pembroke Pines, Florida, police station. Mr. Powell is a diabetic, and, while he was at the police station, he asked to be examined by a doctor because he did not feel well. He was taken to the hospital, where he remained for about an hour. After his release from the hospital, Mr. Powell was arrested and charged with child abuse. On July 29, 1996, after a bench trial on child abuse charges, the court found Mr. Powell guilty but withheld adjudication, sentenced him to six months' probation, and required him to complete a parent counseling course. 10/ Mr. Powell successfully completed the course in December 1996 and was released early from probation on January 8, 1997. In August 1996, Mr. Powell was transferred from Jose Marti Middle School to JFK Middle School, where Raymond Fontana was principal. In a letter dated August 1, 1996, Seth A. Levine, an assistant state attorney in Broward County, Florida, notified the superintendent of the Miami-Dade County public school system that Mr. Powell had been tried on the charge of child abuse, and he advised the superintendent of the resolution of the case. The letter was forwarded to James E. Monroe, who was at the time an Executive Director in the School Board's Office of Professional Standards, who reviewed the letter and transmitted the information contained therein to Mr. Fontana at JFK Middle School and to the state Department of Education Educational Practices Services. Mr. Monroe was not aware of the November 1995 incident involving Mr. Powell and his son until on or about August 14, 1996, when he received the copy of Mr. Levine's letter. In a letter dated October 10, 1996, the Education Practices Services notified Mr. Powell that it had received a complaint against him related to the charges of child abuse, and an investigation was begun which led to the filing of the original Administrative Complaint dated January 21, 1997. The disciplinary action taken against Mr. Powell by the School Board with respect to the child abuse charges consisted of a Site Disposition in the case, which the School Board referred to as Case No. A-17734. In a memorandum to Mr. Powell dated October 15, 1996, Mr. Fontana summarized the substance of a conference which was held on October 15, 1996, with Mr. Powell, Mr. Fontana, and William McCard, an assistant principal at JFK Middle School, in attendance. In the memorandum, Mr. Fontana indicated that "[t]he purpose of the conference was to establish a final disposition through administrative review of the above indicated case." Mr. Fontana further stated: Upon review of all the records and talking with you, it is determined that the incident in question happened in Broward County, no adjudication of guilt was established, and legally the case was closed. However, you have agreed to counseling in order to forestall any future problems. The case in question dealt with your own family member and alleged child abuse. We reviewed my expectations of you in regards to your teaching position at John F. Kennedy Middle School and your professional treatment of all your students. We reviewed the State Code of Ethics guidelines dealing with the same subject. Thus, I am directing you to follow the established State Code of Ethics Rules, School Board Policy, and Site Rules dealing with conduct becoming a teacher and subsequent teaching relationships with students. I feel that this will adequately bring closure to this incident and that in the future your teaching behavior will always be of the highest professional standard. In his annual evaluation for the 1995-1996 school year, Mr. Powell was rated "acceptable" in both classroom performance and in professional responsibility, and he was recommended for continued employment. Likewise, in his annual evaluation for the 1996-1997 school year, Mr. Powell was assessed "acceptable" in both classroom performance and in professional responsibility, and he was recommended for continued employment. This annual evaluation followed a Teacher Assessment and Development System Post-Observation Report completed on April 16, 1997, by Mr. McCard, in which he found that Mr. Powell's performance satisfied every indicator subject to evaluation. 11/ November 1997 incident On November 25, 1997, Mr. Powell was the teacher in charge of the School Center for Special Instruction ("SCSI") at JFK Middle School. The SCSI is an indoor suspension program for children who are being disciplined for behavior violations; SCSI is an alternative to sending these children home for the duration of their suspension. The SCSI class was held in the school cafeteria at JFK Middle School from 9:00 a.m. until the end of the school day at 3:40 p.m. Two sets of double doors provide access to the cafeteria. One set, those on the right, were locked from the outside and not normally used; the students entered and left the cafeteria by the set of doors on the left of the building. At approximately 3:20 p.m. on November 25, 1997, the SCSI students were returning to the cafeteria after cleaning up an area outside the cafeteria. Mr. Powell was outside supervising the students as they returned to the cafeteria, and there was no adult supervising the students who had already moved inside the cafeteria. During this hiatus, a seventh-grade student named M. M. got into an altercation with several other boys in the class whom he suspected of taking his book bag. The boys began pushing and shoving M. M. and encouraging him to fight with one specific boy. M. M. refused to fight; he became angry and upset and left the cafeteria by way of the set of double doors on the right side of the cafeteria. Because he was angry and upset, M. M. pushed the door open quite forcefully. Mr. Powell had had surgery on his right foot the previous day; his foot was in a cast, and he used a cane to assist him in walking. At the time M. M. pushed open the cafeteria door, Mr. Powell was standing outside directly in the path of the door as it opened. M. M. could not see Mr. Powell because there were no windows in the door. As it swung open, the door hit Mr. Powell's injured foot, and Mr. Powell raised his cane and struck M. M. on his right arm. 12/ M. M. ran back inside the cafeteria, in tears. He rushed through the cafeteria and exited through the set of doors on the left side of the cafeteria. He went directly to the office of Sandra Clarke, one of the guidance counselors at JFK Middle School. When he arrived at her office, M. M. was agitated and crying, and he told Ms. Clarke that Mr. Powell had hit him on the arm with his cane. M. M. showed Ms. Clarke the mark on his arm, which was located on the outside of his right arm, midway between his shoulder and his elbow. Ms. Clarke observed that M. M. had a red welt on his arm, and she took him to the office of Patrick Snay, who was at that time the principal of JFK Middle School. Mr. Snay called in Assistant Principal McCard and told him about the allegations M. M. had made against Mr. Powell. Mr. Snay directed Mr. McCard to call the school police and to take statements from the students in the class who witnessed the incident. Mr. McCard took a statement from M. M. and observed the red mark on his arm. A school security guard went into the SCSI class right before school ended for the day and asked that any students who had seen the incident involving Mr. Powell and M. M. stay after school and write a statement telling what they had seen. Several students remained and prepared statements. 13/ Mr. Powell reported for school the next morning but was told to report to the School Board's Region 2 office. Mr. Powell worked at that office for one day, and then, beginning on the Monday after Thanksgiving, he was assigned to work at Highland Oaks Middle School. He worked at that school until he was suspended by the School Board on May 13, 1998. His duties at Highland Oaks Middle School included taking care of disabled students, accompanying them to their classes and to lunch, sitting with them, and taking notes for them, all under the direct supervision of the school's media specialist. At the direction of James Monroe, who was at the time an Executive Director in the School Board's Office of Professional Practices, a personnel investigation was initiated on December 6, 1997, with respect to M. M.'s allegations against Mr. Powell. A preliminary personnel investigation report was submitted on February 13, 1998, in which the investigator concluded that the charge against Mr. Powell was substantiated. A Conference-for-the-Record was held on March 25, 1998, attended by Mr. Snay; John F. Gilbert, Director of Region 2; Ms. Falco, Mr. Powell's union representative; Dr. Monroe; and Mr. Powell. Several issues were discussed during the conference: Mr. Powell was allowed to review a copy of the School Board's investigative report regarding the incident involving M. M., and he was allowed to comment on the report. Mr. Powell denied having hit M. M. and advised the School Board personnel that he knew of an eye witness to the incident who would support his denial. Mr. Powell was also allowed to review a copy of the October 15, 1996, memo to Mr. Powell from Principal Fontana, discussed in paragraph 16, supra, memorializing the discipline imposed with respect to the charges that Mr. Powell had committed child abuse on his son. Dr. Monroe advised Mr. Powell that he had failed to comply with the directives included in that disposition. /14 During the Conference-for-the-Record, Mr. Powell was told that a recommendation would be made to the School Board that his professional services contract not be renewed and that a decision would be made whether to take disciplinary measures against him, which could include suspension or dismissal. In a letter dated April 29, 1998, the Superintendent of Schools recommended to the School Board that Mr. Powell be suspended from his position as a teacher and that dismissal proceedings be initiated against him. The School Board accepted this recommendation on May 13, 1998. On October 29, 1998, Mr. Powell was tried by a jury on the criminal charge of battery arising out of his striking M. M. A number of students testified at the trial, and Mr. Powell was found "not guilty" of the charge. On September 5, 1997, Mr. Powell was honored by the Florida House of Representatives with a Certificate of Appreciation for "his contributions and accomplishments in the National Association of Black Scuba Divers." As a member of that association, Mr. Powell was recognized and commended for his work with the sunken slave ship Henrietta Marie and for his lectures and seminars on the history of this ship. On May 28, 1998, an article about the Certificate of Appreciation appeared in The Miami Times, together with a picture of Mr. Powell and Representative Larcenia Bullard. Nowhere in the certificate or in the news article is Mr. Powell identified as a teacher or former teacher in the Miami-Dade County public schools. Mr. Powell is mentioned and quoted in an article which was published in the South Florida edition of the Sunday Sun Sentinel newspaper on February 1, 1998. The article discussed the celebration of Black History Month by the descendants of slaves who are living in South Florida. Mr. Powell is identified in the article as the person who led members of the National Association of Black Scuba Divers in a dive to the site of the Henrietta Marie. Mr. Powell also gave a lecture on the Henrietta Marie in February 1997 at the Miami-Dade County Community College, as part of a special African-American history course. Summary The evidence presented herein clearly and convincingly establishes that Mr. Powell struck and kicked his son on November 19, 1995, and that he struck M. M. with his cane on November 25, 1997, while carrying out his duties as an SCSI teacher. Mr. Powell's testimony that he did not strike either his son or M. M. is rejected as not persuasive, as is the testimony of those witnesses who testified that Mr. Powell did not strike M. M. The evidence presented is sufficient to establish that Mr. Powell committed an act of gross immorality and of moral turpitude when he dragged his fourteen-year-old son from the passenger seat of his Ford Bronco, struck his son in the face twice, and kicked his son in the ribs at least once, causing him to suffer a split lip and bruised ribs. This act of violence is not only inconsistent with the public conscience, it is an act of serious misconduct which was in flagrant disregard of society's condemnation of violence against children. The seriousness of Mr. Powell's act is only exacerbated by the fact that he acted in anger. Although the evidence establishes that Mr. Powell committed an act of gross immorality, the only evidence offered regarding any notoriety arising from the November 1995 incident and from Mr. Powell's subsequent trial on the charges of child abuse is the testimony of Dr. Monroe. Dr. Monroe's testimony that there "was considerable notoriety via the print and the electronic media of Mr. Powell's action which resulted in his arrest" was not based on his personal knowledge but was based on information he received in August 1996 from an assistant state's attorney in Broward County. Dr. Monroe's testimony is not only hearsay unsupported by any other evidence in the record, it is not credible to prove that Mr. Powell's conduct was sufficiently notorious to cast him or the education profession into public disgrace or disrespect or to impair Mr. Powell's service in the community. Moreover, Mr. Powell presented evidence that, subsequent to the November 1995 incident, he was publicly recognized for his contributions to the community through his work with the slave ship Henrietta Marie. The evidence presented is also sufficient to establish that Mr. Powell committed an act of gross immorality and of moral turpitude with respect to the November 1997 incident involving M. M. When Mr. Powell lashed out at this student and struck him with a cane, albeit after the student pushed a door into his injured foot, he demonstrated a flagrant disregard of public morals and of society's condemnation of violence against children, and he committed an act that betrayed the special trust placed in teachers. However, there was no persuasive evidence presented to establish that Mr. Powell's conduct involving M. M. was sufficiently notorious to expose either Mr. Powell or the education profession to public disgrace or disrespect or that Mr. Powell's service in the community was impaired with respect to the November 1997 incident. The most the evidence demonstrates is that the school received inquiries from parents about the need for their children to give statements regarding the incident, but these inquiries do not rise to the level of notoriety. Furthermore, it would be inappropriate to infer notoriety and public disgrace and disrespect from the fact that Mr. Powell was tried and found not guilty of the charge of battery on M. M. The evidence presented is sufficient to establish that, with respect to the November 1997 incident in which Mr. Powell struck M. M. with his cane, Mr. Powell violated several provisions of the Code of Ethics of the Education Profession and of the Principles of Professional Conduct for the Education Profession in Florida because he did not exercise professional judgment; because he inflicted physical injury on M. M. rather than protecting him from such injury; and because he exposed M. M. to unnecessary embarrassment by striking him and causing him to cry in front of his fellow students in the SCSI class. There was, however, no persuasive direct evidence presented to establish that Mr. Powell's effectiveness as a teacher and an employee of the School Board was diminished as a result of the November 1997 incident. This direct evidence consisted solely of the opinion testimony of Dr. Monroe, which was conclusory and was based exclusively on information he obtained from Mr. Powell's records and from discussions with school administrative personnel charged with monitoring Mr. Powell's conduct and teaching performance. No parents or students or members of the community testified that Mr. Powell's effectiveness as a teacher and as an employee of the School Board was diminished as a result of this incident. Under the circumstances of this case, however, it can be inferred from the record as a whole that Mr. Powell's effectiveness as a School Board employee and as a teacher was seriously diminished as a result of the November 1997 incident. Mr. Powell stuck a student with a cane during school hours, and the incident was witnessed by a number of students, who were asked to testify both in this proceeding and in Mr. Powell's criminal trial. In addition, the allegations against Mr. Powell with respect to the November 1997 incident were of such a serious nature that it was necessary to relieve Mr. Powell of his teaching responsibilities and to transfer him from JFK Middle School to the Region 2 administrative offices and, from there, to another middle school in which his contact with students was closely supervised. Finally, the evidence presented is sufficient to establish that, with respect to the November 1997 incident in which he struck M. M. with his cane, Mr. Powell did not conduct himself in a manner which reflected credit on himself or on the school system, nor did his conduct conform to the highest professional standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that In DOAH Case NO. 97-5828, the Education Practices Commission enter a final order finding Richard V. Powell guilty of violating Section 231.28(1)(c) and (i), Florida Statutes, and revoking his teacher's certificate for a period of two years, followed by three years' probation, subject to reasonable conditions to be determined by the Commission; and In DOAH Case No. 98-2387, the School Board of Miami-Dade County, Florida, enter a final order finding Richard V. Powell guilty of misconduct in office pursuant to Section 231.36(1)(a) and (6)(a), Florida Statutes, and of violating School Board Rules 6Gx13-4A-1.21 and 6Gx13-4-1.08 and 4-1.09; sustaining his suspension; and dismissing him from employment as a teacher with the Miami-Dade County Public Schools. DONE AND ENTERED this 11th day of October, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1999.
The Issue Whether there is just cause to terminate Mr. Altheim's employment.
Findings Of Fact The School Board is the entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. Mr. Altheim has been employed with the Miami-Dade County Public Schools for 15 years. During the 1999-2000 school year, Mr. Altheim was a teacher at North Miami Middle School. He was involved in a conference-for-the-record; he was directed to follow all School Board rules and to conduct himself within the community in a proper manner. During the 2002-2003 school year, Mr. Altheim was still working at North Miami Middle School. He was involved in a conference-for-the-record, where he was again directed to adhere to all Miami-Dade County School Board rules and regulations. He was also directed to cease and desist from inappropriate contact with the students, and to conduct himself in a manner that would reflect credit upon himself and the Miami-Dade County Public Schools. Ten years later, during the 2012-2013 school year, Mr. Altheim was employed as a civics teacher for John F. Kennedy Middle School. Karen Robinson was the Principal during this school year. On a school day in December 2012, Mr. Altheim took his class to the cafeteria for lunch. While in the cafeteria, he noticed three girls who were out of place; because he knew which students should be in the cafeteria during that time period, he concluded that the three girls should be elsewhere. Mr. Altheim took one student to Mr. Sanon's class, and informed Mr. Sanon that the student was attempting to skip his class. The other two he took to see the Assistant Principal, who was on the phone when the group arrived at his office. Mr. Altheim left the students in the Assistant Principal's office, shortly thereafter returning to check on the matter. The students were still waiting, and the Assistant Principal was still on the phone. Mr. Altheim told the Assistant Principal that the girls were "skipping" and started to walk away. He overheard one of the girls, N.S., tell the other girl that Mr. Altheim was a rapist, and that he touched people. Mr. Altheim told Ms. Robinson that N.S. had called him a rapist, and Ms. Robinson directed Mr. Altheim to write a referral for N.S., for using inappropriate language with a teacher. N.S. was described as a challenging student by both Ms. Robinson and Mr. Altheim. Prior to this incident, Mr. Altheim had written referrals for N.S. numerous times for behavioral problems. Ms. Robinson met with N.S., and asked her why she used the term "rapist" to refer to Mr. Altheim. N.S. accused Mr. Altheim of rubbing girls' necks and shoulders, including hers, and gave Ms. Robinson the names of three other girls who could corroborate her story. Ms. Robinson spoke to approximately five students, including the three girls that had been identified by N.S. Some of the girls accused Mr. Altheim of massaging their necks and shoulders, and one accused him of brushing her bangs away. According to Ms. Robinson, all of them reported feeling uncomfortable with the physical contact. None of these students' written statements or oral statements were entered into evidence. Instead, 13 other students testified by deposition. Twelve of them never saw Mr. Altheim touch any student inappropriately. Most of them saw Mr. Altheim pat students on the back or on the shoulder, or shake a student's hand, when congratulating a student for a job well done. They consistently testified that he did so in a congratulatory manner, but never in an inappropriate manner. One student, D.P., claimed that he had seen Mr. Altheim wrap his arm around a girl's waist, but added that no one else saw this occur, and admitted to being friends with N.S. and the other accusers. D.P.'s testimony was not corroborated by any other student's testimony, and is not found credible. Notably absent from the record is any alleged victim statement; not a single student testified that he or she had been inappropriately touched by Mr. Altheim. Mr. Altheim credibly testified that he never inappropriately touched any student, and that he never massaged student's necks or shoulders. He may have patted students on the shoulder or back, or shaken students' hands when congratulating them, but there was nothing inappropriate about the physical contact. The greater weight of the evidence establishes that Mr. Altheim is not guilty of misconduct in office, gross insubordination, or of a violation of any School Board policy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade School Board enter a final order dismissing the charges against Mr. Altheim and reinstating him with full back pay and benefits. DONE AND ENTERED this 22nd day of November, 2013, in Tallahassee, Leon County, Florida. S JESSICA E. VARN 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 22nd day of November, 2013. COPIES FURNISHED: Mark Herdman, Esquire Herdman and Sakellarides, P.A. Suite 110 29605 U.S. Highway 19, North Clearwater, Florida 33761 Heather L. Ward, Esquire Miami-Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Alberto Carvalho, Superintendant Miami-Dade County Public Schools Suite 912 1450 Northeast Second Avenue Miami, Florida 33132
The Issue Whether Respondent committed the violations alleged in the Notice of Specific Charges and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based on 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 (including, among others, Phillis Wheatley Elementary School (Phillis Wheatley) and Palm Springs Middle School (Palm Springs)), and for otherwise providing public instruction to school-aged children in the county. Respondent is now, and has been since October 1987, employed as a classroom teacher by the School Board. She holds a professional services contract. Respondent first taught for the School Board at Phillis Wheatley. In 1996, she moved to Palm Springs, where she remained until she was "assigned to a paid administrative placement at [the] Region Center I [effective October 4, 2007] pending the resolution of investigative case # N-85085" (referenced in paragraph 14 of the Notice of Specific Charges). Respondent has previously been disciplined by the School Board for using physical means to control student behavior. In 1992, following an investigation during which Respondent "admitted to placing tape on one student's mouth and telling the other to place the tape on his mouth" and "also admitted to hitting a student on the head with a dictionary and tapping another student on the hand with a ruler," she received the following "letter of reprimand" from her principal at Phillis Wheatley: On August 8, 1992, you were charged with conduct unbecoming a School Board employee and battery of students. You violated the Chapter 6B-1.01(3), Code of Ethics of the Education Profession in Florida, and Dade County School Board Rule 6Gx-13-4A-1.21, "Conduct Unbecoming a School Board Employee." The above infractions were substantiated by the Special Investigative Unit, Case No. 92-00946. You are directed to comply with the procedures outlined in the Chapter 6B- 1.01(3), Code of Ethics of the Education Profess[ion] in Florida, to refrain from demeaning students, punishing them by taping mouths, touching or taping students to discipline them or to demonstrate affection, and to conduct yourself in a professional manner. Any recurrence of the infractions will result in further disciplinary actions. In 1995, Respondent was reprimanded for striking a student with a stack of papers and received the following "Confirmation of Administrative Action" from the Phillis Wheatley principal: Please be advised that after a complete investigation of Case Number 95-12689 done by this administrator the following guidelines must be reviewed with this administrator. Review the faculty handbook pg 18, on Corporal Punishment. Review a copy of School Board Rule 6Gx4A-1.21, Employee Conduct, and Chapter 6B-1.01(3), Code of Ethics of the Education Profession in Florida. You are to refrain from touching or tapping students to discipline them and you must conduct yourself in a professional manner at all times. Any recurrence of this infraction will result in further disciplinary action. In 2004, after determining that Respondent had "acted inappropriately" when, in anger, she had "grabbed" a student by the "hair yanking [the student's] head backwards," the Palm Springs principal issued Respondent the following written reprimand: On December 11, 2003, you inappropriately disciplined (a) student(s) while waiting in front of the cafeteria. You violated the Contract between the Miami- Dade County Public Schools and the United Teachers of Dade, Article VIII, Section 1. [a]s well as School and Miami-Dade County School Board Rules, 6Gx13-5D-1.07, Corporal Punishment, and 6Gx13-5D-1.08, Code of Student Conduct. It is your responsibility as a classroom teacher to maintain control and discipline of students. However, it is imperative that you follow school and Miami-Dade County School Board rules in doing so. Rules governing student discipline a[re] outlined in the Code of Student Conduct, Board Rule 6Gx13-5D-1.08, faculty handbook, and Promoting and Maintain[ing] a Safe Learning Environment document, and are referenced in the United Teachers of Dade Contract, Article VII, Section I. You are directed immediately to refrain from using any physical means to affect student behavior. You are directed immediately to implement the appropriate procedures for dealing with inappropriate student behavior as stipulated in the documents above[]. The above infraction was substantiated by an Administrative Review, Case Number J08655. You are directed to refrain from using inappropriate procedures in the performance of your assigned duties. You are directed to implement immediately, approved procedures in the performance of your assigned duties. Any recurrences of the above infraction will result in further disciplinary action. As a School Board employee, Respondent is expected to conduct herself in accordance with School Board rules, including the aforementioned School Board Rules 6Gx13-4A-1.21 and 6Gx13- 5D-1.07. At all times material to the instant case, School Board Rule 6Gx13-4A-1.21I has provided 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 has provided, in pertinent part, 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 action depending upon 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. As an instructional employee of the School Board, Respondent is 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 (UTD Contract). Article V of the UTD Contract addresses the subject of "[e]mployer [r]ights." Section 1 of Article V provides, in part, that the School Board has the exclusive right to suspend, dismiss or terminate bargaining unit employees "for just cause." Article VIII of the UTD Contract addresses the subject of "[s]afe learning environment." Section 1.D. of Article VIII provides as follows: The parties recognize the potential for difficult circumstances and problems related to the use of corporal punishment. Accordingly, the parties agree that such punishment shall be prohibited as a disciplinary option, and further agree to act affirmatively in continuing to identify and implement more effective alternatives for dealing with student behavior. The involvement of school-site personnel in developing such alternatives is critical to their potential for success. Article XXI of the UTD Contract addresses the subject of "[e]mployee [r]ights and [d]ue [p]rocess." Section 1.B.1.a. of Article XXI provides that "[a]ny member of the instructional staff may be suspended or dismissed at any time during the school year, provided that the charges against him/her are based upon Florida Statutes." Section 1.B.2. of Article XXI provides, in part, that "[d]ismissals and suspensions shall be effected in accordance with applicable Florida Statutes, including the Administrative Procedures Act (APA) " In the instant case, the School Board is seeking to dismiss Respondent based on conduct in which she allegedly engaged during the 2007-2008 school year. While assigned to Palm Springs during the 2007-2008 school year, Respondent taught three periods of language arts to sixth and seventh grade Spanish-speaking ESOL students. She also had responsibility for a sixth grade homeroom class. Y. L., J. T., and I. M. were sixth grade students at Palm Springs during the 2007-2008 school year. They each had Respondent for homeroom and language arts for a brief time during the beginning of that school year. At all material times during the 2007-2008 school year, Respondent understood that the School Board had a policy "strictly prohibit[ing]" the use of corporal punishment. Nonetheless, on more than one occasion during this time period, Respondent used physical means to redirect Y. L. She grabbed him by the hair and pulled him by the arm, hurting him in the process. She also "grabbed other students by their arms" to control their behavior. Respondent made threats to throw Y. L. and other students out the window if they did not behave. Although Respondent had no intention of carrying out these threats, Y. L. believed that the threats were real and that Respondent meant what she had said. On one occasion, Respondent opened a window, had Y. L. stand next to it, and told him that if he moved at all, she would toss him out the open window. As a disciplinary measure, Respondent had Y. L. pick up his wheel-equipped book bag (filled with textbooks and notebooks for all his classes) and hold it on top of his head for an extended period of time while he was standing in place. Y. L. felt some discomfort in his shoulder when he did this. Afraid of Respondent, Y. L. often "hid[] in the bathroom" at school instead of going to Respondent's classroom. On numerous occasions, Y. L.'s mother had to pick him up from school before the end of the school day because he had vomited. At home, Y. L. had trouble sleeping and refused to eat. He lost approximately 20 pounds (going from 100 pounds down to 80). Y. L. was not the only student that Respondent directed to stand with a filled book bag on his head. J. T. and I. M. were also issued such a directive by Respondent. It happened the first week of the school year on a day when the students remained in their homeroom classes until dismissal because of a power outage that left the school without lights and air conditioning for much of the day. Towards the end of the day (after power had been restored to the school), J. T. and I. M. were talking to one another when they were not supposed to. In response to their transgression, Respondent instructed them to stand in separate corners of the classroom and hold their book bags (which were similar to Y. L.'s) on top of their heads.2 The book bags remained on their heads for a substantial enough period of time to cause them to experience pain. 3 Y. L., J. T., I. M., and their parents complained to the Palm Springs administration about Respondent's disciplinary tactics. In response to Y. L.'s and his mother's complaints, one of the school's assistant principals, Niki Ruiz, interviewed "randomly selected" classmates of Y. L.'s. These students "corroborated what Y. [L.] was saying." On September 26, 2007, the matter was turned over to the School Board's General Investigative Unit (GIU) for investigation. Respondent was removed from the classroom and placed on alternative assignment pending the outcome of the investigation. Following the GIU investigation, the matter was referred to the School Board's Office of Professional Standards. There was a conference-for-the-record held on February 6, 2008, at which Respondent had the opportunity to tell her side of the story. In her remarks, she expressed a disdain for authority when she said, "I'm very professional but I don't stick to rules." The School Board's Superintendent of Schools recommended that the School Board suspend Respondent and initiate termination proceedings against her. The School Board took such action at its May 21, 2008, meeting.
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 her employment as a professional service contract teacher with the School Board for the reasons set forth above DONE AND ENTERED this 16th day of December, 2008, in Tallahassee, Leon County, Florida. S 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 16th day of December, 2008.
The Issue Whether the Respondent, Gloria P. Adams, violated School Board rules regarding a drug-free workplace, and excessive absenteeism; whether she abandoned her position of employment; whether Respondent committed gross insubordination or willful neglect of duty; and if so, whether such violation(s) support termination of Respondent's employment with the School District.
Findings Of Fact At all times material to the allegations of this case, the Petitioner is the authority charged with the responsibility of operating, controlling, and supervising all public schools within the Miami-Dade County, Florida School District. As such, its duties also include the personnel decisions related to teachers employed by the School District. At all times material to the allegations of this matter, the Petitioner employed the Respondent pursuant to a professional services contract. The Respondent was assigned to serve as a teacher at Jan Mann Opportunity School. On December 21, 2001, the Respondent presented for work staggering (in fact she fell down) with a disheveled appearance. At that time Respondent spoke with slurred speech and used verbally aggressive words. Based upon her appearance and actions, together with what was perceived as a strong odor of alcohol, the Respondent's supervisor determined that she should complete a "reasonable suspicion form." The form is designated when an employee is suspected of drug and/or alcohol use on school property. Betty Major completed the form (Petitioner's Exhibit 1) and noted Respondent's unsteady gait as well as the other indicators of being under the influence. Moreover, the Respondent admitted she had been drinking alcohol the night before. During the interview conducted by Ms. Major, the Respondent exhibited marked irritability and expressed anger. As a result, the Respondent was relieved of duty. The Respondent subsequently refused to submit to a drug and alcohol screening. On January 10, 2002, the School Board's Office of Professional Standards held a conference-for-the-record (CFR) and informed the Respondent that the refusal to submit to drug and alcohol screening would be considered a positive test response. The details of the CFR are memorialized in Petitioner's Exhibit 2. At the CFR the Respondent was also advised that she had excessive absences. Although the Respondent maintained she was physically ill and unable to attend school, documentation from a treating physician to support the number of absences has not been provided. At the conclusion of the CFR, the Respondent was provided with a copy of the School Board rule regarding its policy for a drug-free workplace, a copy of the responsibilities and duties rule, and the code of ethics of the Education Profession in Florida. The CFR was concluded with an indication from Respondent that she would promptly address the issues raised therein. As part of the CFR the Respondent was advised of her opportunity to obtain assistance through the Employees' Assistance Program (EAP). Among its functions the EAP counsels School Board employees with substance or drug abuse concerns. Alcohol is considered a "drug" under the drug-free workplace policy. The Respondent initially agreed to complete the EAP requirements in order to return to the classroom. She did not fully cooperate with or complete the program. On April 15, 2002, a second CFR was conducted with the Respondent. This meeting again sought to address the Respondent's ability to return to duty and her noncompliance with the drug-free workplace policy. At the second CFR the Respondent again expressed a willingness to complete the EAP and to obtain appropriate help for her on-going problems. The Respondent was directed to comply with the recommendations made by the School District's EAP. The Respondent continued to be apologetic for her past behaviors. On August 13, 2002, a third CFR was held between the Respondent and the Office of Professional Standards. The agenda for that meeting was similar to the past CFRs. The Respondent had not complied with the EAP, had not explained the unauthorized excessive absences, and the issue of the presumptive positive response for the drug and alcohol screening still loomed large. Again, as in the past, the Respondent apologized for not completing the EAP. Additionally, the number of leave without pay (unauthorized) absences had by that time grown to The Respondent had also exhausted her sick/personal leave time. The absences were directly attributable to the Respondent's failure to complete the EAP. Basically, the Respondent was unable to be cleared to return to the classroom until she completed the EAP. She failed to complete the EAP so the number of unauthorized absences continued to grow. Eventually the Respondent was dropped from the EAP due to lack of participation. Her case was then closed. The Petitioner gave the Respondent numerous opportunities to demonstrate she was fit to return to the classroom. The Respondent did not offer any credible explanation for her actions. Regrettably, the Respondent demonstrated by her failure to comply with the EAP that she was unprepared to return to the classroom. The Respondent did not request medical leave (with appropriate documentation from a physician) if her condition were due to a physical illness. Moreover, the Respondent did not apply for any leave that might have protected her job. This lack of judgment in itself suggests the Respondent was impaired and therefore unable to perform her duties as a classroom teacher. At the minimum, had Respondent attended the EAP she could have received counseling and assistance that might have protected her future employment with the School District.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a Final Order confirming the initial decision to suspend without pay and to terminate the employment of the Respondent based upon just cause as set forth above. It is further recommended that, should the Respondent complete an accepted program for substance abuse and demonstrate fitness for Duty, that the School Board consider re-employment of the Respondent. DONE AND ENTERED this 30th day of May, 2003, in Tallahassee, Leon County, Florida. ___________________________________ J. D. 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 30th day of May, 2003. COPIES FURNISHED: Merrett R. Stierheim Interim Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 Gloria P. Adams 19511 Northwest 8th Avenue Miami, Florida 33169 Melinda L. McNichols, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132
The Issue The first issue in this case is whether, as the district school board alleges, a teacher abused, mistreated, or otherwise behaved inappropriately towards one of his special-needs students; if the allegations of wrongdoing are proved to be true, then it will be necessary to decide whether the school board has just cause to terminate the teacher's employment.
Findings Of Fact The Broward County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Broward County Public School System. At all times relevant to this case, Respondent Edouard Jean ("Jean") was employed as an Exceptional Student Education ("ESE") teacher in the Broward County public schools, a position which he had held for the preceding 16 years. During that period, Jean taught students with disabilities, who typically receive specially designed instruction and related services pursuant to individual educational plans. Ahead of the 2013-14 school year, Jean was transferred to Crystal Lake Middle School, where he had not previously worked. He was placed in an "SVE" class and assigned to teach ESE students having "varying exceptionalities." Jean's class contained a mix of high- and low-functioning students, about nine in number. Jean's colleague, Ray Montalbano, taught a similar SVE class in a nearby room. At the beginning of the school year, the two ESE teachers agreed to share responsibility for their respective students under an arrangement that separated the higher functioning students from the lower functioning students. Jean and Mr. Montalbano took turns teaching the two groups, exchanging one for the other at midday. In this way, each teacher spent roughly equal time with the respective sets of students. For the last hour of the day, they combined the two groups and jointly instructed the approximately 18 students in Mr. Montalbano's classroom, which was larger. There were two paraprofessionals, or teacher's assistants, working in Jean and Mr. Montalbano's SVE classes. One, named Lisa Phillips, was assigned to both teachers; she alternated between their classrooms during the day. The other, Donna Rollins, was assigned to Mr. Montalbano's class, where Jean spent an hour each afternoon. In view of the cooperative arrangement between Jean and Mr. Montalbano, both of the teacher's assistants regularly worked in the same classroom as Jean and assisted with the provision of instruction and services to the 18 students for whom Jean and Mr. Montalbano were responsible. On October 15, 2013, Jean was removed from his classroom and informed that he was the target of a criminal investigation arising from allegations that he recently had abused one of his pupils, a 13-year-old boy with Down Syndrome named Z.P., who was among the lower functioning students. Jean's accuser was an occupational therapist named Lisa Taormina, who at all relevant times worked as an independent contractor for the School Board, providing services to students at various public schools in Broward County. Jean consistently has denied Ms. Taormina's allegations, which shocked and surprised him. Ms. Taormina, who that year was seeing students at Crystal Lake Middle School once per week each Friday, reported having observed Jean mistreat Z.P. on October 4, 2013, and again on October 11, 2013. Ms. Taormina claimed that the alleged events of October 4 took place in Jean's classroom with Ms. Phillips in attendance. The alleged events of October 11, in contrast, purportedly took place in Mr. Montalbano's classroom during the hour when the two SVE classes were combined. Thus, the alleged abuse supposedly occurred in the presence of Mr. Montalbano, Ms. Phillips, Ms. Rollins, and a substitute teacher named Shirley Ashcroft who happened to be there that day. Ms. Taormina's allegations were investigated by the Broward County Sheriff's Office and the Broward District Schools Police Department. During these investigations, neither Z.P. nor any of the other students were interviewed, because most of them (including Z.P.) are either nonverbal or too intellectually limited to be reliable witnesses.1/ All of the adults were questioned, however, and none of them corroborated Ms. Taormina's allegations. Unsurprisingly, therefore, no criminal charges were brought against Jean. On the strength of Ms. Taormina's allegations, the School Board nevertheless determined that Jean had abused Z.P. and thus should be fired. As it happens, Ms. Taormina's final hearing testimony is the only direct evidence against Jean, whose colleagues Mr. Montalbano, Ms. Phillips, Ms. Rollins, and Ms. Ashcroft, to a person, credibly denied under oath having ever seen him mistreat Z.P. or any other student. The outcome of this case, therefore, depends on whether Ms. Taormina's testimony is believed likely to be an accurate account of the relevant historical events. In assessing Ms. Taormina's credibility, the undersigned finds it especially significant that Jean's co- workers, who were able to observe him for extended periods of time on a daily basis in the classroom, never witnessed him engage in any troubling or suspicious behavior during the roughly seven weeks he taught at Crystal Lake Middle School; to the contrary, everyone who testified (except Ms. Taormina) who had seen Jean in the classroom praised his performance generally, and his relationship with Z.P. in particular. The undersigned credits the consistent, mutually corroborative, and overwhelmingly favorable testimony about Jean's exemplary conduct. Because an isolated incident, however out of character, can be squared with evidence of otherwise superlative performance, the fact that Jean was well regarded by the employees with whom he closely worked does not exclude the possibility that Jean abused Z.P., but it does diminish the likelihood that he could have abused Z.P. on multiple occasions. For that reason, if Ms. Taormina claimed only to have seen Jean mistreat Z.P. once, her testimony likely would have been more believable. Ms. Taormina claims, however, to have seen Jean abuse Z.P. on two separate days——on consecutive weekly visits to the school, no less. If Ms. Taormina is to be believed, Jean's alleged abuse of Z.P. was not an isolated incident but was rather, if not necessarily part of a pattern of behavior, at least something Jean was capable of repeating. Here it bears emphasizing that Ms. Taormina saw Jean, at most, once per week for relatively brief periods of less than 30 minutes apiece. Within the context of this limited contact, Ms. Taormina (if she is believed) happened to witness Jean abuse Z.P. on back-to-back visits, while Jean's colleagues, who saw him every workday, never noticed anything amiss. Logically, there are, broadly speaking, two possible explanations for this anomalous situation. First, Jean might have abused Z.P. only when Ms. Taormina was present in the classroom, which would explain why no one else ever saw him mistreat the student, so long as the failure of the four other adults in the room on October 11 to witness the alleged misconduct——a lack of attentiveness that defies reasonable expectations——is overlooked. Given that Ms. Taormina's brief weekly visits comprised such a tiny percentage of Jean's total time with the students, however, to abuse Z.P. only in her presence probably would have required Jean to act according to a plan, which beggars belief;2/ otherwise, Ms. Taormina's presence at the very moments that all such abuse occurred was a most remarkable coincidence. At any rate, while the probability that Jean abused Z.P. only when Ms. Taormina was around to witness his misdeeds is perhaps greater than zero percent, the undersigned regards this explanation as far too implausible to be considered likely. Alternatively, and likelier, Jean might have abused Z.P. not only in Ms. Taormina's presence, but also in her absence. Because Ms. Taormina is the only person who has ever claimed to have seen Jean mistreat Z.P., however, to accept this explanation requires believing that Jean's co-workers never saw him abusing Z.P., or that everyone who witnessed such abuse except Ms. Taormina resolved not to report it.3/ Yet both situations are unworthy of belief. More likely than not, if Jean were abusing Z.P. at times when Ms. Taormina was not in the room, which was most of the time, then at some point over the course of seven weeks Mr. Montalbano or one of the paraprofessionals would have noticed something wrong4/——and none of them did, as found above. Similarly, it is difficult to imagine——and impossible reasonably to infer in the absence of any supporting evidence——that another teacher or paraprofessional, or some combination of these employees, would fail to report suspected child abuse and lie under oath to protect Jean. In any event, the undersigned has found that Jean's fellow employees never saw Jean abuse Z.P., which means that, in all likelihood, Jean did not abuse Z.P. when Ms. Taormina was not in the room. In sum, it is unlikely that Jean repeatedly abused Z.P. only in Ms. Taormina's presence; and yet, it is unlikely that Jean ever abused Z.P. during the vast majority of the time when Ms. Taormina was not in the room (but another adult or adults typically were). Therefore, the logical conclusion is that Jean likely never abused Z.P. at all, contrary to Ms. Taormina's allegations. The foregoing reasons are sufficient for the undersigned to reject Ms. Taormina's testimony as ultimately unpersuasive and to find that the School Board has failed to prove its allegations against Jean. Nevertheless, Ms. Taormina was a good witness in many respects. Her story has been consistent, her recollection seemingly clear, her testimony vivid and detailed. Ms. Taormina is articulate and her demeanor at hearing suggested sincerity. She had barely known Jean before the events at issue and was not shown to have had grounds to dislike him or any other motive for damaging him with false allegations of misconduct. Thus, while not necessary to the disposition, it is desirable to examine Ms. Taormina's specific accusations in greater detail. Ms. Taormina claims that on October 4, 2013, while Z.P. was lying on his back on the floor, Jean spun Z.P. around, using the student's legs as a handle for twirling the boy's body. Then, she says, Jean tapped Z.P. with a ruler to prod him into getting up from the floor. Z.P. refused to rise, and Jean resumed spinning the student. Ms. Taormina recognized that Jean and Z.P. were "playing around" and concluded nothing "abusive" had occurred, but she deemed Jean's conduct "inappropriate." As mentioned, Z.P. is cognitively limited in consequence of Down syndrome. He was also, at the time of the events at issue, aggressive, sometimes mean and abusive towards teachers, including Jean, and known to bite, scratch, kick, and spit on others. Z.P., who was a big boy, could be difficult to redirect. By October 2013, however, Jean had established a rapport with Z.P. The student liked his teacher, and Jean and Z.P. would play with each other. One activity that they enjoyed entailed Jean spinning Z.P. around——which is what Ms. Taormina observed. Except for Ms. Taormina, no one who witnessed Jean playfully spinning Z.P.——which Jean admits doing——considered this activity to be inappropriate. There is no persuasive evidence in the record establishing an objective standard of conduct that Jean might have violated when he played with Z.P. in this manner. Striking Z.P. with a ruler would be another matter, of course. Jean denies ever having done that, however, and no one but Ms. Taormina claims to have observed Jean misbehave in such fashion. The undersigned finds, based on the greater weight of the evidence, that Jean did not hit Z.P. with a ruler on October 4, 2013, as alleged, but rather tapped the floor with it, as he testified. According to Ms. Taormina, Jean's conduct the following week, on October 11, was worse. She testified that, upon arriving in the classroom, she noticed that Jean's fingers were resting on the back of Z.P.'s neck as he (Jean) moved the student around. To Ms. Taormina, "it looked . . . like [Jean] was searching for, like, a pressure point or tender point . . . ." In fact, Jean was not searching for a pressure point, and he did not dig his fingers into a tender spot on Z.P.'s neck, which explains why no one (including Ms. Taormina) saw or heard the student cry out or grimace in pain. The undersigned credits Jean's testimony that he touched Z.P.'s back and shoulders to guide or comfort him, not to hurt him. Ms. Taormina asserted that after putting his fingers on the back of Z.P.'s neck, Jean gave Z.P. a "violent shaking" which caused Z.P.'s head to rock up and down ("just flapping back and forth") so fast that Z.P.'s features were an unrecognizable blur, but only for "just a few seconds." Somewhat incongruously, however, she characterized this "mockery" as being "more, like, playing" and noted that Jean, who was smiling, did not appear to be acting out of anger. The behavior that Ms. Taormina recounted is indeed disturbing. Yet some of the details seem a bit off. For example, although no expert testimony was presented, the undersigned's rudimentary understanding of simple biomechanics makes him think that violently shaking a passive or helpless person so hard that his features become blurry (assuming this could be accomplished in just a few seconds' time) would cause the victim's dangling head, not to flap up and down (rapidly nodding), as Ms. Taormina described, but to rotate uncontrollably. The undersigned finds it difficult, too, to imagine that such abuse could ever look "like playing." Moreover, it seems peculiar, given the number of adults in the room, that Ms. Taormina did not immediately intervene or speak up to protect Z.P., if Jean were harming the student as she has stated. More important, it is likely that a vigorous physical battery such as the attack on Z.P. that Ms. Taormina recalls would have caused a considerable commotion. And yet, even though there were four other adults in the room besides Jean and Ms. Taormina, no one but the occupational therapist noticed Jean inflicting this alleged abuse. The undersigned cannot find, based on the greater weight of the evidence, that Jean violently shook Z.P. as alleged. This incident, therefore, was not proved. After Jean allegedly shook Z.P., according to Ms. Taormina, the student climbed up on a table, where he proceeded to eat a banana. Ms. Taormina testified that all of the students and adults in the room (except her) laughed at Z.P. when someone exclaimed that he looked like a monkey. She said that Jean then led Z.P. to a garbage can and made him spit out the piece of banana in his mouth. When Z.P. got down on the floor afterwards, said Ms. Taormina, Jean hit the student with a broom to compel him to stand and, having no success with that, lifted Z.P. by his shirt and pants and shook him a few times before standing the boy upright. Once on his feet, Z.P. wet his pants, Ms. Taormina stated. Based on a preponderance of the evidence, the undersigned finds that Z.P. did, in fact, eat a banana while standing on a table. Further, Jean did hustle Z.P. to the garbage can to spit out the banana in his mouth because the boy was gagging on the fruit. The evidence does not support a finding that the adults laughed at Z.P., although one student did call him a monkey, which prompted Jean to reprimand the offender. The evidence does not support a finding that Jean struck Z.P. with a broom, an act of abuse which Jean credibly denied, or that Jean picked up Z.P. and shook him, a feat which likely could not be accomplished, given the student's size and weight, and which Jean credibly denied. Z.P. did urinate on himself, as Ms. Taormina reported, but the greater weight of the evidence establishes that this was not a response to stress, fright, or abuse, but a common occurrence. In sum, the evidence does not support a determination that Jean likely mistreated Z.P. as alleged. Determinations of Ultimate Fact The greater weight of the evidence fails to establish that Jean is guilty of the offense of immorality as defined in Florida Administrative Code Rule 6A-5.056(1).5/ The greater weight of the evidence fails to establish that Jean is guilty of the offense of misconduct in office, which is defined in rule 6A-5.056(2).6/ The greater weight of the evidence fails to establish that Jean is guilty of incompetency, which is defined in rule 6A-5.056(3).7/ It is undisputed that Jean was never charged with, much less found guilty of, any crime as a result of the events which gave rise to this proceeding. Therefore, the School Board does not have just cause to terminate his employment pursuant to section 1012.33(1)(a), Florida Statutes, for "being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order exonerating Jean of all charges brought against him in this proceeding, reinstating him as an ESE teacher, and awarding him back salary as required under section 1012.33(6)(a). DONE AND ENTERED this 23rd day of December, 2014, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 2014.
The Issue The issue in this case is whether there is just cause to terminate Lontay Finney's employment with Palm Beach County School Board based upon the allegations made in its Petition.
Findings Of Fact Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within Palm Beach County, Florida. Article IX, Fla. Const.; § 1001.32, Fla. Stat. Petitioner has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Finney started his employment with the School Board on December 19, 2005. He was employed pursuant to an annual contract. Finney taught at Glades Central High School ("Glades Central") from 2010 through 2015. He was last employed as both a science teacher and assistant athletic director. Finney's annual evaluations were acceptable and effective during each year of his employment at Glades Central. As a teacher, Finney was expected to comply with the Code of Ethics. On June 1, 2010, he signed an acknowledgment that he received training, read, and would abide by School Board Policy 3.02, Code of Ethics. Reniqua Morgan ("Morgan") was a female student at Glades Central from 2011 to 2015. She was a cheerleader athlete but never had Finney as a teacher. Finney knew of Morgan as one of the daughters of his teacher colleague, Renee Johnson Atkins ("Atkins") and from seeing Morgan around school. Morgan and Finney also knew who each other were because they had a niece in common and lived in the small town of Belle Glade. However, Finney and Morgan did not associate with one another directly before March 2015. On or about March 22, 2015, Finney initiated contact, reaching out to Morgan by poking her on Facebook. Morgan poked him back and then Finney followed up by inboxing her next. Morgan was surprised that Finney was conversing with her. They continued to chat for several weeks not on an open feed of Facebook but messaging each other's inbox privately. Between 10:30 and 11:00 p.m. on Sunday, April 12, 2015, Finney initiated a conversation with Morgan and they chatted on Facebook. Finney suggested that the two of them get together and asked Morgan, do you want to "chill?" Morgan agreed and said "I don't mind." They then decided to meet up. Finney did not offer to pick Morgan up at her house. Finney instructed her to meet him at the stop sign, around the corner and down the street from where she lived.1/ Morgan, unbeknownst to her mother, met Finney by the stop sign. At the stop sign, Morgan got in Finney's mother's truck with Finney. When Finney first made contact with Morgan that night, he gave her a hug. He then drove her to his home. At all times relevant to these proceedings, Morgan was a 17-year-old minor. Finney did not have permission from Morgan's parents to either pick her up or take her to his house. His inappropriate actions were outside of school and not in connection with any school-related activity in any way. At approximately 12:24 a.m. on Monday, April 13, 2015, Morgan's mother, Atkins, was at her residence and went to use the restroom and she then discovered that Morgan was not at home. Morgan had left home without her permission. Atkins was worried about Morgan being out that early in the morning because it was "unsafe because [of] the neighborhood that [she] live[d] in, there [were] some people in that neighborhood that [were] unsafe."2/ While at Finney's house, Finney and Morgan remained in the parked truck alongside of the house alone together for approximately an hour and a half to two hours and spent some of the time talking and scrolling through Netflix on Finney's phone. Neither Morgan nor Finney can recall the name of any of the movies they watched on Netflix. Morgan's mother was looking for Morgan and found out from Bethanie Woodson ("Woodson"), Morgan's friend, that her daughter was with Finney. Atkins took Woodson with her and drove to Finney's house looking for Morgan. While in the truck with Finney, Morgan's friend contacted her and let her know that her mother was looking for her. Morgan told Finney she needed to go home. Atkins also learned while at Finney's house that Morgan was on the way home, so she got back in her vehicle and returned home. Morgan told Finney to drop her off near the railroad track, which is not the same place he picked her up. He then dropped her off where she suggested near Avenue A, a neighborhood on the opposite side of the railroad tracks from where Morgan lived, and several blocks away from her home. After Finney dropped Morgan off in the early school day morning while it was dark outside, Morgan had to walk down the street, come through the neighborhood and then walk across the bushy railroad tracks to get to her residence. The foot path Morgan took was also unlit, grassy, and rocky near the train tracks. No streetlights were near the tracks.3/ When Morgan got home, her mother, sister, and Woodson were waiting for her. Morgan's mother was irate that Morgan had been with Finney and drove Morgan back to Finney's home to address his actions with her daughter. Finney lived with his parents. When Atkins knocked on the door, Finney's father came to the door and Atkins requested to see Finney. Atkins confronted him angrily and berated him for being a teacher, picking up Morgan, and taking her to his house at that hour of the night. Atkins also informed Finney's mother what occurred while she was at their house. Morgan and Finney have had no contact since the incident. Morgan's mother reported the incident to Glades Central. As a result, the principal assigned Finney to his residence by letter, with pay, starting April 13, 2015, pending the investigation or notification of a change in assignment in writing. On April 15, 2015, Finney was assigned to temporary duty at Transportation Services pending investigation. An investigation by the school police found no violation of a criminal law by Finney, and the case was referred to Petitioner's Office of Professional Standards, which is charged with conducting investigations into alleged violations of School Board policy. On or about May 11, 2015, the Office of Professional Standards opened an administrative investigation. Dianna Weinbaum ("Weinbaum"), now director of Office of Professional Standards and former human resources manager, was assigned to investigate the matter. Around the time the investigation was being conducted, Finney deactivated his Facebook page due to the mostly negative comments and statuses, as well as rumors surrounding the incident of him picking up Morgan and taking her to his house. Finney was able to finish the school year working back at Glades Central between investigations. Weinbaum performed a thorough and complete investigation regarding the allegations against Respondent. She interviewed all the witnesses and obtained statements, as well as visited the locations where Finney picked up and dropped off Morgan. On August 4, 2015, consistent with District policy, Respondent was removed from the classroom and reassigned from his teaching position back to a temporary duty location again. On October 8, 2015, a pre-determination meeting was held with the director of the Office of Professional Standards and Finney, who was represented by counsel regarding the interactions between Finney and Morgan. Finney was provided a copy of the investigative file. At the end of the investigation, it was determined that Finney's actions were both an inappropriate relationship with Morgan and posed a clear threat to Morgan's health, safety and welfare. Weinbaum recommended discipline for Finney consistent with discipline received by other employees based on the superintendent and School Board's position that employees who engage in inappropriate relationships with students and who endanger the health, welfare and safety of a child will be terminated. On November 19, 2015, Petitioner notified Finney of the superintendent's recommendation for termination of his employment at the School Board Meeting set for December 9, 2015. The School Board accepted the superintendent's recommendation and voted to suspend Finney for 15 days and thereafter terminate his employment. Finney timely requested a hearing to contest the superintendent's recommendation. Finney's disciplinary history does not include any discipline for actions similar to these for which suspension and termination are recommended. Petitioner charged Finney by Petition with soliciting an inappropriate relationship with a student that jeopardized her health, safety and welfare. The Petition charged Finney with the following violations: School Board Policies 0.01(2)(c),(2)(f) Commitment to the Student Principle 1; 3.02(4)(a)(b)(d)(e),(g); 3.02 5(a),(a)(iii),(a)(v),(a)(vii); Code of Ethics; 1.013(1) and (4), Responsibilities of School district Personnel and Staff; School Board Policies 1.013 and 3.27, Criteria for Suspension and Dismissal, and Code of Ethics of the Education Profession in Florida; the Collective Bargaining Agreement Article II, Section M; and (C) Rule 6A-5.056 (2)(a),(b) and (4) F.A.C., Criteria for Suspension and Dismissal; 6A-10.081 (3)(a) and (3)(e), F.A.C.; 6A-10.080(1),(2) and (3) F.A.C. Code of Ethics for the Education Profession of Florida; and 6A-10.081(3)(a) and (3)(h) F.A.C. Principles of Professional Conduct for the Education Profession. During the final hearing in this matter, Finney testified that his decision to drive Morgan to his house "was a lapse in judgment and it was just a bad decision that I made." At hearing, the testimony and exhibits established that Finney initiated contact with Morgan and solicited an inappropriate relationship with a student that jeopardized her health, safety and welfare.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Palm Beach County School Board, enter a final order: dismissing charges of violations of policies 0.01(2)6., 3.02(4)(a), (d), (e), and (g); 5(a), (a)(iii), (a)(v), and (a)(viii); 1.013(4); and rule 6A-10.081(3)(e) and (h); finding Respondent in violation of rules 6A-10.080(2) and (3), 6A-5.056(2), 6A-10.081(3)(a), policies 0.01(2)3., 1.013(1), 3.02(4)(b), and 3.02(5)(a)(vii), as charged; and upholding Respondent's suspension without pay and termination for just cause. DONE AND ENTERED this 4th day of January, 2017, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 2017.
The Issue The issue in this case is whether a schoolteacher physically assaulted three third-graders in his music class, thereby giving his employer, the district school board, just cause to terminate his employment.
Findings Of Fact Background The Miami-Dade County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. At all times relevant to this case, Respondent Manuel Brenes ("Brenes") was a music teacher at Little River Elementary School ("Little River"), which is within the Miami-Dade County Public School System. The alleged events giving rise to this case allegedly occurred on November 18, 2005. The School Board alleges that on that date, Brenes lost his temper in the classroom and physically assaulted three students, each of whom was in the third grade at the time and about nine or 10 years old. More particularly, it is alleged that Brenes poked a boy named K. C. in the head several times; choked, slapped, and/or picked up and dropped another boy, K. M.; and threw a chair at a third boy, whose name is C. P. For his part, Brenes denies these charges, claiming that his interventions were neither assaultive nor potentially harmful, but rather were reasonably necessary either to protect students from harm or to maintain order. There is no question that an incident occurred in Brenes's classroom on November 18, 2005, and that the students K. C., K. M., and C. P. were involved. The evidence adduced at hearing, however, is conflicting, confusing, and often incredible, affording the fact-finder little more than a fuzzy picture, at best, of what actually happened. Five eyewitnesses to the disputed incident testified. These were four student-accusers (comprising the three alleged victims and one of their classmates, a girl named "Kate"1) plus the accused teacher himself. In addition, Pamela C. ("Ms. C."), who is the mother of K. C. and also a teacher at Little River, testified regarding her observations and impressions as the "first responder" to arrive on the scene after the disputed incident had taken place. (To be clear, Ms. C. did not see Brenes commit any wrongful act; she has maintained——and testified——that Brenes made incriminating admissions to her in the immediate aftermath of the events at issue.) None of these witnesses impressed the undersigned as wholly reliable; rather, each had credibility problems that have caused the undersigned to discount his or her testimony to some degree. For example, every eyewitness who testified at hearing had made at least one prior statement about the incident that differed in some unexpected way from his or her subsequent testimony. Moreover, to the extent sense can be made of any given eyewitness account, there exist material discrepancies between the witnesses' respective stories. The upshot is that the undersigned does not have much persuasive, coherent, consistent evidence upon which to make findings of fact. Given the generally poor quality of the evidence, which ultimately precludes the undersigned from making detailed findings of historical fact, a brief summary of the key witnesses' testimonies about the controversial event will next be provided. These summaries, it is believed, give context to the limited findings of historical fact that then follow; they also should help explain the determinations of ultimate fact derived from the findings. It is important to note, however, that the summaries below merely report what each witness said occurred; they do not necessarily, or even generally, correspond to the undersigned's findings about what likely took place in Brenes's classroom on November 18, 2005. K. C. K. C. testified that the incident began when one of the boys told a joke that made "the whole class" laugh. Brenes was teaching a lesson at the time, writing on the board. Whenever Brenes faced the board, this particular boy would make "funny faces behind ["Brenes's] back," and when Brenes turned around, the boy would sit down. One student, C. P., continued to laugh, and Brenes made him stand in the corner. Undeterred, C. P. kept laughing. Brenes grabbed the two front legs of a chair, lifted it over his head, and threw the chair at C. P., who "ducked to the ground" to avoid being hit. After that, C. P. was frightened and remained on the ground "for like five minutes." Brenes told the students to put their heads down. He walked over to K. C. and poked the boy in the head three times, apparently for no reason. Then Brenes grasped K. M. by the throat and lifted the student, with one arm, off the ground and over his (Brenes's) head. While holding K. M. in the air by his throat, Brenes shook and slapped the boy before using two arms to set him down. A short while later, Ms. C. entered the classroom, having been summoned by Brenes. K. C. told his mother what had just occurred. Their conversation, as Ms. C. remembers it, will be recounted below. Angered and upset by what her son had reported, Ms. C. removed K. C. from Brenes's classroom and took him back to her own room. There, on November 18, 2005, K. C. wrote the first of two statements about the incident. K. C.'s second statement, dated November 23, 2005, was written in his mother's classroom as well. The most noteworthy discrepancy between K. C.'s prior written statements and his testimony at hearing is the absence of any mention in the prior statements about Brenes having poked him in the head.2 Asked at hearing about this omission, K. C. testified that he had "forg[o]t[ten] that part" because Ms. Castillo (the principal) rushed him to complete his statements.3 K. M. K. M. testified that "everybody was laughing" because the classroom smelled bad. Brenes put C. P. in the corner and then threw a chair at him. C. P. moved or ducked, however, and hence he was not struck by the chair. Brenes hit K. C. on the head. Then Brenes caught K. M. laughing at him (Brenes). Consequently, Brenes grabbed K. M. by the throat with both hands, lifted him out of his seat, and held him in midair, so that his feet were off the ground. Brenes held K. M. at arm's length, with his arms straight out from his body, for about one "second" before setting the boy down. Brenes did not shake or slap K. M., who was able to breathe while Brenes held him by the neck, suspended off the ground; indeed, K. M. never felt as though he were choking, even as he was practically being hanged. Shortly thereafter, K. M. wrote a statement about the incident, which is dated November 22, 2005. In the statement, K. M. made no mention of Brenes's having thrown a chair, nor did he report that Brenes had hit K. C. in the head, as he would testify at hearing. C. P. According to C. P., the trouble began when K. M. made C. P. laugh, which was sufficiently disruptive that Brenes told C. P. to stand in the corner. This discipline proved to be ineffective, for C. P. continued to laugh. C. P.'s ongoing laughter caused Brenes to grab a chair and walk quickly ("a little bit running") towards C. P. The boy ducked, and the chair, which remained in Brenes's hands and was not thrown, struck the wall. C. P. was unable to give consistent testimony at hearing concerning the distance between his body and the spot where the chair hit the wall. In different answers he indicated that the chair struck as near to him as two or three feet, and as far away as 20 feet. Brenes put the chair down, nowhere close to any students, and told the children to put their heads down. C. P. finally stopped laughing. In a discovery deposition taken before hearing, C. P. had testified that he thought Brenes's use of the chair as a disciplinary tool was funny. At hearing, however, he claimed that he had "just made that up" and given false testimony at the deposition. C. P. testified that Brenes had swung him by the arm, but he could not keep straight when this had occurred. At first, C. P. said that Brenes had taken his arm and swung him after sending him (C. P.) to the corner, because C. P. had kept on laughing despite the mild punishment. Then, because C. P. "was still laughing," even after having been swung by the arm, Brenes had rushed at him with a chair, ultimately causing the boy to quit laughing. Later in the hearing, however, C. P. changed his story and explained that Brenes had grabbed his arm and swung him around after the "chair affair"——when C. P. was no longer laughing——for the purpose of leading him back to his seat. Yet another version of the "arm swinging" episode appears in a prior statement dated November 21, 2005, wherein C. P. wrote that after Brenes had threatened him with a chair, he (C. P.) "was still laughing so [Brenes] took my arm and he [swung] me." Testifying about what Brenes did to K. M., C. P. stated that the teacher had taken K. M. by the neck and shaken him, lifting the boy up from his chair and then putting him back down, all because K. M. had been laughing. This testimony corresponded fairly closely to C. P.'s statement of November 21, 2005. Interestingly, however, on December 13, 2005, C. P. had told the detective who was investigating the charges against Brenes that Brenes merely had grabbed K. M. by the shirt and placed him back on his chair because K. M. was "playing around." C. P. also informed the detective that "the class [had been] laughing and playing, and Mr. Brenes was trying to stop them." C. P. said nothing at hearing about Brenes's allegedly having struck K. C. on the head. Likewise, he did not mention, in his written statement of November 21, 2005, the alleged attack on K. C. However, C. P. did tell the detective on December 13, 2005, that he had seen Brenes "tap" K. C. on the head. Kate Kate was in the classroom when the disruption occurred, although she did not see "all of it, really." She testified that, at the beginning of class on November 18, 2005, while Brenes was calling the roll, some boys were talking and laughing, and they kept on laughing even after Brenes had instructed them to stop. C. P. was one of the laughers. Brenes made him stand in the corner. The laughter continued, so Brenes got up and threw the chair on which he had been sitting toward the wall where C. P. was standing. The chair flew across the room, in the air, and hit the wall. C. P. ducked and was not harmed. Meantime, K. M. was laughing. Brenes "grabbed him up" and talked to him. K. M. started to cry, and Brenes let him go. Kate did not see anything untoward happen to K. C. Rather, Brenes "just talk[ed] to him, because he was laughing, too." After the incident, Kate prepared a written statement, which is dated November 21, 2005. As far as it went, her hearing testimony was essentially consistent with her prior statement. The prior statement, however, contains an additional detail about which she said nothing at hearing. In her statement, Kate wrote that, after throwing a chair in C. P.'s direction, Brenes took a table and hit a desk with it, causing the desk to hit the wall. Ms. C. Ms. C. was at lunch on the day in question when two students approached her with a request from Brenes that she come to his classroom, where her son was presently supposed to be having a music lesson. Ms. C. told the students that she would be there in about five minutes. When Ms. C. arrived, Brenes's students were well- behaved and "sitting very quietly." Brenes informed Ms. C. that her son, K. C., had been disrespectful to him, in particular by laughing at Brenes as though he were "a stupid person." Upon learning of her son's misbehavior, Ms. C. was neither perturbed nor nonplussed, but skeptical; she immediately demanded an explanation from Brenes: "How do you know when someone is laughing at you as though you're a stupid person?" After being persuaded that her son had behaved badly, Ms. C. reprimanded him in front of the class. Brenes thanked Ms. C. for coming, and she turned to leave. Before taking his seat, K. C. said, "But mommy, that's not all that happened." "What happened?" she asked. "Mr. Brenes poked me in the head," replied K. C. Ms. C. asked Brenes if this were true, and Brenes admitted that he had "tapped" K. C., but not hard enough to cause pain. Ms. C. started to leave, but K. C. stopped her again: "But mommy, that's not all." Thereupon, an exchange ensued much like the one just described, except this time, K. C. reported that Brenes had thrown a chair at C. P. "Mr. Brenes, did you throw the chair?" Ms. C. asked. Again, Brenes admitted that the accusation was true, but denied endangering the children. Before Ms. C. could leave, K. C. stopped her for the third time, saying, once again, "But mommy, that's not it." This initiated the now-familiar pattern of dialogue. K. C. accused Brenes of having picked up K. M. and dropped the boy "hard." Ms. C. asked Brenes if he had done that. Brenes conceded that he had, yet he assured Ms. C. that the children had never been in danger. Ms. C. had heard enough. She instructed K. C. to leave the classroom with her, which he did. The two of them proceeded directly to the principal's office. Ms. C. reported the incident to the principal. After listening to Ms. C. and her son, the principal decided to have Brenes removed from his class, and she called the school police. (Evidently, it was not thought necessary to hear from Brenes before taking these actions.) Brenes was kept out his class for a day or two but then was allowed to return to his regular duties. This upset Ms. C., who felt that "nothing was being done." As a result, Ms. C. "took it upon [her]self" to call the School Board's "Region Office" and lodge a complaint in her capacity as parent. Ms. C. was told to prepare an "incident report," which she did, on November 22, 2005. She submitted the incident report the following day. Shortly thereafter, Brenes was removed from Little River and administratively reassigned to the Region Office pending the outcome of the investigation. Brenes On November 18, 2005, Brenes met a class of third- graders at the cafeteria and took the students to his music room for a lesson. At the time, his music classes were being held in a portable classroom because Brenes's regular room had been damaged in a hurricane. Brenes's temporary classroom had an unpleasant odor. The room's bad smell caused the children to go "berserk" upon arrival; many began running around and misbehaving. One of the boys, C. P., pushed another student to the floor. The tables in the room were on wheels, and some of the children were pushing a table toward the boy on the ground. Brenes pushed the table out of the way, so that the student would not be hurt.4 Meantime, K. M. was engaging in horseplay, throwing himself off his seat and landing on the floor. Brenes viewed this misbehavior as not just disruptive, but potentially dangerous, so he took hold of the naughty child at the waist, lifted him up off the floor, and placed him back on his seat where he belonged.5 The students continued to be disruptive, so Brenes tossed a chair toward the wall, away from all the students, to grab their attention and stop the rowdy behavior.6 This quieted the students down——except for K. M., who started running for the door, where C. P. was standing with his arm outstretched, blocking K. M.'s path. Brenes rushed over and pulled C. P. away from the door to prevent a dangerous collision.7 Brenes's disjointed testimony fails to give a cogent explanation for why C. P. had been standing next to the door in the first place.8 In a prior statement, however, Brenes reportedly had told the detective that, before having tossed the chair, he had taken C. P., who was misbehaving, by the arm and led him to the corner, where the student was to remain until he had calmed down. This prior statement finds ample corroboration in the students' respective accounts. While the commotion continued, K. C. was laughing at the situation. Walking past the student's desk, Brenes tapped K. C. gently on the head and told him to quit laughing. About this time, the students calmed down and became quiet. Brenes commenced teaching his lesson for the day, and thereafter the class paid attention and stayed on task. Near the end of the period, Ms. C. appeared in the classroom, having been summoned by Brenes earlier when her son (among others) was misbehaving. Brenes was not asked at hearing to recount the particulars of his conversation with Ms. C. Whatever was said, however, resulted in Ms. C.’s yelling at Brenes in front of the whole class. Brenes, trying to defuse this awkward situation, became apologetic and attempted to explain what had happened, but to no avail. Ms. C.——who took her little boy's word against Brenes's——would not let Brenes tell his side of the story. Resolutions of Evidential Conflict Regarding the Disputed Event It is not the School Board's burden to prove to a certainty that its allegations are true, but only that its allegations are most likely true; for dismissal to be warranted, in other words, no more (or less) must be shown than that there is a slightly better than 50 percent chance, at least, that the historical event in dispute actually happened as alleged. As the fact-finder, the undersigned therefore must consider how likely it is, based on the evidence presented, that the incident took place as alleged in the School Board's Notice of Specific Charges. Having carefully evaluated the conflicting accounts of the disputed event, the undersigned makes the following findings concerning what happened in Brenes's classroom on November 18, 2005. It is highly likely, and the undersigned finds with confidence, that the incident stemmed from the misbehavior of students who were cutting up in class and generally being disruptive. There were, however, neither allegations, nor proof, that Brenes was in any way responsible for this misbehavior. Rather, it is likely, and the undersigned finds, that the children became boisterous in consequence of the classroom's foul odor. The students K. C., K. M., and C. P. were the ringleaders of the rowdy students, and, in the course of the event, Brenes was compelled to redirect each of them. More likely than not, C. P. was the worst behaved of the three main offenders. Because C. P. was clowning around, Brenes placed him in the corner. It is likely that when he did this, Brenes took C. P. by the arm and led him to the spot where he was to stand. The evidence is insufficient to persuade the undersigned that Brenes touched C. P. in a manner that was intended, or reasonably would be expected, to cause harm or discomfort; it is possible that this occurred——the odds, on this record, being roughly in the range of 25 to 40 percent——but not likely. As for what exactly happened with K. M., the undersigned can only speculate. The undersigned believes that the likelier of the possibilities presented is that the boy was rolling off his chair and flopping to the ground, more or less as Brenes described K. M.'s disruptive activity (although Brenes probably exaggerated the risk of danger, if any, this misbehavior posed to the child). The likelier of the scenarios presented (having a probability somewhere in the neighborhood of 35 to 50 percent) is that Brenes physically returned the boy to his chair, picking him up in a reasonable, nonpunitive fashion and similarly setting him back down.9 The possibility that Brenes strangled the boy, as charged, is relatively low——between 15 and 30 percent——but nevertheless nontrivial and hence bothersome, given the seriousness of the accusation. That said, however, the undersigned is unable to find that any of the possibilities presented is more likely than not true. Therefore, the School Board's proof fails as a matter of fact on the allegation that Brenes choked, slapped, or otherwise assaulted K. M. Brenes admits having tossed a chair, a point that is corroborated (to some degree) by all of the eyewitnesses except, ironically, C. P., the student toward whom the chair was allegedly thrown. Brenes, however, denies having tossed a chair at any student, and the undersigned credits his denial. More likely than not, it is found, Brenes tossed a chair away from the students, as he initially claimed, to focus the students' attention on something other than the rambunctious boys who were creating a disturbance. (The undersigned doubts that the chair was tossed to prevent injury, as Brenes asserted at hearing.) Brenes also admits that he tapped K. C. on the head while urging the boy to be quiet. It is likely——and indeed Brenes effectively has admitted——that this was done as a disciplinary measure. Brenes denies, however, that he tapped the child in a manner intended, or as reasonably would be expected, to cause harm or discomfort. The undersigned credits Brenes's denial in this regard and therefore rejects as unproven by a preponderance of the evidence the charge that the teacher forcefully "poked" K. C. in or about the temple. Other Material Facts The evidence is undisputed that after Brenes had gotten the three rowdiest boys under control——which seems to have taken but a few minutes——the rest of the class fell in line and behaved for the balance of the period. It is reasonable to infer, and the undersigned does find, that whatever actions Brenes took were effective in restoring order to the class. That is to say, Brenes's conduct did not create chaos, but quelled a disturbance that, from every description, could have gotten out of hand. Such efficacy would not justify improper means, of course, but the results Brenes obtained counsel against any easy inference that his alleged misconduct impaired his effectiveness in the classroom. Continuing on the subject of Brenes's alleged ineffectiveness in consequence of his alleged misconduct, the undersigned is struck by the undisputed fact that, notwithstanding the accusations that had been lodged against Brenes, the principal of Little River allowed the teacher to return to his classroom after spending one day in the library. Thereafter, he taught his music classes, as usual, for five or six days before being administratively assigned to the Region Office effective on or about December 5, 2005. The significance of this fact (Brenes's post-incident return to the classroom) lies in the opportunity it afforded the School Board to observe whether Brenes's alleged misconduct actually had, in fact, impaired his effectiveness as a teacher. As the fact-finder, the undersigned cannot help but wonder: What happened in Brenes's classroom in the next two weeks after the incident? The School Board did not provide an answer. Instead, it presented the conclusory opinions of administrators who declared that Brenes could no longer be effective, which opinions were based on the assumption that all the factual allegations against Brenes were true. Because that underlying assumption was not validated by the evidence adduced in this proceeding, however, these opinions lacked an adequate factual foundation. Moreover, the undersigned infers from the absence of any direct proof of actual impairment that Brenes's effectiveness stayed the same after November 18, 2005.10 While Brenes was spending time at the Region Office pending the outcome of the investigation, another teacher who also was awaiting the results of an investigation began to pick on Brenes, ultimately provoking Brenes into an argument on a couple of occasions. During one of these arguments, Brenes responded to his antagonist by saying, "fuck you." While this profanity might have been overheard by other adults nearby (the evidence is inconclusive about that), it is clear that no students were around. Brenes was the only witness with personal knowledge of these arguments who testified at hearing; in lieu of firsthand evidence, the School Board offered mostly hearsay that failed to impress the fact-finder. In light of Brenes's uncontroverted testimony that the other man had been badgering him "for the longest time," the fact that Brenes lost his temper and used vulgar language, while unadmirable, is at least understandable. The bottom line is, this was a private dispute between adults, one of whom——the one not accused of wrongdoing as a result——was actually more at fault as the provocateur. Determinations of Ultimate Fact The greater weight of the evidence fails to establish that Brenes is guilty of the offense of misconduct in office. The greater weight of the evidence fails to establish that Brenes is guilty of the offense of violating the School Board's corporal punishment policy. The greater weight of the evidence fails to establish that Brenes is guilty of the offense of unseemly conduct. The greater weight of the evidence fails to establish that Brenes is guilty of the offense of violating the School Board's policy against violence in the workplace.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order: (a) exonerating Brenes of all charges brought against him in this proceeding; (b) providing that Brenes be reinstated to the position from which he was suspended without pay; and (c) awarding Brenes back salary, plus benefits, that accrued during the suspension period, together with interest thereon at the statutory rate. DONE AND ENTERED this 27th day of February, 2007, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 2007.
The Issue The issues for determination are whether Respondent's suspension should be upheld and whether his employment with Petitioner should be terminated, as set forth in Petitioner's action letter dated August 21, 2003.
Findings Of Fact At all times material hereto, the School Board was a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to Article IX, Florida Constitution, and Section 1001.32, Florida Statutes (2002). At all times material hereto, Mr. Moore was employed full-time with the School Board as a paraprofessional at Robert Renick Educational Center (Renick) and subject to the rules and regulations of the School Board in accordance with Section 1012.33, Florida Statutes (2002). The UTD Contract, between the School Board and UTD, also governs the terms and conditions of Mr. Moore's employment. In April 1977, Mr. Moore began his employment with the School Board and was assigned to Renick. He remained at Renick as a paraprofessional through February 9, 2003. In December 1996, prior to beginning his employment with the School Board, Mr. Moore was charged with possession of stolen property and driving with a suspended license and an expired registration. A few months later, on February 20, 1997, Mr. Moore completed an application for employment with the School Board and indicated on the application that he had no criminal charges pending. However, at the time that he made application for employment, the charges of December 1996 were pending. Mr. Moore does not contest several performance problems and deficiencies for the period October 19, 1998 through March 10, 2002. By memorandum dated October 27, 1998, Mr. Moore was notified by the assistant principal, James DeWitt, that he violated School Board policy on October 19, 1998, by allowing a student to be in possession of the key to his classroom. Mr. DeWitt advised Mr. Moore that a reoccurrence of the violation would lead to a conference-for-the-record. By memorandum dated October 17, 2000, Mr. Moore was notified by Mr. DeWitt that he had arrived late at school that same day without notifying the main office of his tardiness in accordance with the UTD Contract. Mr. DeWitt directed Mr. Moore to adhere to the established work hours and advised Mr. Moore that further failure to adhere to his work schedule would result in disciplinary action. By memorandum dated November 2, 2000, Mr. Moore was notified by Mr. DeWitt that, on November 1, 2000, he (Mr. Moore) was playing a game on his computer while the students were taking a test even though he was required to monitor the test; and that his (Mr. Moore's) failure to supervise and monitor the test resulted in a student writing the answers in the wrong section of the test. Mr. DeWitt directed Mr. Moore to adhere to his duties in his job description and advised Mr. Moore that, among other things, his lack of supervision would not be tolerated and that his failure to adhere to the duties would result in disciplinary action. By memorandum dated March 5, 2001, Mr. Moore was notified by the principal, Eugenia Smith, that, among other things, he was on leave without authorization for 17 days of the 2000-2001 school year, from February 8, 2001 through March 5, 2001. Ms. Smith directed Mr. Moore to, within three (3) days of the date of the memorandum, provide his intended date of return or resign from employment with the School Board. By memorandum dated December 20, 2001, Mr. Moore was notified by Mr. DeWitt that, on December 5, 2001, because of his (Mr. Moore's) lack of supervision, a student pushed the emergency call button twice even though no emergency existed. Mr. DeWitt directed Mr. Moore to adhere to his duties in his job description and advised Mr. Moore that his failure to adhere to the duties would result in disciplinary action. By memorandum dated March 8, 2002, Ms. Smith notified Mr. Moore that he had been tardy for several days, specifying the days of tardiness. On March 8, 2002, a conference-for-the-record was held with Mr. Moore to address his tardiness, including noncompliance with verbal and written directives regarding his tardiness. Also present were, Ms. Smith, Mr. DeWitt, and a UTD representative. At the conference-for-the-record Mr. Moore was given specific directives regarding future tardiness, which were to be to work on time and to adhere to procedures in the UTD contract. A summary of the conference-for-the-record dated March 10, 2002, was prepared and was subsequently signed by Mr. Moore. By memorandum dated November 8, 2002, Mr. Moore was notified by Mr. DeWitt that, on November 7, 2002, Mr. Moore's personal telephone was confiscated because it had been used in the classroom as an extension of the school's telephone system. By memorandum dated November 13, 2002, Mr. Moore was notified by Mr. DeWitt that his (Mr. Moore's) use of his personal telephone as an extension of the school's telephone system was a violation of the School Board's policy prohibiting telephones in the classroom unless approved by the administration. Mr. DeWitt directed Mr. Moore to adhere to School Board policies and advised Mr. Moore that failure to do so would result in disciplinary action. Mr. Moore does not contest violating the School Board's policy regarding the use of his personal telephone in the classroom. By memorandum dated January 17, 2003, Mr. DeWitt notified Mr. Moore that, on January 22, 2003, he (Mr. Moore) left the school for approximately one and one-half hour, from approximately 11:50 a.m. to 2:20 a.m., without signing-out as required by the School Board's policy. Mr. DeWitt directed Mr. Moore to adhere to the scheduled work hours and advised (Mr. Moore) that his failure to so adhere would result in further disciplinary action. On January 22, 2003, Mr. Moore was arrested based on an outstanding warrant for the December 1996 charges previously indicated. Renick is a special center for emotionally handicapped and severely emotionally disturbed students. The student's have emotional problems, which interfere with their ability to learn. The teachers, including paraprofessionals, at Renick are specially trained to deal with the behavior problems of the students. The School Board adheres to a graduated system of discipline for students, which consists of the following: first, student conferences are held, then parent conferences, and then parent-teacher conferences; and after the conferences, indoor suspension, then detention, and, lastly, outdoor suspension. Also, located in each classroom is a call button to call security for assistance if needed. The use of profanity and corporal punishment is prohibited by School Board rules. As a paraprofessional with the School Board for several years, Mr. Moore knew or should have known the School Board's graduated system of discipline, rules, and policies. Training is provided for teachers, including paraprofessionals, in the management of students at Renick, who are misbehaving. Also, in-house workshops are provided. The training is "crisis management," which was formerly safe physical management. In crisis management, physical restraint is the last resort; interventions are used instead. A student's parent must consent in writing for the use of physical restraint; however, even without consent, physical restraint may be used for situations that do not de-escalate. If physical restraint is used, the situation must be documented and the student's parent must be notified. One intervention is a prearranged intervention in which the student and teacher agree on a technique to be used by the teacher to make the student aware that his/her behavior is escalating. The prearranged intervention may be, for instance, a pulling of the student's ear. If the prearrange intervention fails to de-escalate the student's behavior, another intervention referred to as proximity control may be used. In this technique, the student feels the teacher's presence by the teacher moving towards the student, which interrupts the student's behavior. If no interventions, whether verbal or non-verbal, de- escalates the student's behavior, which begins to get out-of- control, forms of physical restraint may be used, as a last resort. One form of physical restraint is for the teacher to hold the student with his/her hand to communicate to that student that his/her behavior is escalating, with safety being the primary issue. If the student's behavior continues to escalate, the teacher may resort to a more restrictive restraint such as the cradle. In using this technique, both the student and teacher are standing, with the student having his/her back to the teacher, and the teacher holding the student, with safety being the primary issue. Again, the teacher is attempting to have the student realize that his/her behavior is escalating. If the student's behavior continues to escalate, the teacher may take the student to the floor. One technique used is the cradle assist. In this technique, the student is brought to the floor by the teacher and the student is held by the teacher in a cradle-like position. If the student's behavior continues to escalate, the teacher, with the assistance of a colleague, may hold the student to the floor. Using a colleague, assists the student in calming down. Whenever physical restraint is used, the parents of the student are notified. Furthermore, the student is counseled, and the student's file must be documented regarding the use of physical restraint. Mr. Moore received the training as to the interventions and the physical restraints. Furthermore, he attended at least one in-house workshop. Therefore, Mr. Moore had knowledge of the behavior techniques. A past performance problem involving Mr. Moore and a student was documented by a memorandum dated July 24, 1998 from Mr. DeWitt to Mr. Moore. The memorandum addressed "alleged misconduct" by Mr. Moore committed on July 20, 1998, in which Mr. Moore allegedly choked a student, when he was putting the student in time-out, and used inappropriate language by calling the student a "faggot." Although the memorandum indicated that Mr. Moore stated that he may have grabbed the student's neck, the memorandum did not indicate that the allegation was confirmed. Mr. DeWitt directed Mr. Moore to "refrain from using inappropriate procedures and language" while performing his duties. The statement by Mr. Moore showed that he admitted, not denied, that he did take some action with the student. Regarding incidents with students, the Amended Notice of Specific Charges alleges a specific incident, occurring on December 19, 2002, between Mr. Moore and a student, J. G. Allegedly, Mr. Moore told J. G. that he "was going to kill him" and "for him [J. G.] to meet him [Mr. Moore] at the store in five minutes since he [J. G.] was bad, so they could fight"; and that he "was going to make him [J. G.] his girl"; Furthermore, Mr. Moore allegedly called J. G. a "fat bitch." Additionally, Mr. Moore allegedly told another student, X. W., that he would "fuck X. W.'s mother in the grave" and called X. W. a "faggot." Also, Mr. Moore allegedly grabbed another student, I. J., and subsequently, another student, M. S., and pulled their arms behind their backs and pushed them against a wall. Further, the Amended Notice of Specific Charges contains a general allegation of how Mr. Moore treated students, i.e., "Moore often hit students with a broomstick on the legs and buttocks, pushed students to the ground, picked a student up and slammed him to the floor, wrestled students in the classroom, and often called them gay." As to the general allegation, student D. J. testified regarding Mr. Moore pushing a student to the ground. D. J. testified that he did not want to do his work and attempted to leave the classroom without permission from Mr. Moore; that Mr. Moore would not allow him to leave the room; and that Mr. Moore placed him on the floor, face first, with his (D. J.'s) arms behind his back in a manner that hurt him (D. J.). No one else was in the classroom to witness the alleged incident. No specific time period was provided for the alleged incident. Mr. Moore's testimony did not address this particular incident. In considering D. J.'s credibility, the undersigned must include, as a factor, that the students at Renick have behavior problems but that also the students should expect to be treated in accordance with the School Board's established crisis management techniques. D. J.'s demeanor and candor, during his testimony, detracted from the credibility of his testimony. The undersigned does not find D. J.'s testimony convincing. Even if Mr. Moore engaged in the physical restraint of D. J., the evidence presented fails to demonstrate that Mr. Moore's action was inappropriate under the circumstances. D. J. was attempting to force his way out of the class. However, Mr. Moore failed to document the incident and notify D. J.'s parents that physical restraint was used. Also, as to the general allegation, student M. L. testified regarding picking a student up and slamming the student to the floor. M. L. testified that, except for him, all the other students in the class had completed their work and were in the rear of the classroom with the teacher; that he had just completed his work and was walking to the rear of the class when Mr. Moore walked into the classroom; that Mr. Moore told him that he was out of his seat without permission; and that Mr. Moore picked him up and slammed him to the floor, placing his (Mr. Moore's) knee in M. L.'s back. Mr. Moore testified that M. L. was out of his seat without permission and that M. L. was running in the classroom and would not sit down even though Mr. Moore asked him to sit down and stop running. M. L. admitted that he had been disciplined before for running around in the classroom. Mr. Moore admits that he put M. L. to the floor, which de-escalated the situation, and that he then allowed M. L. to get up. Furthermore, Mr. Moore admits that he did not document the incident and did not notify the parents of M. L. that physical restraint had been used on M. L. No testimony was presented from Mr. Moore's supervising teacher, Jaime Calaf, regarding the incident with M. L. No other testimony was presented. As to the incident with M. L., the only witnesses testifying were M. L. and Mr. Moore. In considering M. L.'s credibility, the undersigned must include, as a factor, that the students at Renick have behavior problems but that also the students should expect to be treated in accordance with the School Board's established crisis management techniques. M. L.'s demeanor and candor, during his testimony, and his admission that he had been disciplined for the same action previously detracted from the credibility of his testimony. Specifically, the undersigned is not convinced that M. L. had completed his work, that he was not disruptive, that Mr. Moore slammed M. L. to the floor, and that Mr. Moore put his knee in M. L.'s back. Mr. Moore admits that he put, not slammed, M. L. to the floor. The undersigned does not find M. L.'s testimony convincing. The evidence presented fails to demonstrate that Mr. Moore's action was inappropriate under the circumstances. However, Mr. Moore failed to document the situation and failed to notify the parents of M. L. as required that physical restraint had been used with M. L. Regarding the general allegation that Moore often hit students with a broomstick on the legs and buttocks, wrestled students in the classroom, and often called them gay, M. L. testified as to Mr. Moore punching students in the arm, who were misbehaving, and O. B. testified as to Mr. Moore hitting students with a broom. M. L. testified that, at times, Mr. Moore punched him and other students in the arm when they were misbehaving. The undersigned's decision as to M. L.'s credibility remains the same. The evidence fails to demonstrate that Mr. Moore punched students who were misbehaving. O. B. testified that Mr. Moore attempted to hit him once with a broom when he was misbehaving and, at times, hit other students with a broom when they were misbehaving. In considering O. B.'s credibility, the undersigned must include, as a factor, that the students at Renick have behavior problems but that also the students should expect to be treated in accordance with the School Board's established crisis management techniques. O. B. testified that he did not consider J. B. to be a disruptive student; whereas, the evidence presented, regarding J. B., clearly indicates that J. B. is a disruptive student. O. B.'s demeanor and candor, during his testimony, together with his unsupported conclusion that J. B. was not a disruptive student, detracted from the credibility of his testimony. The undersigned does not find O. B.'s testimony convincing. Further, Mr. Calaf testified that, on occasions, he observed Mr. Moore grabbing students in the back and getting rough with them. Mr. Calaf did not testify that he reported his observations to the principal or other person who could exact discipline upon Mr. Moore. Moreover, Mr. Calaf did not testify that what he observed was inappropriate or contrary to the established crisis management training. Consequently, Mr. Calaf's observations cannot be used to support the alleged inappropriate conduct by Mr. Moore. Regarding the specific incident involving J. G. in the Amended Notice of Specific Charges, according to the principal of Renick, Eugenia Smith, she would not have recommended the dismissal of Mr. Moore if it had not been for the incident on December 19, 2002, involving J. G., a middle school student at the time. No dispute exists that the School Board uses progressive discipline. For Ms. Smith, the incident involving J. G. was the incident that triggered the dismissal of Mr. Moore. As a result, this incident is the defining incident for Ms. Smith's decision to recommend dismissal of Mr. Moore and, therefore, if this incident is not proven, the basis for her recommendation of Mr. Moore's dismissal no longer exists. As to the specific incident involving J. G., the witnesses to the incident are J. G., other Renick students in the class, and Mr. Moore. No dispute in the testimony exists that, on December 19, 2002, Mr. Moore and J. G. got into a shouting match and that Mr. Moore never touched J. G. At Renick, J. G. was disruptive in his classes and had had many discipline problems. One psychologist at Renick, Joseph Strasko, described J. G. as physically disruptive and aggressive. Another psychologist at Renick, Theodore Cox, Jr., had observed J. G. engaging in inappropriate behavior. Also, Mr. Strasko described J. G. as a student who would not tell the truth when it was detrimental to him (J. G.); whereas, Mr. Cox had not known J. G. to tell an untruth. As to whether J. G. would tell the truth, the undersigned finds Mr. Strasko to be more credible and, therefore, finds that J. G. will not tell the truth when it is detrimental to him (J. G.). As to what lead to the shouting match, only Mr. Moore was certain as to what happened. The undersigned finds Mr. Moore's testimony credible regarding this aspect of the incident. J. G. was bullying a new student in the class and had physically moved toward the new student. Mr. Moore interceded to stop the bullying by J. G. and to protect the new student, requesting J. G. to take his seat but J. G. refused. Mr. Moore kept himself between J. G. and the new student, thereby, preventing J. G. from advancing upon the new student. What Mr. Moore said during the shouting match is where the testimony differs. However, no dispute exists as to certain aspects of the incident: that J. G. became angry and disrespectful toward Mr. Moore; that J. G. stated to Mr. Moore that, if Mr. Moore put his hands on him, he (J. G.) would bring his father and brother to Renick and they would deal with Mr. Moore; and that J. G. used profanity with Mr. Moore. Mr. Moore denies that he used profanity or disparaging remarks during the incident with J. G. The crisis management expert, Mr. Strasko,2 testified that it is not appropriate for a teacher to shout profanities at a student who is shouting profanities at the teacher; and that a teacher is required to be professional even when students are being disruptive. X. W., a student who was at Renick in the class at the time of the incident on December 19, 2002, testified that Mr. Moore called J. G. a "fat bitch" and called him (X. W.) a "punk." X. W. is J. G.'s cousin. D. J., a student who was at Renick in the class at the time of the incident on December 19, 2002, testified that he did not hear about what J. G. and Mr. Moore were arguing. However, D. J. testified that, when J. G. told Mr. Moore that he (J. G.) was going to bring his (J. G.'s) brother, Mr. Moore told J. G. to bring his brother and that he (Mr. Moore) would "lay him on the ground." O. B. a student who was at Renick in the class at the time of the incident on December 19, 2002, testified that, when J. G. told Mr. Moore that he (J. G.) was going to bring his (J. G.'s) brother, Mr. Moore told J. G. to bring his brother to the store and that they would deal with it then. O. B. further testified that J. G. and Mr. Moore were calling each other gay and other derogatory names. Further, regarding the incident on December 19, 2002, Mr. Calaf did not witness the incident. Mr. Calaf returned to the class after the incident had occurred and observed J. G. crying and Mr. Moore and J. G. shouting at each other. Mr. Calaf did not testify as to what Mr. Moore and J. G. were shouting but did testify that he advised Mr. Moore that he (Mr. Moore) should not shout at students and should always remain professional, not getting on the level of the students. As to J. G.’s being disruptive in the class, Mr. Calaf testified that J. G. was generally disruptive and that usually Mr. Moore could calm J. G. down. The undersigned finds Mr. Calaf's testimony credible. In considering J. G.'s credibility, the aforementioned factors describing J. G. must be considered. In considering X. W.'s credibility, the undersigned must include, as a factor, that the students at Renick have behavior problems but also that teachers are required not to use profanity and to be professional. Further, the undersigned must consider the fact that X. W. is J. G.'s cousin, which was unbeknownst to Ms. Smith. In considering D. J.'s credibility, the undersigned must consider the factor that D. J. complained that Mr. Moore used physical restraint against him in an earlier incident in which the only witnesses were he and Mr. Moore. The incident and D. J.'s credibility are addressed earlier in these findings. In considering O. B.'s credibility, the undersigned must consider that O. B. complained that he observed Mr. Moore hitting students at Renick with a broom. The incident and O. B's credibility are addressed earlier in these findings. In considering Mr. Moore's credibility, the character testimony provided by Mr. Strasko and the character letters provided by Mr. Moore's colleagues must be considered. Mr. Strasko and Mr. Moore's colleagues address, among other things, what they consider the appropriate manner in which Mr. Moore handled students who were having behavior problems. Further, Mr. Moore's length of employment with the School Board, and his aforementioned past performance situations must be considered, including the one documented alleged inappropriate crisis management technique and language used by Mr. Moore in July 1998. Taking all of the aforementioned factors of credibility into consideration, the undersigned finds Mr. Moore's testimony more credible than the students, the character testimony and letters persuasive, and the lack of evidence, as to what was said, by a witness who was not involved in the incident, i.e., Mr. Calaf. Therefore, the undersigned finds that Mr. Moore did not use profanity during the incident of December 19, 2002. Mr. Moore did not report the incident involving J. G. Mr. Moore did not believe that the incident rose to the level that reporting was necessary. Moreover, no physical restraint was used. On May 1, 2003, a conference-for-the-record was held with Mr. Moore by the School Board's Office of Professional Standards (OPS) to review his employment history and future employment with the School Board. Among those in attendance with Mr. Moore were a UTD advocate, Ms. Smith, and the assistant superintendent for the Office of Exceptional Student Education and Student/Career Services. By a summary of the conference- for-the-record, dated June 6, 2003, the conference-for-the record was memoralized. By memorandum dated May 28, 2003, Ms. Smith and the assistant superintendent recommended the dismissal of Mr. Moore. By letter dated August 21, 2003, the School Board notified Mr. Moore that at its meeting on August 20, 2003, it took action to suspend him and initiate dismissal proceedings against him from all employment with it.
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 Algernon J. Moore, Jr. in violation of Counts I and IV in accordance with this Recommended Order. Dismissing Counts II and III. Upholding the suspension of Algernon J. Moore, Jr. Dismissing Algernon J. Moore, Jr. from all employment with the Miami-Dade County School Board. DONE AND ENTERED this 30th day of December 2004, 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 December, 2004.
