The Issue Whether just cause exists for Petitioner, DeSoto County School Board (School Board), to suspend Respondent without pay, and terminate her employment as an Exceptional Student Education (ESE) teacher.
Findings Of Fact Parties and Relevant Policies The School Board is charged with the duty to operate, control, and supervise public schools in DeSoto County. Art. IX, § 4(b), Fla. Const. (2018). This includes the power to discipline instructional staff, such as classroom teachers. §§ 1012.22(1)(f) and 1012.33, Fla. Stat. Respondent is an ESE classroom teacher at DeSoto County High School (High School). Although Respondent has been teaching for 23 years, she has only been an ESE classroom teacher for the School Board since 2016. Superintendent Cline is an elected official who has authority for making School Board personnel decisions. His duties include recommending to the School Board that a teacher be terminated. § 1012.27(5), Fla. Stat. David Bremer (Principal Bremer) was the principal at the High School at all times relevant to these proceedings, and Cynthia Langston served as the Assistant Principal. The parties’ employment relationship is governed by School Board policies, Florida laws, Department of Education regulations, and the Collective Bargaining Agreement (CBA) entered into by the School Board and the Desoto County Educators Association, a public union. The CBA relevant to this action was effective July 1, 2018, through June 30, 2021. The School Board employed Respondent on an annual contract basis. “Annual contract” means an employment contract for a period of no longer than one school year which the School Board may choose to award or not award without cause. § 1012.335(1)(a), Fla. Stat. The testimony at the hearing and language in the CBA establish that the annual contract of a teacher, who has received an indication he or she “Needs Improvement” or is placed on an improvement plan, is not eligible for automatic renewal. In these situations, the superintendent has discretion regarding whether to renew that teacher’s annual contract. See CBA, Art. 8, § 16. Article 22, section 8 of the CBA provides for progressive discipline for teachers in the following four steps: (1) verbal reprimand (with written notation placed in the site file); (2) written reprimand (filed in personnel and site files); (3) suspension with or without pay; and (4) dismissal. The CBA makes clear that progressive discipline must be followed, “except in cases that constitute a real immediate danger to the district or [involve a] flagrant violation.” February 11, 2019 (the February 11 Incident) This proceeding arises from an incident that occurred on February 11, 2019, after lunch in Respondent’s ESE classroom. The School Board alleges Respondent intentionally threw a foam or Nerf-type football at a student in a wheelchair when he failed to follow her instructions, and the football hit the student. Respondent asserts she playfully threw stress ball-type footballs up in the air and one accidently bounced and hit A.R.’s chair. Respondent’s classroom at the High School consisted of ten to 12 ESE students during the 2018-2019 school year. These students had special needs and some were nonverbal. On the day of the incident, there were nine or ten students in Respondent’s classroom, including A.R., a high school senior with cerebral palsy. Respondent kept small foam or Nerf-type footballs in her desk drawer. The testimony at the hearing established Respondent had used them in the classroom to get the students’ attention in a playful fashion. In addition to Respondent, four paraprofessionals assisted the students in the classroom. Of the four, only three were in the classroom during the February 11 incident: Ms. Walker, Mr. Blevins, and Ms. Murray. Respondent was responsible for A.R. while in her classroom. A.R. uses a wheelchair or a walker to get around, but has a special chair-desk in Respondent’s classroom. A.R. had difficulty in the classroom setting. Specifically, it was noted at the hearing that he has trouble processing what is happening around him, and that he needs help simplifying tasks that require more than one step. Although A.R. is verbal, he is slow to respond. A.R. was described as a “repeater” because he repeats things that others say, smiles if others are smiling, or laughs if others are laughing. In conversation, A.R. would typically smile and nod, or say “yes.” Ms. Walker’s and Mr. Blevins’s recollections of the February 11 incident were essentially the same. They testified that on the afternoon of February 11, 2019, the students returned to Respondent’s classroom from art class. They were excited and did not settle down for their lesson. As a result, Respondent became frustrated and yelled at the students to get their pencils so they could start their work. Respondent asked A.R., who was in his special chair-desk, to obtain a pencil. A.R. did not respond immediately and Respondent told him to get his pencil or she would throw a football. Ms. Walker’s and Mr. Blevins’s testimony established that, at this point, Respondent threw either one or two blue, soft, Nerf-type footballs approximately six inches long at A.R., who was looking in another direction. One of these blue footballs hit A.R. either in the side of his torso or back. A.R. began flailing his arms while he was in his chair-desk, and the entire room became silent. Ms. Murray was not facing A.R. during the incident, but she heard Respondent yell at A.R. to pay attention. She did not see Respondent throw the balls and was unsure if any of the balls made contact with A.R. After the incident, however, she saw two balls on the floor, picked them up, and returned them to Respondent. Ms. Murray did not recall the color of the footballs, and could only describe them as “squishy.” Respondent testified that A.R. was not paying attention, and she admits she told him she was going to toss the footballs if he did not get his pencil. She denies throwing a blue football at A.R., but instead claims she threw two smaller foam brown footballs. She denied any of the balls hit him, but rather, explained one of the brown footballs bounced off the floor and hit A.R.’s chair-desk; the other fell on her desk. The undersigned finds the testimony of Respondent less credible than the paraprofessionals’ testimony. First, all of the evidence established Respondent clearly threw footballs after A.R. did not respond to her instruction, and Respondent knew (or should have known) that A.R. was incapable of catching the football or responding positively. Second, Respondent’s version of what happened to the balls after she threw them is inconsistent with the testimony of Ms. Walker and Mr. Blevins that one ball hit A.R. Respondent’s testimony that one ball fell on her desk is also inconsistent with Ms. Murray’s testimony that she picked up two balls off the floor. Finally, Respondent’s version of events is not believable in part, because neither the brown nor the blue football entered into evidence had sufficient elasticity (or bounciness) to have acted in the manner described by Respondent. Based on the credible evidence and testimony, the undersigned finds Respondent intentionally threw the blue larger footballs at A.R. knowing he would not be able to catch them, one ball hit A.R. in the side or back, and A.R. became startled from being hit. There was no evidence proving A.R. was physically, emotionally, or mentally harmed. Report and Investigation of the February 11 Incident Both Ms. Walker and Mr. Blevins were taken aback by Respondent’s behavior. Ms. Walker was concerned that A.R. did not realize what was happening, and that the rest of the students were in shock. She did not think a teacher should throw anything at any student. Mr. Blevins similarly stated he was stunned and did not believe Respondent’s conduct was appropriate, especially because A.R. was in a wheelchair. At the hearing, Respondent also admitted it would be inappropriate to throw anything at a student even if it was just to get his or her attention. Both Ms. Walker and Mr. Blevins attempted to report the incident immediately to the High School administration. Ms. Walker left the classroom to report the incident to Principal Bremer, who was unavailable. Ms. Walker then reported to Assistant Principal Langston what she had seen happen to A.R. in Respondent’s classroom. During this conversation, Ms. Walker was visibly upset. After listening to Ms. Walker, Assistant Principal Langston suggested she contact the Department of Children and Families (DCF). Ms. Walker used the conference room phone and immediately contacted the abuse hotline at DCF. As a result, DCF opened an abuse investigation into the incident. Meanwhile, Mr. Blevins had also left Respondent’s classroom to report the incident to Assistant Principal Langston. When he arrived, he saw that Ms. Walker was already there and assumed she was reporting what had happened. Therefore, he did not immediately report anything. Later that day, Assistant Principal Langston visited Respondent’s classroom, but did not find anything unusual. She did not speak to Respondent about the incident reported by Ms. Walker. The next day, February 12, 2019, Assistant Principal Langston obtained statements from the paraprofessionals, including Ms. Walker and Mr. Blevins in Respondent’s classroom regarding the February 11 incident. These statements were forwarded to Superintendent Cline, who had been advised of the incident and that DCF was conducting an investigation. It is Superintendent Cline’s practice to advise administrators to place a teacher on suspension with pay during an investigation. If the teacher is cleared, the administrator should move forward with reinstatement. In this case, Principal Bremer met with Respondent on February 12, 2019, and informed her she would be placed on suspension with pay while DCF conducted its investigation into the incident. DCF closed its investigation on February 19, 2019. No one who conducted the DCF investigation testified at the hearing, and the final DCF report was not offered into evidence. Rather, the School Board offered a DCF document titled “Investigative Summary (Adult Institutional Investigation without Reporter Information).” This document falls within the business records exception to the hearsay rule in section 90.803(6), Florida Statutes, and was admitted into evidence. The undersigned finds, however, the Investigative Summary unpersuasive and unreliable to support any findings. The document itself is a synopsis of another report. Moreover, the document is filled with abbreviations and specialized references, but no one with personal knowledge of the investigation explained the meaning of the document at the final hearing. Finally, the summary indicates DCF closed the investigation because no physical or mental injury could be substantiated. On February 21, 2019, Principal Bremer notified Superintendent Cline that DCF had cleared Respondent, but did not provide him with a copy of the DCF report or summary. Principal Bremer did not have to consult with Superintendent Cline regarding what action to take regarding Respondent. Based on the DCF finding that the allegation of abuse or maltreatment was “Not Substantiated,” Principal Bremer reinstated Respondent to her position as an ESE teacher, but still issued her a written reprimand. The reprimand titled “Improper Conduct Maltreatment to a Student” stated in relevant part: I am presenting you with this written reprimand as discipline action for your improper conduct of throwing foam balls at a student. On February 11, 2019 it was reported you threw a football at [A.R.], a vulnerable adult suffering from physical limitations. As a result of this action, Florida Department of Children and Families (DCF) were called to investigate and you were suspended until the investigation was complete. Although maltreatment of [sic] Physical or Mental Injury was not substantiated, DCF reported three adults in the room witnessed you throwing at least two foam balls at [A.R.] because he did not get a pencil on time. Apparently [A.R.] did not follow through with the direction provided by you and you became frustrated for that reason. I am by this written reprimand, giving you an opportunity to correct your improper conduct and observe Building rules in the future. I expect you will refrain hereafter from maltreatment to a student and fully meet the duties and responsibilities expected of you in your job. Should you fail to do so, you will subject yourself to further disciplinary action, including a recommendation for immediate termination and referral of the Professional Practices Commission. On February 25, 2019, Respondent returned to her same position as an ESE teacher, in her same classroom, with the same students, including A.R. Superintendent’s Investigation and Recommendation to Terminate Meanwhile, Superintendent Cline requested a copy of the report of the investigation from DCF and contacted the DCF investigator. Based on his review of what was provided to him and his conversation with DCF, he concluded A.R. may still be at risk. Superintendent Cline found Respondent’s actions worthy of termination because “it is unacceptable to throw a football at a student who has cerebral palsy, and thus, such conduct violates” state rules and School Board policy. School Board PRO at 15, ¶ 72. There was no credible evidence at the hearing that A.R. or any other student was at risk from Respondent. The School Board failed to establish at the hearing what additional information, if any, Superintendent Cline received that was different from the information already available to him, or that was different from the information provided to Principal Bremer. There was no justification or plausible explanation as to why Superintendent Cline felt the need to override Principal Bremer’s decision to issue a written reprimand for the violations. On March 6, 2019, Superintendent Cline issued a letter suspending Respondent without pay effective March 8, 2019, and indicating his intent to recommend to the School Board that it terminate Respondent’s employment at its next regular board meeting on March 26, 2019. Attached to the letter were copies of the Investigative Summary, Florida Administrative Code Rule 6A- 10.081, and School Board Policy 3210. This letter was delivered by a School Board’s human resources employee to Respondent on March 8, 2019. Respondent did not return to the classroom for the remainder of the school year. Respondent’s Disciplinary History Prior to the February 11 incident, Respondent had received an oral reprimand for attendance issues on December 21, 2018. On February 6, 2019, Assistant Principal Langston met with Respondent to address deficiencies in Respondent’s attendance, lesson plans, timeliness of entering grades, and concerns with individual education plans for her ESE students. At that meeting, Assistant Principal Langston explained Respondent would be put on an improvement plan and that if Respondent did not comply with the directives discussed at the meeting, she would be subject to further discipline, including termination. Although the plan was memorialized, Respondent was not given the written plan until after she returned from the suspension. Ultimate Findings of Fact Respondent intentionally threw two footballs in an overhand manner at A.R., a student who could not comprehend the situation and could not catch the balls. She did so either in an attempt to garner the student’s attention or out of frustration because he was not following directions. Respondent did not violate rule 6A-10.081(2)(a)1., because there was no evidence the incident exposed A.R. to harm, or that A.R.’s physical or mental health or safety was in danger. Similarly, Respondent did not violate School Board Policy 3210(A)(1). Respondent violated rule 6A-10.081(2)(a)5., which prohibits a teacher from “intentionally expos[ing] a student to unnecessary embarrassment or disparagement.” The evidence established Respondent’s action in throwing the ball was intentional and was done to embarrass or belittle A.R. for not following her directions. For the same reason, Respondent’s conduct violated School Board Policy 3210(A)(5). Respondent violated rule 6A-10.081(2)(a)7., which states that a teacher “[s]hall not harass or discriminate . . . any student on the basis of . . . handicapping condition . . . and shall make reasonable effort to assure that each student is protected from harassment.” Again, the credible evidence established the act of a teacher throwing any item at any student, especially one who requires a wheelchair, is inappropriate and would be considered harassment on the basis of a student’s handicap. Similarly, Respondent violated rule 6A-10.081(2)(c)4., which requires that a teacher “not engage in harassment or discriminatory conduct which unreasonably interferes . . . with the orderly processes of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment; and, further, shall make reasonable effort to assure that each individual is protected from such harassment or discrimination.” For the same reasons listed above, Respondent’s conduct also amounts to a violation of School Board Policy 3210(A)(7). There was no evidence this conduct constituted a real immediate danger to the district, nor does it rise to the level of a flagrant violation. Therefore, the School Board must apply the steps of progressive discipline set forth in article 22, section 8 of the CBA. Pursuant to the terms of the CBA, Respondent should have received a written reprimand for the February 11 incident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the DeSoto County School Board: enter a final order finding Respondent violated Florida Administrative Code Rule 6A-10.081(2)(a)5., and (2)(c)4.; and corresponding School Board Policy 3210(A)(5) and (7); rescind the notice of termination dated March 6, 2019, and, instead, reinstate Principal Bremer’s written reprimand dated February 25, 2019; and to the extent there is a statute, rule, employment contract, or Collective Bargaining Agreement provision that authorizes back pay as a remedy for Respondent’s wrongful suspension without pay, Respondent should be awarded full back pay and benefits from March 8, 2019, to the end of the term of her annual contract for the 2018-2019 school year. See Sch. Bd. of Seminole Cnty. v. Morgan, 582 So. 2d 787, 788 (Fla. 5th DCA 1991); Brooks v. Sch. Bd. of Brevard Cnty., 419 So. 2d 659, 661 (Fla. 5th DCA 1982). DONE AND ENTERED this 13th day of August, 2019, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 13th day of August, 2019. COPIES FURNISHED: Mark E. Levitt, Esquire Allen, Norton & Blue, P.A. Suite 100 1477 West Fairbanks Avenue Winter Park, Florida 32789 (eServed) Mark Herdman, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761-1526 (eServed) Adrian H. Cline, Superintendent The School District of DeSoto County 530 LaSolona Avenue Post Office Drawer 2000 Arcadia, Florida 34265-2000 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
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 just cause exists for Petitioner to suspend Respondent's employment as a teacher without pay for one day.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools in Broward County. The School Board hired Respondent on September 1, 1981. At all times material hereto, Respondent has been employed by the School Board as a middle school social science teacher and department head at Whiddon-Rogers Education Center ("Whiddon-Rogers"). At all times material to this case, Respondent's employment with the School Board has been governed by Florida law and the School Board's policies. The conduct giving rise to the School Board's proposed one-day suspension of Respondent occurred on October 1, 2019, during the 2019-2020 school year. On the morning of October 1, 2019, M.G., an eighth grade male student at Whiddon-Rogers, received a telephone call regarding some family members who had died that morning. Due to the deaths in his family, M.G. was upset and in a "bad mood" throughout the morning and later that day when he arrived in Respondent's fourth period social studies class. During Respondent's fourth period class, M.G. did not want to be disturbed. He had a "hoodie over his head," his head down on his desk, and he was not doing any work. M.G. was often picked on in class by other students. On this particular occasion in Respondent's fourth period class, M.G. was being picked on by other students as he laid his head down on his desk. At some point, M.G. picked his head up from his desk and made a verbal threat to other students that he was going to shoot up the school. Respondent did not hear M.G. make the threat. One of the other students that heard M.G.'s threat went to Respondent during class and told him M.G. had threatened to shoot up the school. Respondent did not report M.G.'s threat to school administration. Respondent did not consider M.G.'s comment to be a dangerous threat. Respondent did not want to embarrass M.G. and told him during his fourth period class on October 1, 2019, that he could not say things like that. M.G., who was angry, did not respond to Respondent and walked out of the classroom. Respondent instructed M.G. to return to the classroom, but M.G. ignored him. On October 2, 2019, M.G. did not attend school. On the morning of October 3, 2019, Assistant Principal Sabrina Smith received a text message from another teacher at Whiddon-Rodgers, N'Kenge Rawls, notifying her of M.G.'s threat on October 1, 2019, to shoot up the school. Ms. Smith notified the other assistant principals of the threat and assembled the mandatory members of the Behavioral Threat Assessment ("BTA") team to collaboratively analyze available data, determine the level of risk, and develop appropriate interventions. As part of the threat assessment, Ms. Smith spoke to M.G. on October 3, 2019, who admitted he had threatened to shoot up the school. Ms. Smith also spoke to Respondent, who admitted he did not report M.G.'s threat to administration on October 1, 2019. Respondent admitted to Ms. Smith that he should have reported M.G.'s threat and that he made a mistake in not reporting the threat. Based on the behavioral threat assessment, the BTA team determined M.G.'s risk level to be "Medium/Serious Substantive." A "Medium/Serious Substantive" risk level means that the student "does not appear to pose a threat of violence at this time but exhibits behaviors that indicate a continuing intent to harm and/or potential for future violence." By all accounts, Respondent is a good teacher and well respected by his colleagues as evidenced by his team leader role at Whiddon-Rodgers. However, on this particular occasion, Respondent used poor judgment and erred in not reporting M.G.'s threat to shoot up the school on October 1, 2019. The persuasive and credible evidence adduced at hearing establishes that Respondent failed to report M.G.'s threat to shoot up the school, which constitutes misconduct in office in violation of Florida Administrative Code Rule 6A-5.056. By failing to report M.G.'s threat to shoot up the school, Respondent violated rule 6A-10.081(2)(a)1., by failing to make reasonable effort to protect the students from conditions harmful to learning and/or to the students' mental and/or physical health and/or safety. Respondent's conduct also constitutes "[i]ncompetency" and "[i]nefficiency," in violation of rule 6A-5.056(3) and (3)(a)1., by failing to discharge the duty to report such a threat as prescribed by law and "[i]nefficiency" in violation of rule 6A- 5.056(3)(a)3., by failing to communicate appropriately with and relate to administrators. Respondent's conduct also violates School Board Policy 2130, which requires School Board employees "to report to school administration any expressed threat(s) or behavior(s) that may represent a threat to the community, school, or staff," and School Board Policy 4008, which requires Respondent to comply with the "Principles of Professional Conduct of the Education Profession in Florida," and "all rules and regulations that may be prescribed by the State Board and by the School Board." Respondent has only received prior discipline on one occasion. On September 19, 2007, Respondent received a written reprimand for inappropriate discipline of a student.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order upholding the one-day suspension of Respondent's employment without pay. DONE AND ENTERED this 10th day of November, 2020, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 2020. COPIES FURNISHED: Andrew Carrabis, Esquire Broward County School Board 600 Southeast 3rd Avenue, 11th Floor Fort Lauderdale, Florida 33301 (eServed) Melissa C. Mihok, Esquire Melissa C. Mihok, P.A. 201 East Pine Street, Suite 445 Orlando, Florida 32801 (eServed) Robert W. Runcie, Superintendent Broward County Public Schools 600 Southeast 3rd Avenue Fort Lauderdale, Florida 33301 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Notice of Specific Charges filed against him, and, if so, what action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent Kenneth Ingber has been employed by Petitioner and assigned under a continuing contract to West Little River Elementary School. During Respondent's 23 years of employment by Petitioner, he resigned/retired twice. He was rehired by Petitioner after each resignation, the last rehiring taking place for the 1985/86 school year. His then-principal, Glenda Harris, hired him with the knowledge that he was an admitted recovering alcoholic. He told her that he was under control. She told him that she would give him a chance but that he would have to meet the expectations that all teachers have to meet. From the 1985/86 school year through the 1990/91 school year, Harris rated Respondent acceptable on his annual evaluations; however, during the 1989/90 school year, Respondent had an attendance problem when he began drinking again. Harris tried to get Respondent to obtain help, but he felt he could do it on his own. He deteriorated during that year but improved during the 1990/91 school year. During the time that Harris supervised Respondent, she had a problem with his not having lesson plans. He felt that he did not need them. For the 1991/92 school year, Respondent came under the supervision of Principal Lillian Coplin. Coplin was never advised of Respondent's alcoholism. On January 29, 1992, Respondent left school early without permission. He also failed to attend a Global Awareness Workshop scheduled for that day. Coplin discussed these failures with him on January 30, 1992. On January 31, 1992, Respondent arrived at work late and left early. The official working hours are from 8:15 a.m. to 3:20 p.m., but Respondent only worked from 9:47 a.m. to 2:50 p.m. On February 7, 1992, Coplin directed Respondent to observe the working hours set by the collective bargaining agreement between the Dade County Public Schools and the United Teachers of Dade (Labor Contract). On February 27 and March 2, 1992, Respondent failed to have lesson plans. On February 27, 1992, Assistant Principal Edith Norniella observed Respondent smoking outside of his classroom, but within view of his students. Prior to that date, Norniella had observed him smoking on school grounds on August 30, 1991, November 14, 1991 and February 18, 1992. On each of these occasions, she told him not to smoke on school grounds. Coplin had also told him several times not to smoke on school grounds. On March 3, 1992, Coplin directed Respondent to adhere to Petitioner's non-smoking rule. Norniella saw him smoking on school grounds at least two more times after that. On March 3, 1992, Coplin also directed Respondent to develop lesson plans according to the Labor Contract. On March 27, 1992, all teachers were given a site directive to turn in parent logs, gradebooks, and daily schedules before leaving for spring-break on April 3, 1992. On April 3, 1992, Respondent reported to work at 9:25 a.m. in spite of the directive given on February 7, 1992. On that same date, Respondent also failed to comply with the directive to turn in parent logs, gradebooks, and daily schedules. Moreover, by April 22, 1992, he still had not complied with that directive. On April 22, 1992, a conference-for-the-record was held with Respondent to discuss his attendance problems and other failures to comply with School Board rules, Labor Contract provisions, and administrative directives. During the conference, he stated that he lost the gradebook but that the principal would not like it anyway. He also admitted that he did not maintain a parent log. Respondent was warned that any further violation of directives would be considered gross insubordination. He was also issued a written reprimand and directed to comply with School Board rules, Labor Contract provisions, and site directives. He was advised of the School Board's Employee Assistance Program (EAP), a program which offers assistance to employees in overcoming personal problems that may be affecting their work. Respondent declined the assistance and treated the matter as a joke by posting the EAP referral on his classroom door. On May 27, 1992, Respondent was formally observed in the classroom by Norniella, using the Teacher Assessment and Development System (TADS). Respondent was rated unacceptable in preparation and planning and in assessment techniques. He did not have lesson plans, student work folders with tests, or a gradebook. It was impossible to assess his students' progress. Respondent was given a prescription to help him correct his deficiencies. Prescriptions are activities which the employee is directed to complete. He was directed to write detailed lesson plans and to turn them in to Norniella weekly. He was to prepare two teacher-made tests and submit those to Norniella for review. He was also to complete some activities concerning assessment techniques from the TADS prescription manual. His prescription deadline was June 16, 1992. On June 2, 1992, Respondent was wearing a "pocket-knife" on his belt. Both Coplin and Norniella considered the pocket-knife to be a weapon in violation of the School Board rule because, although Respondent did not physically threaten anyone with the knife, the wearing of such a knife was intimidating to students and to Coplin. The matter had come to Coplin's attention through a complaint from the parent of a student. In addition, both administrators believed that wearing a knife set a bad example for the students and did not reflect credit upon Respondent and the school system. On June 3, 1992, a conference-for-the-record was held to address the knife incident. Respondent was issued a written reprimand and directed to cease and desist from bringing the pocket-knife to school. He was further advised that any re-occurrence of that infraction would result in additional disciplinary action. On June 5, 1992, a conference-for-the-record was held to address Respondent's performance and his future employment status. During the conference, he admitted to not having had a written lesson plan during the May 27 observation. He was told of the Labor Contract provision which requires weekly lesson plans reflecting objectives, activities, homework, and a way of monitoring students' progress. He was also warned that if he did not complete the prescription from that observation, he would be placed on prescription for professional responsibilities and given an unacceptable annual evaluation. On June 19, 1992, a conference-for-the-record was held with Respondent. He had failed to correct his deficiencies and had failed to complete his prescription. Moreover, he still had not turned in his gradebook, parent log, and daily schedule, as directed on March 3, 1992. He was given an unacceptable annual evaluation because of his deficiencies in professional responsibility. Respondent verbally disagreed with that decision stating that the unacceptable evaluation was for simple paper-pushing requirements. The prescription for professional responsibilities required Respondent to review from the faculty handbook School Board policy on grading criteria, to submit his gradebook on a weekly basis to Coplin, to maintain a gradebook and a log of parent conferences, to maintain daily attendance, to submit student assessment records to Coplin for review prior to submission of the nine-week grade report, and to complete the prescription from the May 27 observation by September 15, 1992. Respondent's annual evaluation for the 1991/92 school year was overall unacceptable and was unacceptable in the category of professional responsibility. On September 20, 1992, a conference-for-the-record was held with Respondent because he was still wearing a "pocket-knife" in spite of the prior directive. He was directed not to wear the knife or the knife case. Respondent stated that he would not do as directed. On October 9, 1992, Respondent was formally observed in the classroom by Coplin and was rated unacceptable in preparation and planning and in assessment techniques. He did not have a lesson plan, student work folders, tests, or a gradebook. It would not be possible to evaluate the students' strengths and weaknesses. Moreover, if an administrator were called upon to explain to a parent why a student got a particular grade, the administrator would not have been able to do so. Respondent was prescribed activities to help him correct his deficiencies. He was directed to write detailed lesson plans and to turn them in to Norniella weekly. He was directed to complete specific activities in the TADS prescription manual dealing with lesson planning and assessment techniques and to prepare two teacher-made tests and to submit all to Coplin for review. The prescription was to be completed by October 30, 1992. By November 13, 1992, Respondent was exhibiting a pattern of excessive and unauthorized absences. The absences were unauthorized because he failed to call the school prior to his absences as required by directives contained in the faculty handbook. He was advised that his absences were adversely impacting the continuity of instruction for his students and the work environment. He was given directives to report his absences directly to the principal, document absences upon return to the worksite, and provide lesson plans and materials for use by the substitute teacher when he was absent. On November 13, 1992, it was noted that Respondent had not met the prescription deadline of October 30, 1992. Coplin gave Respondent a new prescription deadline of November 30, 1992. In addition, she made a supervisory referral to the EAP because of Respondent's excessive absences, unauthorized disappearance from work, poor judgment, and failures to carry out assignments. By the end of November, 1992, Respondent had accumulated 21 absences. While he was absent, there were no gradebook, lesson plans or student folders for the substitute teacher. The substitute teacher was told to create a gradebook, lesson plans, and student work folders. All was in order when Respondent returned to work. On December 11, 1992, Respondent was formally observed in the classroom by Norniella and was rated unsatisfactory in preparation and planning, in techniques of instruction, and in assessment techniques. Because his techniques of instruction were also rated unacceptable, Respondent recognized for the first time that his teaching performance was being criticized. He had dismissed the prior criticisms as simply problems with creating a "paper-work trail". Respondent was rated unacceptable in preparation and planning because he did not have a lesson plan. Norniella gave him a chance to turn in the lesson plans the following Monday, but he failed to do so. Respondent was unacceptable in techniques of instruction because he used the same materials and methods for all students regardless of their individual needs. Respondent failed to establish background knowledge before beginning the lesson. The sequence of the lesson was confusing to Norniella. Respondent covered three different subjects (vocabulary, science, and math), all within a period set aside for language arts. Respondent was given a prescription to help correct his deficiencies. He was directed to write lesson plans and to turn them in to Norniella on Fridays. He was to observe a reading/language arts lesson by another sixth- grade teacher. He was directed to maintain at least two grades per week in each subject for each student. He was also directed to complete specific activities in the TADS prescription manual relating to preparation and planning, techniques of instruction, and assessment techniques. He was directed to complete the prescription by January 15, 1993. He failed to complete any of the prescription activities. On January 4, 1993, a conference-for-the-record was held with Respondent to address his performance and future employment. His absences and reporting procedures were also discussed as was his failure to comply with his prescription and prior directives. During the conference, Respondent was rude, agitated, and disrespectful. He yelled at the principal. His behavior did not reflect credit upon himself and the school system. He treated the conference as a joke. As of January 20, 1993, Respondent still had no gradebook. On January 25, 1993, he was notified that upon his return to the school site, there would be a conference-for-the-record to deal with his noncompliance with the directives to maintain a gradebook and to complete his prescription activities. A conference-for-the-record was held with Respondent on March 3, 1993. It was noted that because of his absences, he had failed to meet the prescription deadline on January 15, 1993. Coplin gave him a new deadline of March 11, 1993. Respondent failed to meet the March 11, 1993, prescription deadline. Moreover, he still had not completed his prior prescription for professional responsibility. Because of these failures, Coplin extended the 1992 professional responsibility prescription through June 1993. On March 26, 1993, Respondent was formally observed in the classroom by Coplin and was rated unsatisfactory in preparation and planning and in assessment techniques. While Respondent had some lesson plans, he did not have one for each subject taught during the day. The student folders contained no tests. Respondent was prescribed activities to help him correct his deficiencies. He was directed to develop weekly lesson plans and to submit them on Wednesdays for the principal to review. He was also to complete an assessment techniques activity from the TADS prescription manual and was to submit the activity to Coplin for review. His prescription was to be completed by April 23, 1993. On April 1, 1993, Respondent was placed on prescription for professional responsibilities for failure to comply with School Board rules, Labor Contract provisions, and school site policies and directives concerning lesson plans, student assessment, record keeping, and maintaining a gradebook. He was directed to develop weekly lesson plans for each subject taught and to submit those to the principal for review. He was directed to read Article X of the Labor Contract and to submit a summary to the principal for review. He was directed to review the section of the faculty handbook concerning maintaining a gradebook. He was directed to maintain an updated gradebook with at least two grades per week per subject and to label the grades. He was directed to maintain a parental conference log in the gradebook. He was directed to submit his gradebook to the principal for weekly review. On May 12, 1993, Coplin advised Petitioner's Office of Professional Standards (OPS) that Respondent had failed to comply with the directive of November 13, 1992, concerning procedures for reporting absences. He had been absent on April 13, 16, 23, 27, and May 5, 6, 7, 10, and 11, 1993, without calling the principal in advance. Respondent claims that he called the school secretary at her home before 7:00 a.m. every time he was absent, except for one time. Although the secretary told him he would have to speak directly to the principal, he chose not to call the school when Coplin was there. Calling the secretary does not absolve him from his responsibility to comply with the principal's directive to speak to her personally. On May 19, 1993, Respondent was sent a letter directing him to schedule a conference at OPS. Respondent did not do so. On that same day, Coplin was advised by EAP that EAP was closing Respondent's case due to his noncompliance with the program. Respondent was absent without authorized leave from April 23 - June 17, 1993. Moreover, he had 106 absences for the school year. Nine of these were paid sick leave, and 97 were leave without pay. The school year has 180 student contact days. Because of Respondent's absences and failure to follow leave procedures, Coplin was not able to secure a permanent substitute teacher. Respondent's students were subjected to frequent changes in substitute teachers and a lack of continuity in their education. Respondent's annual evaluation for the 1992/93 school year was overall unacceptable and unacceptable in the categories of preparation and planning, assessment techniques, and professional responsibility. Because of Respondent's absences, the usual conference-for-the-record could not be conducted, and Respondent's annual evaluation was sent to him by mail. Respondent failed to complete all prescriptions given him by Coplin and by Norniella. By letter dated June 15, 1992, OPS notified Respondent that he was willfully absent from duty without leave. He was given an opportunity to provide a written response and was advised that failure to do so would result in the termination of his employment. On July 6, 1993, a conference-for-the-record was conducted by Dr. Joyce Annunziata at OPS. The conference was held to discuss the pending dismissal action to be taken by Petitioner at its meeting of July 7, 1993. During the meeting, Respondent was extremely disoriented, turned his back on Annunziata, did not take the meeting seriously, made irrelevant comments, carried a stuffed purple animal which he talked to and through, and had watery, bloodshot eyes. He also wore his "pocket-knife" to the conference. Petitioner suspended Respondent and took action to initiate dismissal proceedings against him on July 7, 1993.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered sustaining Respondent's suspension without pay and dismissing Respondent from his employment with the School Board of Dade County, Florida. DONE and ENTERED this 12th day of January, 1994, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1994. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 93-3963 Petitioner's proposed findings of fact numbered 1, 3-27, and 29-56 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 2 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. Petitioner's proposed finding of fact numbered 28 has been rejected as being irrelevant to the issues under consideration in this cause. Respondent's proposed findings of fact numbered 1-4 and 7-9 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 5 and 14-16 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Respondent's proposed finding of fact numbered 6 has been rejected as being irrelevant to the issues under consideration in this cause. Respondent's proposed findings of fact numbered 10-13 have been rejected as not being supported by the weight of the evidence in this cause. COPIES FURNISHED: William DuFresne, Esquire Du Fresne & Bradley 2929 S.W. 3rd Avenue, Suite 1 Miami, Florida 33129 Madelyn P. Schere, Esquire Dade County School Board 1450 N.E. 2nd Avenue Miami, Florida 33132 Mr. Octavio J. Visiedo, Superintendent Dade County School Board 1450 N.E. 2nd Avenue Miami, Florida 33132 The Honorable Doug Jamerson Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether the Respondent, Angel Guzman, committed the violations alleged in a Notice of Specific Charges filed by the Petitioner, the School Board of Miami-Dade County, Florida, on November 14, 2001, and, if so, the penalty that should be imposed.
Findings Of Fact Petitioner, the Miami-Dade County School Board (hereinafter referred to as the "School Board"), is a duly- constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Article IX, Florida Constitution; and Section 230.03, Florida Statutes. At all times material to this proceeding, Angel Guzman was employed as a teacher by the School Board and assigned to Miami Edison Middle School (hereinafter referred to as "Edison"). Mr. Guzman is and has been employed by the School Board pursuant to an annual service contract. Prior to his employment by the School Board, Mr. Guzman was employed by New York City as a teacher assistant for three years and as a teacher for four years. He has been employed as a graphic communications teacher by the School Board since 1998, approximately two and a half years. Prior to the incidents that are the subject of this proceeding, Mr. Guzman had never been the subject of a School Board personnel investigation. The February 16, 2001, Incident On February 16, 2001, Mr. Guzman was handing out reading logs in a FCAT preparation class at Edison. The students in the class were seventh graders. Sherwin JeanPierre, a student in the class, and another student asked their fellow student, Maurice Barnhill to get their reading logs from Mr. Guzman. Maurice picked up the logs, but was confronted by Mr. Guzman who, when he learned that Maurice was picking up logs for others, snatched the logs out of his hands and told him to return to his seat. An argument between Mr. Guzman and Maurice ensued. The teacher and student yelled at each other, Mr. Guzman forcefully pushed Maurice on the shoulder, and Mr. Guzman said "coño" to Maurice, which means "damn" in Spanish. Mr. Guzman eventually became so angry that he grabbed a wooden stool located between him and Maurice, swung it toward Maurice, and hit Maurice on the leg with the stool. While the stool hurt Maurice, he suffered no significant injury. The Second February 2001 Incident Following the February 16, 2001, incident, Mr. Guzman and another student were involved in a verbal confrontation. The situation was defused by Theron Clark, an Assistant Principal at Edison, and a security monitor. Following the confrontation, Mr. Clark and Dr. Peggy Henderson Jones, another Assistant Principal, met with Mr. Guzman. At this meeting, Mr. Guzman indicated that he was very stressed and did not want to return to his class. Mr. Guzman was allowed to go home the day of the incident and was subsequently referred to the Employee Assistance Program. Disciplinary Action Against Mr. Guzman for the February 16, 2001, Incident A conference-for-the-record (hereinafter referred to as the "conference") was held with Mr. Guzman on March 6, 2001, by Ronald D. Major, the Principal at Edison. The conference was attended by Mr. Major, Mr. Theron, Eduardo Sacarello, a United Teachers of Dade representative, and Mr. Guzman. The purpose of the conference was to discuss Mr. Guzman's non-compliance, during the February 16, 2001, incident with Maurice Barnhill, with school rules, School Board Rules 6Gx13-5D-1.07, dealing with corporal punishment, and 6Gx13-4A-1.21, dealing with employee conduct, and the Collective Bargaining Agreement between the School Board and the United Teachers of Dade. During the conference, Mr. Guzman was advised that a letter of reprimand would be issued, and he was directed to immediately implement procedures for the removal of disruptive students consistent with the faculty handbook. Mr. Guzman was also warned that any recurrence of the type of violation committed by him during the February 16, 2001, incident would result in further disciplinary action. A written reprimand to Mr. Guzman was issued on March 7, 2001, by Mr. Major. In the reprimand, Mr. Major again warned Mr. Guzman that any recurrence of the infraction would result in additional disciplinary action. The April 25, 2001, Incident On April 25, 2001, during a class under Mr. Guzman's supervision, Mr. Guzman caused a document to be printed from a class computer. A student took the paper and gave it to another student in the class, Ian Lightbourne, who asked for the paper. Ian placed the paper, even though it did not belong to him, in his book bag. When Mr. Guzman came to retrieve the paper he had printed, found it was gone, and asked if anyone knew what had happened to it. Although no one answered, Mr. Guzman suspected Ian and asked him to open his book bag. Ian complied and Mr. Guzman found the paper. Mr. Guzman became irate and began yelling at Ian to "not touch my things." Mr. Guzman then grabbed Ian by the arm and started to pull him toward the front of the classroom. Ian, who was sitting on a stool, lost his balance and fell to his knees. Mr. Guzman continued to pull Ian, who began to cry and yell, "Let me go," the length of the classroom on his knees. Mr. Guzman pulled Ian to a corner of the classroom where he banged Ian's arm against a metal darkroom door. Ian had previously broken the arm that Mr. Guzman grabbed and had only recently had the cast removed. Although the incident did not result in any serious injury to Ian, it was painful and caused his mother to seek medical attention for her son. On April 27, 2001, as a result of the April 25, 2001, incident, Mr. Guzman was assigned to alternative work at his residence, with pay. Mr. Guzman was not allowed to have any contact in his assignment with students. On August 14, 2001, the County Court in and for Dade County, Florida, entered a "Stay Away Order" in Case No. M0130143 requiring that Mr. Guzman stay away from, and have no contact with, Ian. Disciplinary Action Against Mr. Guzman for the April 25, 2001, Incident On August 29, 2001, another conference-for-the-record (hereinafter referred to as the "second conference") was held. The second conference was attended by Julia F. Menendez, Regional Director, Region IV Operations of the School Board; Sharon D. Jackson, District Director; and Mr. Guzman. The second conference was held at the School Board's Office of Professional Standards. The second conference was conducted to discuss Mr. Guzman's performance assessments, non-compliance with School Board policies and rules regarding violence in the workplace and corporal punishment, insubordination, noncompliance with site directives regarding appropriate use of discipline techniques, violation of the Code of Ethics and Professional Responsibilities, and Mr. Guzman's future employment with the School Board. At the conclusion of the second conference, Mr. Guzman was informed that his alternative work assignment would be continued, that his actions would be reviewed with the Superintendent of Region IV Operations, the Assistant Superintendent in the Office of Professional Standards, and Edison's principal, and he was directed to refrain from touching, grabbing, hitting, or dragging any student for any reason. Subsequent to the second conference, the School Board's Office of Professional Standards concluded that Mr. Guzman had violated School Board and state rules. Therefore, an agenda item recommending dismissal of Mr. Guzman was prepared for the School Board to consider. That agenda item was discussed with Mr. Guzman on October 16, 2001, and was considered at the School Board's meeting of October 24, 2001. At its October 24, 2001, meeting, the School Board suspended Mr. Guzman without pay and approved the initiation of dismissal proceedings against him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the decision of the School Board of Miami-Dade County, Florida, suspending Angel Guzman without pay be sustained and that his employment with the School Board of Miami-Dade County, Florida, be terminated. DONE AND ENTERED this 27th day of March, 2002, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 2002. COPIES FURNISHED: Madelyn P. Schere, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Frank E. Freeman, Esquire 666 Northeast 125th Street Suite 238 Miami, Florida 33161 Merrett R. Stierheim, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue Whether just cause exists for Petitioner to suspend Respondent without pay and terminate her employment as a teacher.
Findings Of Fact The Parties Petitioner is a duly-constituted school board charged with operating, controlling, and supervising all free public schools within the Broward County, Florida, pursuant to Florida Constitution Article IX, section 4(b), and section 1012.23, Florida Statutes. At all times relevant to this proceeding, Respondent was employed with Petitioner as an exceptional student education ("ESE") teacher at Silver Ridge Elementary School in Broward County, Florida. The Events Giving Rise to this Proceeding Respondent has extensive educational training and experience in working with disabled and special needs students for many years. Respondent worked in the school system in Long Island, New York, as a paraprofessional for an estimated 13 to 14 years. Her duties included working with exceptional students at a cerebral palsy center, where she assisted teachers in changing students' diapers, feeding them, and assisting them in using various types of adaptive equipment. She also taught and tested special needs students having physical disabilities but possessing greater cognitive awareness. At the encouragement of teachers with whom she worked, Respondent pursued and received her bachelor's degree in elementary education in 1999, while continuing to work as a paraprofessional in the school system. Thereafter, she pursued her master's degree while working as a substitute teacher during the school year and as a teacher for summer school during the summer months. Respondent received her master's degree in special education in 2003. Respondent began working as an ESE teacher at Silver Ridge Elementary School in 2003, shortly after she moved to Florida. The allegations giving rise to this proceeding span the 2011-2012 and 2012-2013 school years. During both school years, Respondent's ESE students were disabled and most of them were nonverbal. Petitioner alleges that during both school years, Respondent engaged in physically and verbally aggressive and abusive actions toward students in her classroom in violation of Department of Education rules and Petitioner's policies. The 2011-2012 School Year Background Starting in August of the 2011-2012 school year, paraprofessionals Rostande Cherelus and Cara Yontz were assigned to assist in Respondent's classroom. Cherelus and Yontz both testified that they had a good working relationship with Respondent. However, this testimony is belied by the credible, persuasive evidence establishing that Respondent did not enjoy a smooth working relationship with either of them. The persuasive evidence establishes that the difficulties in Respondent's relationship with both paraprofessionals stemmed from their frequent tardiness, leaving the classroom during instructional time without Respondent's permission, and frequent use of their cell phones in the classroom during instructional time. Respondent let them know on many occasions that this behavior was not acceptable. The persuasive evidence further establishes that neither paraprofessional was particularly cooperative in assisting Respondent in the classroom. For example, when Respondent attempted to engage the participatory-level students in the various learning activities class, the paraprofessionals ——particularly Cherelus——would often respond with what Respondent characterized as "huffing and puffing," rolling of the eyes, crossed arms, and comments questioning the utility of engaging in activities to educate the students because "that kid can't do anything anyway." Respondent credibly testified that when admonished, Cherelus would make statements such as "thank God, God didn't give me a kid like that." Respondent consistently reported the ongoing problems with Cherelus and Yontz to then-Principal Marion Gundling and then-Assistant Principal Saemone Hollingsworth. However, it appears that this effort was in vain. By November 7, 2011, the situation in Respondent's classroom had deteriorated to the point that Respondent requested a meeting with Gundling and Hollingsworth to address the continuing problems with the paraprofessionals. After the November 7, 2011, the situation in Respondent's classroom did not improve. Respondent testified, credibly, that both paraprofessionals continued to be difficult to work with, that there was constant friction in the classroom, and that both paraprofessionals were aware of her lack of satisfaction with their behavior and job performance. They also knew that she communicated her dissatisfaction to the school administration. On December 1, 2011——notably, before Cherelus and Yontz alleged student abuse by Respondent1/——Respondent contacted Gundling and Hollingsworth by electronic mail ("email"), stating "[m]y classroom is an absolute disaster since our meeting." The email described in great detail2/ events, actions by the paraprofessionals, the dysfunctional atmosphere in Respondent's classroom arising from the paraprofessionals' behavior and poor job performance, and Respondent's continued dissatisfaction with them. On December 15, 2011, Yontz filed a written statement with the school administration alleging that Respondent had taken abusive actions toward students D.N. and J.M. Yontz's statement alleged that in October of that year, Respondent had become angry with D.N., screamed at her, and grabbed her hair from behind. The statement also alleged that in October of that year,3/ Respondent punished student J.M. by confining her to the classroom bathroom from 8:30 a.m. to 1:45 p.m. The statement further alleged that on December 15, 2011, Respondent had become angry with and screamed at student J.M., pushed her face, and attempted to secure J.M's glasses, which were too large for her face, with a rubber band. According to Yontz's statement, Respondent pulled J.M.'s hair, causing her to make noises indicating that she was in pain. Cherelus filed a written statement with the school administration on December 16, 2011, stating that when she had returned from break the previous day, J.M. was upset. According to Cherelus' statement, when she asked J.M. what was wrong, J.M. said "Ms. T. pull" and made a pulling motion while pointing to her glasses. On December 16, 2011, Respondent was removed from her classroom pending an investigation of the allegations against her made by Yontz and Cherelus. Ultimately, the investigation yielded insufficient evidence to support Yontz's and Cherelus' allegations and Petitioner took no disciplinary action against Respondent at that time. She was returned to her classroom in April 2012. Notwithstanding that the investigation absolved Respondent, Petitioner now seeks to take disciplinary action based on these accusations. Allegations in Amended Administrative Complaint In Petitioner's Amended Administrative Complaint filed in this proceeding on April 1, 2014, Petitioner alleges that during the 2011-2012 school year, Respondent engaged in physically and verbally aggressive and abusive acts toward students D.N., J.M., A.S., and C.A., who were assigned to her class. Each of these allegations is addressed below.4/ Student D.N. Petitioner alleges, in paragraph 5. of the Amended Administrative Complaint, that in October 2011, Respondent screamed at student D.N. for being unable to complete her work and pulled her hair. At the final hearing, Cherelus and Yontz both testified that one day in the classroom, Respondent grabbed D.N. by her ponytail. However, their testimony is inconsistent regarding key details and circumstances. Cherelus testified that Respondent grabbed D.N. and pulled her up from her chair because she had asked D.N. to get up and go get her classwork, and D.N. did not do so. Cherelus testified that Respondent said something to the effect of "[l]et's go, you don't want to do your work" and pulled D.N. up from her chair by her ponytail, causing D.N. to fall on the floor. Cherelus testified that D.N. screamed and Respondent let her go. Cherelus further testified that Respondent did not scream at D.N. Yontz, on the other hand, testified that Respondent screamed at D.N. because she was not focusing on the classwork in front of her on her desk. Yontz testified that at one point, Respondent grabbed D.N. by the back of the neck and forcefully held her head to keep her facing downward. Yontz testified that Respondent then grabbed and tugged D.N.'s ponytail and pulled her head backward to force her to look at her work. The inconsistencies between the Cherelus' and Yontz's testimony are significant. Cherelus described a situation in which Respondent jerked D.N.'s ponytail to make her get up from her desk, and that as a result, D.N. fell to the floor. However, Yontz described a situation in which D.N. remained seated and Respondent jerked her head backward by her ponytail to make her focus on the work on her desk.5/ Additionally, Yontz testified that Respondent screamed at D.N., while Cherelus specifically stated that she did not scream. Yontz testified that Respondent grabbed the back of D.N.'s neck, while Cherelus did not testify to that effect. Testimony regarding key details and circumstances surrounding the incident is vital to determining credibility in a case such as this, where the witnesses for both parties have differing accounts of the events at issue. Here, due to the inconsistencies in their testimony regarding significant details and circumstances regarding the alleged incident, the undersigned finds neither Cherelus' nor Yontz's testimony persuasive or credible. By contrast, Respondent provided a clear, detailed account of the incident that significantly differed from that provided by Cherelus and Yontz. On the day in question, Respondent was working with D.N., who has a movement-related disability, to direct her to focus on her work. Because of D.N.'s disability, she was easily distracted and often looked around at activity occurring on either side of her. Thus, when Respondent engaged in one-on-one instruction with D.N., she would stand behind D.N. and use a series of voice and gestural commands, verbal and gestural prompts, and physical prompts as necessary, to get D.N. to focus on her work. Pursuant to D.N.'s individual education plan ("IEP"), she had worn a weighted vest to assist her in focusing on her work, but shortly before the incident, her IEP had been amended to no longer include use of the vest, so Respondent had instead begun using physical compression on D.N.'s shoulders, with her thumbs touching the back of her neck, to assist D.N. in focusing. Respondent credibly testified that the compression was slight, not forceful. On the day in question, Respondent used the compression technique but D.N. continued to look around, so Respondent put her hands on the sides of D.N.'s face to focus her to gaze downward at her work. When Respondent removed the compression from D.N.'s shoulders, she popped backward. Respondent credibly testified that she did not pull D.N.'s hair or jerk her head backward by her ponytail. Respondent's account of the incident is credible and persuasive.6/ Further, the timing of Respondent's email communication with Gundling and Hollingsworth is significant to determining the comparative credibility of Respondent, Cherelus, and Yontz. Respondent's December 1, 2011, email to Gundling and Hollingsworth described in significant detail the events and actions that had taken place in Respondent's classroom following her November 7, 2011, meeting with them. Of particular note is Respondent's detailed description of Cherelus' actions on December 1, 2011, toward student D.N.——specifically, that Cherelus pulled D.N's hair and screamed at her. Respondent's email account of that incident, sent on the same day it was alleged to have occurred and describing it in substantial detail, is far more persuasive than both Cherelus' or Yontz's subsequent statements and hearing testimony regarding the incident. The credible, persuasive evidence leads to the inference that as a result of the paraprofessionals' poor relationship with Respondent, they accused her——after she had reported their poor performance——of the very conduct toward student D.N. that Respondent previously reported that Cherelus had committed. This is a far more reasonable inference than the version of events that Petitioner espouses——which would require the undersigned to infer that Respondent somehow knew that she was going to be accused, at a later date, of pulling D.N.'s hair and screaming at her, so she covered herself by preparing and sending the December 1, 2011, email accusing Cherelus of engaging in that same conduct. For these reasons, the undersigned finds the testimony of Cherelus and Yontz regarding the alleged incident involving D.N. incredible and unpersuasive. Conversely, the undersigned finds Respondent's testimony regarding D.N. credible and persuasive. Accordingly, Petitioner failed to prove the allegations in paragraph 5. of the Amended Administrative Complaint regarding student D.N. Student J.M. In paragraph 5. of the Amended Administrative Complaint, Petitioner alleges that in October 2011, Respondent confined student J.M. to the classroom restroom from 8:30 a.m. to 1:45 p.m. as punishment for urinating in her pants. Petitioner's direct evidence to support this allegation primarily consisted of Yontz's testimony.7/ According to Yontz, J.M. came to school one morning after having wet her pants the previous day, and Respondent immediately placed her in the classroom restroom, with the door closed, to punish her.8/ Yontz testified that Respondent left J.M. in the restroom by herself with the door closed beginning at 8:30 a.m. until 1:45 p.m., only being allowed to leave the restroom for lunch in the cafeteria. Yontz also testified that because J.M. was confined to Respondent's classroom restroom all day, the other students in Respondent's class had to use the restroom in other classrooms. Cherelus did not testify regarding this alleged incident.9/ Respondent's clear, credible explanation of this incident differed sharply from that provided by Yontz. Because J.M. frequently would urinate in her pants, her mother would send multiple sets of clothing to school so that Respondent could change J.M.'s clothes when this happened. J.M. had urinated on herself the previous day and had gone through her last set of clothing that day, so Respondent sent a note home to J.M.'s mother asking her to send a fresh set of clothing to school the following day. However, when J.M. arrived at school the next day, she had urinated in her pants and her mother had not sent extra clothing. Respondent changed J.M. into a borrowed set of D.N.'s clothing. J.M. again urinated in her pants and at that point, there was no extra clothing in the classroom for J.M. to wear. Respondent sent Cherelus to the school clinic to see if there was extra clothing that J.M. could wear and she also contacted J.M.'s mother to bring clothing to school for J.M. During the time it took for Cherelus to go to the clinic and return with clothing for J.M. to change into, Respondent put J.M. in the restroom. Respondent could not recall the exact amount of time that J.M. was confined to the restroom, but estimated that it was a short amount of time. She credibly testified that J.M. did not spend the entire day confined to the restroom, and that J.M. was not placed in the restroom as punishment, but, rather, to await a change of clothing. J.M.'s mother, Shakima Brown, verified Respondent's account of the incident. Brown testified that Respondent called her on the day in question to request that she bring a change of clothes to the school. Brown lived only ten minutes away, and she directed Respondent to place J.M. in the restroom until she could bring the extra clothing to the school. Brown testified, credibly, that J.M. had never communicated to her that Respondent confined her to the restroom as punishment, and that had that happened, J.M. would have let her know. The credible, persuasive evidence supports Respondent's account of this incident. The undersigned finds Yontz's account of this incident incredible and unpersuasive. Petitioner also alleges, in paragraph 6. of the Amended Administrative Complaint, that on December 15, 2011, Respondent verbally abused J.M., slapped her face, and popped her with a rubber band that she had tied to J.M.'s glasses in an effort to keep them on her face. Yontz is the only witness whose testimony Petitioner presented who claimed to have actually seen the incident. Yontz testified that on the day in question, J.M. was attempting to write her name but was unable to do so without making mistakes. According to Yontz, this annoyed Respondent, who screamed at J.M. Yontz testified that J.M.'s glasses kept falling off, so Respondent tied a rubber band on the ends of them to keep them from falling off. However, the rubber band was too tight so kept popping J.M.'s ear, causing her to make noises as if she were in pain. According to Yontz, Respondent pushed J.M.'s face and screamed at her "oh, you're so annoying, you freaking idiot." Yontz testified that Respondent did not slap J.M.'s face.10/ Cherelus' also testified regarding this incident. She testified that on that day, she took J.M. to another classroom, and that as she was doing so, J.M. cried. Cherelus testified that when she asked J.M. what was wrong, J.M. said "Ms. T slapped me" and gestured in a manner that Cherelus interpreted as showing that Respondent had slapped J.M.11/ On cross examination, Cherelus acknowledged that she did not see Respondent slap J.M., pull her hair, or otherwise hurt her. Cherelus further acknowledged that J.M. is largely nonverbal and incapable of articulating sentences, and that she only said "Ms. T." while making a pulling motion. In any event, Cherelus did not have personal, independent knowledge of this alleged incident, and her testimony was based on J.M.'s limited statement and gesture. Maureen McLaughlin, the child abuse designee for Silver Ridge Elementary School, also testified regarding this alleged incident. McLaughlin testified that Yontz brought J.M. to her office,12/ and that at Yontz's prompting, J.M., using a teddy bear, indicated that Respondent had pushed her head using an open hand. McLaughlin testified: [a]nd basically, it's hard to enact, but J. took her hand, sort of open like this, and what I remember is that her head turned, like, she turned her head. So it was hard to tell, like, is it a slap, is it a push, but it was an open hand and her head ended up being turned because of it. McLaughlin reported the incident to the abuse hotline.13/ Respondent provided a credible, persuasive explanation of the incident. She testified that J.M. previously had a pair of glasses that did not fit her and had used a teal elastic band to hold them on her face. At some point, J.M. lost both the elastic band and her glasses, so Respondent contacted J.M.'s mother regarding getting another pair of glasses for J.M.; however, J.M.'s mother told her that they could not afford to purchase another pair of glasses. Respondent gave J.M.'s mother a pair of glasses frames that had belonged to her daughter, and J.M.'s mother had the frames fitted with J.M.'s prescription. However, those glasses also did not fit J.M.'s face and fell off when she looked down. On the day in question, Respondent tried, unsuccessfully, to tie the glasses on J.M.'s face using a large rubber band. The rubber band popped, causing J.M. to make a sound. Respondent apologized, tried one more time to tie the glasses on J.M.'s face using the rubber band, then gave up. Respondent testified that while she was attempting to tie the glasses on J.M.'s face, J.M. was moving around, so Respondent had J.M. put her head down on the desk. J.M. was hearing-impaired and had put her head down on the side on which her functioning ear was located, so Respondent used her open hand to turn J.M.'s head to the other side. Respondent credibly testified that she did not slap J.M., scream at her, or pull her hair. J.M.'s mother, Shakima Brown, testified that she had been informed of the incident concerning J.M.'s glasses and that on her own, over a period of days, had asked J.M. several times if anyone had hit her. Brown testified, credibly, that J.M. said "no" every time she was asked.14/ The credible, persuasive evidence establishes that Respondent did not scream at J.M., did not slap her face, and did not intentionally hurt her by popping her ear with a rubber band. Accordingly, Petitioner failed to prove the allegations in paragraph 6. of the Amended Administrative Complaint. Student A.S. In paragraph 5. of the Amended Administrative Complaint, Petitioner alleges that Respondent handled A.S. in a physically rough manner, causing him to sustain a scratch on his neck. Cherelus testified that she did not recall any incident involving a student named "A.," and she could not recall his last name. Yontz testified that one day, she took the children out for recess, and as they were leaving, A. was in the room with Respondent. A. subsequently came outside and was crying, and Yontz observed scratch marks on A.'s neck. Yontz testified that she had asked what had happened, and Respondent told her that A. had scratched his neck on the corner of the counter as he put trash in the trash can. Neither Yontz nor Cherelus saw Respondent scratch A., and Petitioner presented no other evidence showing that Respondent scratched A. The sum of Petitioner's evidence regarding this allegation is that A. was scratched while in the classroom with Respondent. There is absolutely no competent substantial evidence in the record showing that Respondent scratched A. Additionally, neither Yontz nor Cherelus, or any other witness, specifically identified "A." as the student "A.S." named in paragraph 5. of the Amended Administrative Complaint. Thus, Petitioner failed to present any competent substantial evidence linking the testimony about "A." to any allegations in the Amended Administrative Complaint. Accordingly, Petitioner failed to prove the allegations set forth in paragraph 5. of the Amended Administrative Complaint involving student A.S. Student C.A. Petitioner alleges, in paragraph 7. of the Amended Administrative Complaint, that C.A. went home with scratches on his neck and face over a three-day period, and that when Respondent was questioned, she claimed that C.A. "had an encounter with a tree." Presumably, paragraph 7. is intended to charge Respondent with scratching C.A. and then lying about it. However, this paragraph does not expressly allege that Respondent scratched C.A. or otherwise injured C.A., so fails to allege that Respondent engaged in conduct that, if proven, would violate Petitioner's policies or Department of Education rules. Further, to the extent paragraph 7. could be read to sufficiently allege that Respondent scratched or otherwise injured C.A., there was no testimony presented at the final hearing by anyone having personal knowledge of the alleged incident. Thus, Petitioner failed to present any competent substantial evidence supporting this allegation.15/ Thus, Petitioner failed to prove the allegation involving student C.A. set forth in paragraph 7. of the Amended Administrative Complaint. The 2012-2013 School Year Background Petitioner alleges in the Amended Administrative Complaint that during the 2012-2013 school year, Respondent again engaged in physically and verbally abusive acts toward students assigned to her class. Paraprofessionals Shirley Brown and Monica Jobes were assigned to assist in Respondent's classroom in the 2012-2013 school year. That year, approximately nine ESE students were assigned to Respondent's classroom. The credible, persuasive evidence made abundantly clear that neither Brown nor Jobes enjoyed a smooth working relationship with Respondent. This was, in large measure, due to the fact that Respondent had high expectations regarding their performance in assisting her in the classroom, and she consistently reminded Brown and Jobes of those expectations.16/ In particular, Respondent made clear that her——and, by extension, the paraprofessionals'——job entailed taking reasonable and necessary measures to work with students to help them achieve to their capabilities. Respondent testified, persuasively, that neither Brown nor Jobes were dedicated to this approach and instead viewed their jobs more as caretakers or "babysitters" of the students for the school day. Respondent frequently made clear to Brown and Jobes that as the teacher, she was in charge of the class and the instructional approach and all other activities and aspects of classroom management. It was apparent from the credible, persuasive evidence that Brown and Jobes resented Respondent's repeated, overt assertion of authority over them. The persuasive evidence establishes that Brown was as much as a half-hour late to Respondent's class nearly every day, and that Respondent also regularly had to admonish her about frequent use of her cell phone for personal matters during instructional time. Brown also frequently disregarded Respondent's instructions on a range of student-related matters, and when Respondent confronted her, Brown verbally lashed out.17/ The persuasive evidence also establishes that Jobes often sent and received personal text messages during instructional time, causing her to be distracted and interfering with her work. The persuasive evidence established that Brown's and Jobes' behaviors were disruptive to the classroom environment and, in some instances, posed a danger to the students, and that Respondent let them know that their behavior was unacceptable. Shortly before the holiday vacation in December 2012, a holiday celebration was held in Respondent's classroom. While Respondent tended to the other students in the class and their parents, she specifically asked Brown and Jobes to stay with and tend to student C.R., since he did not have a parent present at the celebration. At some point, both paraprofessionals left C.R. alone. While unattended, C.R. ingested something to which he was allergic, went into anaphylactic shock, and ultimately had to be transported to the hospital. In early January 2013, shortly after school commenced following the holiday vacation, Respondent's students went to the music teacher's classroom. Brown was going to place C.R. on the floor, notwithstanding that Respondent had specifically directed her not to do so because he might again ingest something that could make him ill. At that point, Respondent told Brown not to place C.R. on the floor, to which Brown responded "don't worry, I got this" or something to that effect. Respondent tersely admonished Brown and reminded her that it was her (Respondent's) call because she was the teacher.18/ It was apparent from Brown's testimony that she greatly resented Respondent's assertion of authority over her. To address Brown's ongoing behavior and performance issues, Respondent requested a meeting on January 9, 2015, with Principal Hollingsworth, Assistant Principal Long, and ESE Supervisor Vickie Bloome. At the meeting, Hollingsworth informed Brown that Respondent had complained to her about her (Brown's) repeated cell phone use during classroom instructional time and directed her to refrain from using her cell phone during that time. Notwithstanding this meeting, nothing changed in Respondent's classroom. Respondent continued to experience friction in working with the paraprofessionals, who knew that Respondent had complained to the school administration about their performance. On January 16, 2013, an incident involving C.R., discussed in detail below, occurred. During this incident, C.R. became very aggressive, fought, bit and scratched himself, and grabbed for Respondent's insulin pump, which she wore on her arm. As discussed in greater detail below, Respondent and C.R. fell on the floor. Respondent prepared a written report detailing the incident. Persons who witnessed the incident, including Brown and Jobes, signed the report, and Respondent filed it with the school administration that day. On January 23, 2013, Respondent called a meeting with Jobes and Brown to address their ongoing performance issues, update them on student issues, and cover common core implementation procedures. In the email Respondent sent to Jobes and Brown regarding the meeting, she reminded them: "STILL seeing phones being checked and answered during class time. Even if a phone rings during class, it should NOT be answered until your personal time." At the meeting, Respondent once again reminded Brown and Jobes that they were not to use their cell phones during classroom instructional time. On the afternoon of January 23, 2013, following Respondent's meeting with her and Jobes, Brown reported to Assistant Principal Long an incident in which T.P. allegedly said "Ms. T. hurt me." At some point, Jobes also reported to Long that T.P. told her the same thing.19/ Jobes also sent an email to Hollingsworth that afternoon describing a situation in which T.P told her "Ms. T. hurt me." Thereafter, Long spoke with Respondent to get her version of what had happened. At some point on the evening of January 23, 2013, Respondent sent an email to Long stating that she had not been alone with T.P. that day. It was apparent from Respondent's email that she felt that could not trust Brown. She requested that Brown be removed from her classroom. Brown was removed from Respondent's classroom on the morning of January 24, 2013. At some point thereafter, Brown prepared, signed, and filed a report, dated January 23, 2013, alleging that Respondent had engaged in numerous aggressive and abusive acts toward students over a period of months. It is obvious in reading the report——which references Brown's removal from Respondent's classroom———that it was not prepared until sometime after Brown was removed from Respondent's classroom on January 24, 2015. Jobes also signed the report. She testified that Brown had prepared it and that she had contributed "notes." Brown also prepared and filed another written statement alleging that Respondent had engaged in specific instances of abusive and aggressive behavior toward students in her class. This report also was dated January 23, 2013, but again referenced her removal from Respondent's classroom, so obviously was prepared sometime after January 24, 2013. On the evening of January 24, 2013, Jobes sent an email to Hollingsworth requesting to be removed from Respondent's classroom. The email stated: "I came home today so stressed and exhausted from Ms. T all day at me." Jobes, who was pregnant, was concerned that the stress she was experiencing in working with Respondent in her classroom would adversely affect her health. On January 25, 2013, Jobes was removed from Respondent's classroom. On or about January 29, 2013, Respondent was removed from her classroom and reassigned to another position in the school system pending the outcome of an investigation conducted by the Broward County Sheriff's Office Child Protective Investigations ("CPI") Section. In a statement dated February 3, 2013, Jobes alleged that Respondent had taken aggressive and abusive actions toward certain students in her class over a period of months. She also stated that she felt bullied because Respondent, at times, spoke to her disrespectfully, and that Respondent would "constantly remind everyone in the room that she is the boss and if they wanted to be the boss then they need to go get a 4-year degree." Notably, prior to their January 23, 2013, meeting with Respondent, neither Jobes nor Brown had ever reported that Respondent had engaged in aggressive or abusive behavior toward her students.20/ Allegations in Amended Administrative Complaint In the Amended Administrative Complaint, Petitioner alleges that Respondent engaged in physically and verbally aggressive and abusive behavior toward specific students in her class. Each of these allegations is addressed below. Student M.M. In paragraph 9. of the Amended Administrative Complaint, Petitioner alleges that Respondent grabbed student M.M. by the back of her neck, held her head down in the garbage can to make her retrieve an open bag of chips, and forced her to eat them because she had asked for them. At the hearing, Brown and Jobes both testified that on one occasion during classroom snack time, Respondent had given M.M. a bag of chips at her request. M.M. ate a few chips, then tossed the bag in the trash can. Brown and Jobes testified that Respondent held M.M. by the back of the neck and forced her to remove the chips from the trash can. On direct examination, Jobes testified that Respondent forced M.M. to eat the chips, but on cross-examination, testified that, M.M. did not eat the chips. Brown testified that M.M. ate some of the chips but did not finish. Respondent confirmed that she did make M.M. retrieve the chips from the garbage can, but explained the context and the circumstances for making M.M. do so. She credibly denied that she had forced M.M. to eat the chips. Specifically, M.M. had been purchasing school lunches, but Jobes and Brown informed Respondent that M.M. was not eating her lunch. Respondent contacted M.M.'s mother, and collectively, Respondent and M.M.'s mother arrived at a plan in which M.M. would pick out her lunch and snack items at home. The items would be packed in her lunch box, and she would bring her lunch and snacks to school every day. M.M.'s mother also sent a large bag of snacks for M.M. that was kept in the classroom closet and M.M. would get the snack of her choice at snack time. M.M.'s mother specifically requested that Respondent send home anything that M.M. did not eat so that she (M.M.'s mother) would know what M.M. was and was not eating. On the day at issue, M.M. requested a bag of chips. Respondent gave them to her and M.M. returned to her seat, where she ate one or two chips, then threw the bag of chips away in the trash can. Respondent saw this and told M.M. to retrieve the chips from the trash can. Respondent did this so that she could send them home with M.M., consistent with the plan she had devised with M.M.'s mother. Consistent with Respondent's method of prompting M.M.'s behavior, she asked M.M. three times to remove the chips from the trash can. She then added a gestural prompt, done multiple times, that consisted of pointing to the trash can to inform M.M. exactly what she wanted her to do and where she was to go. When M.M. did not respond, Respondent took M.M. by the hand, led her to the trash can, and again gestured and asked her to remove the chips. Again, M.M. did not respond, so Respondent employed a physical prompt that consisted of placing her hand on M.M.'s shoulder and hand and applying enough pressure to show M.M. that she needed to bend down to retrieve the chips. At that point, with Respondent's help, M.M. retrieved the chips from the trash can. Respondent told M.M. to put them in her lunch box so that she could take them home, consistent with M.M.'s mother's request. Respondent credibly testified that she did not tell M.M. she had to eat the chips or force her to eat them. The evidence does not establish that M.M. cried or was distressed as a result of Respondent's actions, and there was no evidence presented to show that M.M. was injured or sickened as a result of this incident. The credible, persuasive evidence establishes that Respondent did not punish M.M. for throwing the chips away, that she did not forcefully grab M.M. by the back of the neck or hold her head down into the trash can, and that she did not force M.M. to eat the chips. The evidence instead shows that Respondent's actions in dealing with M.M. on this occasion were appropriate and were consistent with her discussions with M.M.'s mother. Petitioner did not prove the allegations in paragraph 9. of the Amended Administrative Complaint. Student T.P. In paragraph 10. of the Amended Administrative Complaint, Petitioner alleges that in December 2012, Respondent force-fed student T.P., causing him to regurgitate. The undisputed evidence establishes that T.P. often refused to eat. On the day in question, T.P. purchased lunch from the cafeteria but he refused to eat the lunch, so was brought back to the classroom, where Respondent attempted to get T.P. to eat his lunch. Brown testified that Respondent forced a piece of chicken and chicken skin into T.P.'s mouth, that he was crying hysterically, and that he gagged. Brown further testified that Respondent made a video recording of T.P. eating. Jobes, who also was present when the incident occurred, did not testify that Respondent force-fed T.P.——only that Respondent was verbally urging T.P. to eat plantains. She did not testify that T.P. gagged or regurgitated. She also testified that Respondent made a video recording of the incident. Respondent testified that T.P. was a very picky eater who did not eat well, and that he regurgitated on the way to lunch every day. She testified, credibly, that she had discussed this issue with T.P.'s parents, and they had directed her to encourage him to eat.21/ Because the sight of other students eating or the smells of food would cause T.P. to vomit, he typically ate at a small table in the cafeteria positioned so he could see the outdoors. On the day in question, the students ate lunch in the classroom. T.P. was having particular difficulty eating that day because he was situated with the entire class as they ate, making him uncomfortable. In an effort to persuade T.P. to eat, Respondent went over to him, picked up a piece of food and coaxed him to eat. T.P. regurgitated all over his food. At that point, Respondent stopped trying to persuade T.P. to eat and sent a note home to his parents describing what had happened. Respondent's version of events is credible. By contrast, the testimony of Jobes and Brown regarding this incident was inconsistent, incredible, and unpersuasive. Thus, Petitioner did not prove the allegations in paragraph 10. of the Amended Administrative Complaint. In paragraph 14. of the Amended Administrative Complaint, Petitioner alleges that on January 23, 2013, Respondent grabbed T.P. by the back of the neck and pushed him toward the door, causing him to stumble and fall to the ground and to verbalize that "Ms. T. hurt me." Jobes testified that on that day, she was in the cafeteria when Brown and T.P. entered, with T.P crying. Jobes testified that Brown told her at lunch that she (Brown) had heard some kind of altercation while she was in the classroom restroom. Jobes did not see Respondent grab, push, or take any other action toward T.P. Jobes testified that later that day, T.P. told her "Ms. T. hurt me," and held his hands in a "U" shape. Jobes interpreted that as indicating that Respondent had choked T.P. Brown testified that she actually saw Respondent grab T.P. by the back of the neck and push him toward the door, causing him to fall, and that he got up, crying, and went with Brown and the rest of the class to lunch. She testified that later in the afternoon, T.P. told her and Jobes that "Ms. T. hurt me." Specifically, she testified: I didn't understand him clearly, you know. So Ms. Jobes was on the other side. He turned, he said 'Ms. Jobes, Ms. Jobes, Ms. T. hurt me, she grabbed me like this." And I, like, what? He said 'I'm going to tell them, I'm going to tell them, Ms. Brown, that Ms. T. hurt me, you see, Ms. T. hurt me.' The undersigned finds Brown's testimony incredible and unpersuasive. First, Brown's statement that she actually saw Respondent grab and push T.P. is inconsistent with her statement made to Jobes while at lunch that same day, that she had been in the restroom at the time and had heard an altercation. Further, the evidence showed that while T.P. is somewhat verbal, he is not capable of the extended, coherent discourse that Brown claims he verbalized in telling her and Jobes that Respondent had hurt him. The undersigned also assigns no weight to Jobes' testimony regarding whether the alleged incident actually occurred. Jobes did not witness the alleged incident, so has no personal independent knowledge regarding whether it occurred. Thus, Petitioner did not prove the allegations in paragraph 14. of the Amended Administrative Complaint. Student M.P. In paragraph 11. of the Amended Administrative Complaint, Petitioner alleges that in an effort to make M.P. stop crying, Respondent jerked her chair backward to scare her to make her stop crying, and that when M.P. did not stop crying, Respondent laid the chair down on the floor so that M.P.'s feet were in the air, leaving her in that position for approximately 20 minutes. Brown and Jobes both testified that M.P. often cried and rocked back and forth in her chair. They testified that in order to make M.P. stop crying, Respondent would try to scare her by jerking the chair backward. Then, if M.P. did not stop crying, Respondent would lay her chair down on the floor so that M.P.'s feet were in the air, and she would leave M.P. in that position until she cried herself to sleep. Both Brown and Jobes testified that they had seen Respondent do this on numerous occasions. Respondent acknowledged that she had, on more than one occasion, laid M.P. down on the floor in the Rifton chair,22/ but, again, provided credible context for taking this action. Specifically, as a result of her exceptionality, M.P. would constantly verbalize and often would rock in her chair. When she became agitated, she would rock her chair so violently that she tipped the chair backward. Initially, Respondent had moved M.P.'s chair against a bookshelf, but M.P. banged her head on the bookshelf. In an effort to prevent M.P. from hurting herself, Respondent then removed M.P. from her chair and placed her on the floor; however, M.P. banged her head on the floor. At that point, Respondent placed M.P. in the Rifton chair. M.P. continued to rock violently, so Respondent ordered a Rifton chair with footrest; however, that measure did not solve the problem with M.P.'s rocking. Respondent then considered placing M.P.'s chair up against the teacher's desk, which would help stabilize the chair but had nothing against which Respondent could bang her head. On one occasion, as Respondent tipped the chair back at a 45-degree angle to place it against her desk, she noticed that M.P. calmed down and closed her eyes. Thereafter, Respondent would sometimes tip M.P.'s chair against her or her desk if she was not otherwise occupied with activities. However, when she was occupied with other activities, she would sometimes completely recline the Rifton chair, with M.P. strapped in it, on the floor. She did this because it calmed M.P., who otherwise would constantly vocalize, cry, and rock back and forth. To determine whether this was an appropriate technique, Respondent asked colleagues who also taught ESE students about their view of this technique and whether there were better techniques of which they were aware. Respondent testified, credibly, that the consensus among other ESE teachers was that if the technique worked to soothe the child and did not endanger her, it was appropriate to use. Respondent also had consulted regularly with occupational specialist Mariana Aparicio-Rodriquez regarding techniques to prevent M.P. from rocking her chair so that she would not tip her chair over and injure herself, but they had not collectively arrived at a solution to the problem. Respondent testified that she and Aparicio-Rodriquez had not specifically discussed reclining the Rifton chair on the floor with M.P. strapped in it. One day, while Respondent was alone in the classroom, Aparicio-Rodriquez entered the classroom and saw M.P. completely reclined on the floor in the Rifton chair. Initially, Aparicio- Rodriquez was alarmed that M.P. had tipped the chair over. Aparicio-Rodriquez testified that Respondent told her that she had placed M.P. on the ground to give her a sense of what it felt like to fall back. Respondent then picked up the chair and placed M.P. in an upright position. Aparicio-Rodriquez confirmed that during the entire time that she was in Respondent's classroom, M.P. was calm, unhurt, and not in distress, and that she did not cry. Aparicio-Rodriquez testified that she did not believe this was an appropriate or useful technique for teaching M.P. not to rock in her chair, and she had intended to report the incident to her supervisor, but because one of Respondent's paraprofessionals informed her that the matter was going to be reported, Aparicio-Rodriquez did not report it. Aparicio- Rodriquez testified that she did not consider the incident to constitute child abuse, so did not report it to the Department of Children and Families. On cross-examination, Aparicio-Rodriquez stated that it was her opinion, from an occupational therapist's perspective, that using the Rifton chair in such a manner was not appropriate; however, she conceded that placing M.P. on the floor in a reclined position in the Rifton chair was not unsafe, and that M.P. was neither hurt nor in imminent or potential danger. She acknowledged that she and Respondent had a difference of opinion regarding the propriety of the use of the Rifton chair in this manner.23/ Aparicio-Rodriquez did not identify any statute, rule, policy, or other applicable standard that was violated by Respondent's use of the Rifton chair in this manner. The persuasive evidence supports the inference that Respondent's placement of M.P. in the Rifton chair in a reclined position on the floor was not intended as a disciplinary measure to frighten or punish M.P. for crying or rocking in her chair, and was appropriate under the circumstances. Respondent credibly testified that she had tried numerous measures to prevent M.P. from harming herself while rocking back and forth, and that when she inadvertently discovered this technique, she discussed it with other ESE professionals, who had suggested that she continue using it since the child was not distressed or injured and the technique worked to soothe her and prevent her from rocking back and forth and potentially injuring herself. Aparicio-Rodriquez disagreed with Respondent regarding the appropriateness of the technique, but she was neither qualified nor presented as an expert witness in appropriate teaching techniques for ESE students or in any other subject, and she did not identify any applicable professional or other standards that were violated by Respondent's use of the Rifton chair in this manner. The persuasive evidence establishes that Aparicio- Rodriquez and Respondent had a difference of opinion regarding the appropriateness of this technique; however, unlike Aparicio- Rodriquez, Respondent had actual successful experience in using this technique without harming M.P. Thus, Respondent's view regarding the appropriateness of using this technique under the circumstances is afforded greater weight than Aparicio- Rodriquez's view. Petitioner did not prove that Respondent distressed, injured or otherwise harmed M.P., placed M.P. in danger, or violated any applicable statute, rule, policy, teaching technique, or standard by placing M.P. in the Rifton chair in a reclining position. Thus, Petitioner did not prove the allegations set forth in paragraph 11. of the Amended Administrative Complaint. Petitioner also alleges that on one occasion, Respondent disciplined M.P. for crying by placing a plastic bag of ice directly on M.P.'s bare chest, and when that technique was unsuccessful, Respondent placed the bag of ice on M.P.'s back, causing her to cry more loudly. Petitioner presented the testimony of Jobes to substantiate this allegation. Jobes testified that "a couple of times," she saw Respondent place bags of ice under M.P.'s clothing on her bare skin in an effort to get M.P. to stop crying, but that M.P. would not stop crying. Petitioner did not present the testimony of any other witnesses to corroborate Jobes' testimony. Respondent flatly denied ever having placed ice on M.P. for any reason, and stated that under any circumstances, she did not know how that would have helped make M.P. stop crying. Respondent also denied having kept ice in the refrigerator in her classroom. Respondent's testimony was credible, and Jobes' testimony was not credible, regarding these allegations. Accordingly, Petitioner did not prove the allegations in paragraph 12. of the Amended Administrative Complaint. Student C.R. In paragraph 13. of the Amended Administrative Complaint, Petitioner alleges that on one occasion, Respondent removed C.R. from his wheelchair, screamed in his ear, held both hands behind his back, laid him face-down on the floor, and laid on top of him for several minutes as he gasped for air. The undisputed evidence shows that on the morning of January 16, 2013, student C.R. (also referred to as "C.J." in the final hearing testimony) arrived at school in an extremely emotionally-distressed state. Although C.R. is a small child who weighs approximately 30 pounds and is confined to a wheelchair, he becomes physically aggressive when distressed and is capable of inflicting injury on others by biting, scratching, and hitting. Upon arriving at school that day, C.R. physically struggled with school personnel, including Jobes, Brown, and Cherelus. Brown took C.R., still upset, in his wheelchair to Respondent's classroom, where he was placed in his classroom chair. C.R. attempted to grab, bite, and scratch Respondent, Jobes, and Brown, bit his own hands, and rubbed and scratched his own face, arms, and legs. Respondent left him in his chair and he eventually calmed down. At that point, Respondent removed C.R. from his chair and carried him to another classroom, where the rest of the class was engaged in instructional exercises. Thereafter, when Respondent carried C.R. back to her classroom, C.R. again became very upset and bit and scratched her. At that point, Respondent notified the school administration and C.R.'s mother of the incident involving C.R. that morning. Assistant Principal Long visited Respondent's classroom to determine what had happened. As of 11 a.m. that day, C.R. was still seated in his classroom chair aggressively biting his own hands and rubbing and scratching his face, arms, and legs.24/ Respondent prepared and submitted an incident report detailing these events, and Brown, Jobes, and Cherelus, and another school staff member, Julie Weiss, signed and dated the report that same day. Jobes testified she read the January 16, 2013, incident report before signing and dating it that same day. She stated that although she had signed the document without being under duress, she had questioned Respondent regarding its accuracy before signing it. Brown testified that she signed the January 16, 2013, incident report that day, but did not read it before she signed it. It is undisputed that at some point in the day on January 16, 2013, Respondent and C.R. ended up on the floor of Respondent's classroom, with Respondent laying on top of C.R. However, there is conflicting evidence regarding the time of day, sequence of events, and circumstances that led to this incident. Jobes and Brown both testified that the events that led to Respondent and C.R. being on the floor with Respondent laying on top of C.R. occurred in the morning after C.R. came to school in an emotionally distressed state, and that Respondent had placed C.R. on the floor and laid on top of him to punish him for his aggressive behavior. However, their testimony is contradicted by the version of events detailed in the January 16, 2013, incident report——which they both had signed and dated that same day, thus tacitly acknowledging its accuracy. As discussed in greater detail below, the credible, persuasive evidence establishes that the incident during which Respondent and C.R. ended up on the floor actually occurred later that same day, and that afterward, C.R. was taken from the classroom to the school clinic and did not return to the classroom for the rest of the day. Had Brown and Jobes been correct regarding the time of day when the incident occurred, C.R. would have been removed from the classroom during the morning. However, according to the January 16, 2013, incident report, C.R. was still in the classroom as of approximately 11 a.m. that day. Indeed, according to the incident report, Assistant Principal Long visited the classroom to investigate the events that were detailed in the report. Had C.R. been removed from the classroom in the morning after the incident, Long would have discovered that when she visited the classroom.25/ Further, Respondent would have known that so would not have stated in the written incident report that C.R. was still in the classroom as of 11 a.m. that day. It is undisputed that Jobes did not actually witness Respondent place C.R. on the floor. Jobes testified that when she looked over from another part of the classroom where she had been tending to other students, she saw C.R. face down on the floor with Respondent on top of him. Notwithstanding that by her own admission, Jobes did not witness the entire incident between Respondent and C.R., she nonetheless testified that Respondent held C.R. down on the floor for three to five minutes.26/ Brown claims to have witnessed the entire incident between Respondent and C.R. She testified that C.R. was acting aggressively, so to punish him, Respondent picked him up, flipped him around, placed him face-down on the floor, and laid on top of him for approximately 20 seconds as he gasped for breath. As noted above, the credible, persuasive evidence establishes that the allegation regarding Respondent laying on top of C.R. arose from an incident that occurred later in the day on January 16, 2013, after lunch and after the incident that had happened earlier that day. The credible evidence establishes that when C.R. returned to Respondent's classroom after having had lunch in the cafeteria under Jobes' and Brown's supervision, his face was red and he was scratching himself and squirming in his chair. Respondent became very concerned, from the previous experience that school year, that C.R. was again having an allergic reaction to something he had eaten. Respondent removed C.R. from his wheelchair in order to place him in his Rifton chair so that she could administer his epi-pen to counter any allergic reaction he might have been having. Respondent is diabetic and wears an insulin pump strapped to her left arm. Respondent testified, credibly, that as she was removing C.R. from the wheelchair, he grabbed at her insulin pump. In an effort to prevent C.R. from pulling her insulin pump off of her arm, Respondent jerked her hand and arm backward, causing her to lose her balance. She fell to the floor with C.R. and landed on top of him. Respondent estimated that she and C.R. were in that position for perhaps five seconds,27/ at which point she scrambled off of C.R. and placed him in his Rifton chair. C.R. was then taken to the clinic to address his allergic symptoms and did not return to the classroom that day. Respondent testified, credibly, that Brown did not witness the entire event because for part of it, she was in the restroom with M.P., consistent with their established routine after the students returned from lunch. The undersigned finds Jobes' and Brown's version of the incident unpersuasive and incredible.28/ Their testimony was imprecise, inconsistent, and directly contradicted by other credible evidence regarding the incident. By contrast, Respondent's testimony regarding the incident was specific, precise, and detailed. The undersigned finds her account of the incident credible and persuasive. Thus, Petitioner failed to prove the allegations in paragraph 13. of the Amended Administrative Complaint. Allegations Regarding Unspecified Students Petitioner alleges, in paragraph 8. of the Amended Administrative Complaint, that Respondent "was observed grabbing students by the arm and forcefully pulling them to the ground." The Amended Administrative Complaint does not identify the students whom Respondent is alleged to have treated in such a manner. Jobes testified that "one or two times" she had seen Respondent grab a student by the arm and pull that student to the ground in an effort to get the student to sit down. She could not recall which students she allegedly saw Respondent treat in that manner and she did not provide any detail regarding these alleged incidents. Her testimony was not corroborated by any other competent evidence in the record and was too vague and lacking in detail to be deemed credible or persuasive. Brown testified that on one occasion, Respondent pushed M.P. to make her walk faster, causing her to fall to the ground. Although Brown identified the specific student, she provided no temporal context or detail regarding the incident. Her testimony was confused and imprecise, so was neither credible nor persuasive. Petitioner failed to prove the allegation in paragraph 8. of the Amended Administrative Complaint that Respondent grabbed students by the arm and forcefully pulled them to the ground. Petitioner also generally alleges, in paragraph 8. of the Amended Administrative Complaint, that on occasion, Respondent would grab students by the neck to force them to look at their work. However, neither Brown nor Jobes identified any specific students to whom Respondent's alleged conduct was directed or provided any detail or context in which these alleged incidents occurred, and their testimony was too vague and imprecise to be deemed credible or persuasive. Petitioner did not present any other competent substantial evidence to substantiate this allegation. Respondent testified that at times, it was necessary for her to physically focus students' attention on their work. At those times, she would place her hands on the student's head and turn the student's face down toward the desk so that the student could attend to his or her work. She testified that she did not grab students by the back of the neck or engage in any forceful techniques as she focused their attention on their work. Her testimony was credible and persuasive. Thus, Petitioner failed to prove the allegation in paragraph 8. of the Amended Administrative Complaint that Respondent grabbed students by the neck and forced them to look at their work. Petitioner also alleges, in paragraph 8. of the Amended Administrative Complaint, that "[i]n one incident, Respondent crumbled [sic] a student's paper into a ball before throwing it at the student." The student whom Respondent is alleged to have treated in this manner was not identified in the Amended Administrative Complaint. Paragraph 8. specifically states that the incidents alleged therein occurred "shortly after the commencement of the school year in August 2012." However, the only evidence Petitioner presented in support of this allegation was the testimony of Cara Yontz, a paraprofessional assigned to Respondent's classroom in the 2011-2012 school year——a completely different school year than Respondent's actions alleged in the Amended Administrative Complaint. Thus, Petitioner failed to present any evidence to substantiate this allegation in paragraph 8. Even assuming that the reference in the Amended Administrative Complaint to the 2012-2013 school year was a drafting error and that Petitioner actually intended to allege that Respondent engaged in such conduct during the 2011-2012 school year, Petitioner still did not prove this allegation by credible, persuasive evidence. Yontz testified that on one occasion, a student named "D." was having difficulty with his work and that twice, when he turned his work in to Respondent, she yelled at him, crumpled up his paper, and threw it back at him, causing him to cry. Petitioner did not present any other competent substantial evidence to support this allegation. Respondent denied having thrown D.'s paper at him and testified, credibly, that she never had thrown anything at any student. The undersigned finds Respondent's testimony on this point credible and persuasive. Thus, Petitioner failed to prove the allegation in paragraph 8. of the Amended Administrative Complaint that Respondent crumpled a student's work and threw it at him. Petitioner also alleges in paragraph 8. that Respondent verbally abused unspecified students, making statements such as "they're so stupid," and that she was "happy that God never gave her kids like them." Petitioner did not present credible, persuasive evidence proving this allegation, and Respondent credibly testified that she had not, and would not, ever address a student in such a manner. Failure to Provide Statement On March 4, 2013, the Broward District Schools Police Department issued a Notice to Appear for Statement ("NTA") to Respondent, informing Respondent that an investigation regarding a reported incident had been initiated. The NTA informed Respondent that on March 11, 2013, she was required to appear at a designated location and provide a statement as part of the investigation. The NTA further informed her that a representative of her choice could be present during the statement and that her failure to appear on the scheduled date and to provide a statement would constitute gross insubordination and lead to disciplinary action up to and including termination. Respondent is a member of the Broward Teacher's Union ("BTU") and was represented by Diane Watts, a field staff representative with BTU, in the investigation. Watts had contact with Kathleen Andersen, a detective with the Broward District Schools Police Department regarding scheduling the appointment and other matters with respect to Respondent's statement. At some point before Respondent was to appear and provide her statement, Andersen called Watts to give her a "heads-up" that the investigation was "going criminal"——meaning that a criminal investigation was being commenced and that criminal charges may be filed against Respondent. Watts testified, credibly, that when a matter "goes criminal," the BTU retains a lawyer to represent the member being investigated. At that point, BTU had not yet retained an attorney to represent Respondent in any investigation that may "go criminal." Under those circumstances, it is customary for the employee not to appear and provide a statement. Watts testified, credibly, that she informed Andersen that under the circumstances, Respondent would not appear as scheduled on March 11, 2013, to provide the statement. Watts understood Andersen to have agreed that, given the circumstances, Respondent was not required to appear and, in fact, she credibly testified that she believed Andersen had called her to give her a "heads-up" specifically so that she and Respondent would not make a wasted trip to appear at the location of the scheduled statement, only to find out there that the investigation had "gone criminal"——at which point, Watts would have advised Respondent not to make a statement pending BTU's retention of a lawyer to represent her. Based on her belief that she had an understanding with Andersen, Watts advised Respondent that she was not required to appear and provide a statement on March 11, 2013. Therefore——specifically at Watts' direction and advice——Respondent did not appear and provide a statement on March 11, 2013. At the final hearing, Andersen disputed that she had agreed with Watts that Respondent did not need to appear and provide a statement as directed in the Notice to Appear. Andersen testified that pursuant to Petitioner's Policy 4.9, Respondent was required to appear and provide a statement, and that she had not done so.29/ IV. Findings of Ultimate Fact Petitioner seeks to suspend Respondent without pay and to terminate her employment as a teacher on the basis of just cause, pursuant to section 1012.33, Florida Statutes. The statute defines just cause to include immorality, misconduct in office, incompetency, gross insubordination; and being convicted of or found guilty of, or entering a plea of guilty of, regardless of adjudication of guilt, any crime involving moral turpitude. Here, Petitioner charges that just cause exists, on each of these bases, to suspend Respondent without pay and terminate her employment. As more fully addressed below, Petitioner bears the burden of proof, by a preponderance of the evidence, to establish each element of each offense with which Respondent is charged. Further, whether Respondent committed the charged offenses is a question of ultimate fact to be determined by the trier of fact in the context of each alleged violation.30/ For the reasons discussed in detail above, Petitioner failed to prove, by a preponderance of the competent substantial evidence, any of the allegations in the Amended Administrative Complaint, and therefore failed to prove any of the administrative charges stated in the Amended Administrative Complaint. Petitioner asserts in Petitioner's Proposed Recommended Order that "Petitioner had a number of witnesses to testify to these various events. Respondent had none." This mischaracterizes the evidence presented in this case. Although Petitioner presented the testimony of four persons having personal knowledge of some of the incidents, for several of the allegations, Petitioner presented the testimony of only one witness who had personal knowledge of the alleged incidents, and, as discussed above, often that testimony was not credible. Even when Petitioner presented the testimony of more than one witness regarding a particular allegation, as discussed above, often that testimony was inconsistent on significant details, calling into serious question the credibility and reliability of the testimony. Also, Respondent herself testified. Her testimony was clear, precise, credible, and persuasive, and she provided consistent, logical accounts of the incidents that gave rise to the allegations in the Amended Administrative Complaint.31/ In addition to her own testimony, Respondent presented the testimony of the mother of student J.M., who credibly supported Respondent's version of the incident giving rise to one of the allegations involving her daughter. Here, the undersigned did not find the testimony of Cherelus, Yontz, Brown, or Jobes credible or persuasive on most of the matters about which they testified. As discussed in detail above, in many instances their testimony was vague, unclear, or inconsistent with other testimony or evidence. Moreover, it was abundantly clear that each of these paraprofessionals found Respondent difficult to work with because she was demanding, did not tolerate lax performance, and consistently reminded them that as teacher, she was in charge of the management of her classroom. It was apparent that each of them resented her frequent assertion of authority over them. Each of them had ample motive to be untruthful or to exaggerate regarding certain events——such as those involving J.M. being placed in the restroom, C.R. and Respondent falling on the floor, and T.P. being fed by Respondent. In other instances——such as reclining M.P. in the Rifton chair or directing M.M. to retrieve her snack from the trash can——it is plausible to infer that the paraprofessionals misunderstood Respondent's actions and judged to be inappropriate, when, in fact, they were appropriate under the circumstances. Another factor militating against the paraprofessionals' credibility is that each of them was a mandatory child abuse reporter under Florida law, each of them knew that, and each understood her legal duty. Nonetheless, most of the incidents alleged in the Amended Administrative Complaint were not reported until sometime after the incident is alleged to have occurred. In particular, Brown and Jobes first reported that Respondent had engaged in abusive behavior only after she had taken measures to address their classroom performance issues, including her requesting a meeting with the principal and holding her own meeting aimed at, again, addressing their unacceptable behavior and performance. Petitioner focuses on a statement in Respondent's January 23, 2013, email thanking Brown and Jobes for their efforts as indicating that up to that point, Respondent and the paraprofessionals enjoyed a smooth working relationship and that Respondent did not have any problems with their performance, and, in fact, was pleased with their performance. However, this position is contradicted by the strong evidence showing otherwise. Respondent's emails to the school administration dated December 1, 2012, and January 9, 10, and 23, 2013, particularly speak to the ongoing difficulty she was having with both paraprofessionals, even before they submitted statements alleging that she had abused students. Further, the testimony by Brown, Jobes, and Respondent shows that the relationship between Respondent and the paraprofessionals was not a smooth one. In sum, the evidence establishes that the paraprofessionals were not reliable witnesses, and their testimony was neither credible nor persuasive. Conversely, Respondent's testimony was credible and persuasive. Accordingly, Petitioner failed to prove, by a preponderance of the competent substantial evidence, that Respondent engaged in conduct during the 2011-2012 and 2012-2013 school years that violated Department of Education rules and school board policies, and, thus, constituted just cause to suspend Respondent without pay and terminate her employment. Petitioner also has charged Respondent with gross insubordination for failure to appear and provide a statement to the Broward District Schools Police Department on March 11, 2013. As discussed above, the credible, persuasive evidence establishes that Respondent did not appear and provide a statement to the Broward Schools Police Department specificially because she had been directed and advised by her BTU representative not to do so. Further, even if Watts did not, in fact, have an understanding with Andersen that Respondent would not provide a statement, it is undisputed that Watts told Respondent that such an understanding existed so that she did not need to appear and provide a statement. Thus, the credible, persuasive evidence establishes that Respondent did not intentionally refuse to appear and provide a statement, but, instead, simply and reasonably followed the advice and direction of her BTU representative, who had specifically told her not to appear and provide a statement. Under these circumstances, it cannot be inferred that Respondent intentionally refused to obey a direct order, reasonable in nature. Accordingly, the credible, persuasive evidence establishes that Respondent did not commit gross insubordination. Based on the foregoing, it is determined that Petitioner failed to meet its burden to prove, by a preponderance of the competent substantial evidence, that Respondent engaged in conduct, alleged in the Amended Administrative Complaint, that violates Department of Education rules and school board policies. Accordingly, Petitioner did not prove that just cause exists to suspend Respondent without pay and terminate her employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Broward County School Board, enter a final order dismissing the Amended Administrative Complaint against Respondent; reinstating Respondent's employment as a teacher; and awarding Respondent back pay for the period of her suspension, less the amount of back pay that would be owed for the period commencing on November 6, 2013, and ending on January 23, 2014.42/ DONE AND ENTERED this 22nd day of October, 2015, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 October, 2015.
The Issue The issue presented is whether Respondent's employment by the School Board should be terminated.
Findings Of Fact At all times material hereto, Respondent Robert F. Ward was employed by the School Board as a teacher and was assigned to Richmond Heights Middle School, pursuant to a professional service contract. Willie Harris was the principal of Richmond Heights from 1988 to 1995. During those years, Harris gave Respondent verbal directives to follow School Board rules concerning the discipline of students. As punishment, Respondent inappropriately used excessive writing and standing and inappropriately placed students outside the classroom. Each time Respondent was warned that he was violating School Board rules in his methods of disciplining students, he would stop using those methods for a while but would then return to those methods and be warned again. Harris found it necessary to counsel Respondent every year. Principal Harris learned that Respondent responded better to male authority figures than to female authority figures. He, therefore, gave Respondent directives himself or through male administrators. Mona Bethel Jackson became the principal of Richmond Heights in July 1997. On October 2, 1998, Denise Franze, a parent, submitted a written complaint to Principal Jackson concerning Respondent's behavior at the school's Open House because Respondent appeared to be a very angry person. He spent the entire time that he met with her and other parents complaining about the school. She requested that her child be transferred out of Respondent's class. Respondent wrote her a very insulting, unprofessional response letter. His letter did not reflect credit upon himself or the school system. On November 17, 1998, Respondent left his class unsupervised, and two students became involved in a fight. Respondent was directed to properly supervise his class and was directed not to place any students outside his class unsupervised. At a faculty meeting on January 13, 1999, Principal Jackson reviewed School Board policies prohibiting inappropriate language/teacher conduct. At a faculty meeting on February 16, 1999, Jackson reviewed School Board procedures regarding the supervision of students. On March 26, 1999, student D. L. was being disruptive. Respondent told her to go outside the classroom. Because it was raining, D. L. refused to leave. Respondent again ordered her to go outside and called her "dumb." He then left his class unsupervised to deliver a memorandum regarding D. L.'s behavior to the school administrators. An assistant principal directed Respondent not to leave his class unsupervised. On March 30, 1999, Respondent was inside his newly- assigned portable classroom, by himself, writing on the board. An assistant principal asked Respondent where his students were, and Respondent answered that he did not know. Some of Respondent's students were found outside the portable classroom unsupervised, and others were found in the auditorium also unsupervised. Also on March 30, Respondent used the words "hell" and "damn" while aggressively reprimanding D. L., shouting at her, and shaking his fingers in her face. Respondent was reminded that School Board rules prohibit unseemly conduct and the use of abusive and/or profane language in the presence of students. On April 1, 1999, a conference-for-the-record was conducted with Respondent to address his failure to supervise his class, his inappropriate reprimand of a student, his lack of emergency lesson plans, and related matters. As a result of the conference, Respondent was rated unsatisfactory in professional responsibilities and was provided with a prescription to address his deficiencies. The prescription was to be completed by June 16, 1999. If done properly, the prescription should have taken no more than three weeks to complete. At the conference, Respondent was also directed to follow school procedures for the removal of disruptive students from class, to not leave students unsupervised at any time, to not expose students to unnecessary embarrassment or disparagement, to prepare lesson plans each day, to replenish emergency lesson plans, and to exercise the best professional judgment and integrity. He was warned that failure to comply with these directives would be considered insubordination and could lead to further disciplinary action. Respondent was given a copy of the School Board's employee conduct rule and the Code of Ethics of the Education Profession in Florida. On April 22, 1999, Respondent failed to report to the media center at the conclusion of a teacher workshop as directed in writing prior to the workshop and, again, at the beginning of the workshop. Respondent's annual evaluation for the 1998/99 school year was unsatisfactory due to Respondent's deficiencies in the area of professional responsibility. On June 16, 1999, Respondent's prescriptive activities were deemed unacceptable because they were careless, sarcastic, and unprofessional. Respondent admits that the prescriptive work he turned in to Principal Jackson was inappropriate. Respondent did not take his prescriptive activities seriously and did not attempt to benefit from them. On June 18, Principal Jackson directed Respondent to re-do his prescriptive activities and turn them in by October 1, 1999. Because Respondent ended the school year in an unacceptable status, his salary was frozen and he was precluded from summer school employment. Respondent assigned two students to detentions to be served before school on September 15 and 16, 1999. The students arrived at approximately 7:15 a.m. both days. At 8:00 a.m., Respondent had not yet arrived to supervise them on either day. When the bell rang at 9:00 a.m. to begin the school day, Respondent was still not there. One child's grandmother, who was concerned about the children not being supervised, complained to the school administrators. September 20, 1999, was a teacher planning day. Respondent was not present during his assigned work hours, 8:00 a.m. to 3:30 p.m. An "all call" for him was made over the public address system at 9:28 a.m., which went throughout the school. Respondent did not respond. An assistant principal checked his classroom, but Respondent was not there. She was unable to locate his car in the parking lot, and he had not signed the attendance roster. When Respondent arrived at approximately 10:00 a.m., he told Principal Jackson that he was not in the building because he had stopped at Publix. At the final hearing, Respondent testified that he was probably in the wood shop working on a personal project during his work hours when the "all call" announcement was made for him. Respondent failed to complete his prescription by the October 1, 1999, deadline. A conference-for-the-record was held on that date to address parental complaints about Respondent. The complaints involved the unsupervised detentions, Respondent's requiring students to stand for almost two hours as punishment, and Respondent's requiring students to write essays as punishment. Parents also complained that Respondent punished the entire class when only one student misbehaved. Respondent admitted that he administered those punishments. Respondent was directed to refrain from having students write essays for punishment, to refrain from having students stand for punishment, to refrain from assigning detentions when students would not be supervised by Respondent, to not expose students to unnecessary embarrassment or disparagement, and to follow all directives previously given to him. Since Respondent was already on prescription and had failed to complete the prescriptive activities by the October 1 deadline, Principal Jackson directed Respondent to complete his prescription by January 26, 2000. Respondent was warned that failure to comply with the directives would be considered insubordination and could lead to further disciplinary action. He was again provided with a copy of the School Board's employee conduct rule. On October 13, 1999, a conference was held with Respondent to discuss complaints from three parents. The complaints were that Respondent did not give clear directions to the students, that he had humiliated a student, that he required students to write essays as punishment, and that he was assigning math as punishment to his social studies students. The parents complained that Respondent was using academics as punishment. Principal Jackson directed him to stop humiliating students, to stop intimidating students, and to provide in-class assistance. She also directed Respondent to stop assigning math and requiring students to write repetitive "lines" as punishment. She directed Respondent to correct his grading practices and to not retaliate against any students. Respondent was given copies of the letters from the parents. The math that was assigned by Respondent was not an appropriate assignment for a sixth-grade geography class. The interim progress reports Respondent gave to his students corroborate that Respondent was using essays as punishment. After the conference, Respondent informed secretarial staff that he would be absent the next day, which was the day of the school's open house. Teachers have a contractual requirement to attend the school's open house. Respondent was not absent as a result of an illness or an emergency; rather, he simply decided to take a personal holiday on that day. On October 19, 1999, Respondent responded to a parental complaint with a letter that was unprofessional, demeaning, and insulting. His letter did not reflect credit upon himself or the school system. On October 29, 1999, Respondent was directed to report for a conference-for-the-record in the School Board's Office of Professional Standards on November 4, 1999. On November 2, 1999, Respondent attended a round-table discussion with a counselor, the parents of a student, the student, and all of that student's teachers. Respondent was abrasive to the student, loud, and intimidating. The student, who was communicative and comfortable before Respondent arrived at the meeting, was uncomfortable and would not speak while Respondent was present. After Respondent arrived, the student "clammed up," and his eyes "teared up." The next day, the student's father brought a letter to school reciting what had happened at the meeting and requesting that the student be transferred out of Respondent's class. The father and Respondent encountered each other in the school office, and Respondent invited the father to his classroom. While there, Respondent asked the father which grade the father wanted him to change. The father was surprised at Respondent's offer and explained to Respondent that he only wanted his son to get the grades his son deserved. On November 4, 1999, Respondent requested to leave school for a dental emergency. Since his conference-for-the- record was scheduled for that day, an assistant principal directed Respondent to submit documentation from his dentist to her or to the principal's secretary. Respondent failed to follow this directive in a timely fashion. Respondent was subsequently directed to comply with all directives given by his immediate supervisors. At Respondent's request, the conference-for-the-record was re-scheduled for November 9, and Respondent was directed to attend. Respondent did not attend the November 9 conference, which was scheduled to discuss his non-compliance with site directives, his performance assessment, parental complaints, and student complaints. As a result of the conference-for-the- record, which consisted of a review of Respondent's file, Respondent was directed to comply with the Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida, to provide an educational environment free from harassment and intimidation for all students, to not intimidate staff and faculty members, to use sound professional judgment at all times, and to use specific grading practices. He was warned that non-compliance with these directives could lead to further disciplinary measures. Respondent was provided with another copy of the School Board's employee conduct rule, the Code of Ethics, and the School Board's violence in the workplace rule. On December 15, 1999, a conference-for-the-record was held with Respondent to review his performance assessments and future employment status. Respondent was reminded that he was in his second year of unacceptable performance status, which if not remedied, could lead to termination of his employment. He was also directed to comply with the directives previously given to him by the Office of Professional Standards. He was warned that non-compliance with the directives could result in disciplinary measures. Respondent failed to comply with his prescriptive activities by January 26, 2000. On February 7, 2000, at 3:39 p.m., Principal Jackson directed Respondent to submit his prescriptive activities directly to her within 24 hours. This directive was reasonable since the Principal had repeatedly directed Respondent to complete his prescriptive activities since April 1999. Respondent refused to sign that he had received a copy of the memorandum memorializing this directive even after being directed to sign it. On February 8 Respondent did not come to work. Another teacher gave Respondent's prescriptive activities to the principal's secretary after 5:00 p.m. The principal did not accept the activities because neither of her directives had been followed: the prescriptive activities were not given directly to her, and they were turned in late. On February 17, 2000, a conference-for-the-record was held with Respondent to address his non-compliance with prescriptive deadlines and to review his record and his future employment status. Respondent was reminded that if his deficiencies were not remedied, he could lose his job. Respondent was told that his failure to comply with the directives concerning his prescription was considered gross insubordination. Respondent was directed to place his prescriptive activities in the principal's hand by 12:30 p.m. the next day, February 18. He was warned that non-compliance would result in further disciplinary action. Respondent was absent from work on February 18, 2000, and did not attempt to give the documents to his principal until February 24 at 3:30 p.m. His principal refused to accept the package because it was so overdue. On February 28, 2000, Respondent was directed to report to a conference-for-the-record at the Office of Professional Standards at 9:00 a.m. on March 14, 2000. On March 13, 2000, Respondent was accused of battery and administering physically-demanding punishments to students. The investigation revealed that Respondent was still using inappropriate punishment and profanity with his students. The incidents described in paragraphs numbered 40-48 below were discovered. On March 2, 2000, Respondent called A. W. a "dummy," told him to "shut up," and ordered him to pull a heavy cylinder across the physical education field. The cylinder is a piece of equipment that is pulled by a tractor and used to flatten pavement. A. W. tried but could not comply. He was crying when he went to the school office, complaining that his hands hurt. Respondent ordered other students to pull or push the cylinder as punishment. Respondent also ordered students to push volleyball poles, or standards, which have tires filled with cement at the bottom. At the final hearing, Respondent admitted to administering this punishment one time. Respondent also ordered students to walk or run on the physical education field. At the final hearing, Respondent admitted to ordering students to walk to the far fence. Respondent ordered students to do "push-ups." At the final hearing, Respondent admitted he used "push-ups" as punishment at the election of the student in lieu of other discipline. Respondent ordered his students to move rocks located around his portable classroom. Respondent called the students derogatory names, such as "stupid," "dumb, dumber, and dumbest," and "imbecile." He told them to "shut up." In speaking with a security monitor, Respondent referred to one of his students as "a piece of shit." Respondent required his students to write essays and repetitive "lines" as punishment, which he admitted at the final hearing. He made his students stand for lengthy periods of time as punishment. At the final hearing, Respondent asserted that he only made them stand for 30-45 minutes. Respondent claims he was sending his students to "time-out" on the physical education field. Even if true, sending the students to the physical education field is not an appropriate time-out. It is humiliating and demeaning to the students, the students were not properly supervised, the students were not being educated, and the students were at risk of injury. The procedure for disciplining students at Richmond Heights was to counsel the student after the first violation, make contact with the parents after the second violation, and write a referral to the administrators after the third time. The School Board does not permit the physical punishment of students. On March 14, 2000, Respondent was two hours late for the scheduled conference-for-the-record. By the time he arrived, the other participants had left. He was directed to report for a re-scheduled conference at the Office of Professional Standards on March 27, 2000. On March 27, 2000, a conference-for-the-record was held with Respondent to address his non-compliance with site directives regarding prescription deadlines, student discipline, violation of the Code of Ethics and of professional responsibilities, violation of School Board rules, and his future employment status. Respondent was directed to comply with all previously-issued directives, to refrain from retaliating against students and staff, to use sound professional judgment at all times, and to comply with all School Board rules, the Code of Ethics, and the Principles of Professional Conduct for the Education Profession in Florida. On May 15, 2000, Principal Jackson observed Respondent outside of his classroom, with his back to his class, talking on the telephone. The class was noisy. No one was supervising his students. He was again directed not to leave his classes unsupervised. On May 22, 2000, a conference-for-the-record was held with Respondent to address the pending action by the School Board to take dismissal action at its meeting of June 21, 2000. On June 21, the School Board suspended Respondent without pay and initiated this dismissal proceeding against him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the allegations contained in the Notice of Specific Charges, affirming Respondent's suspension without pay, and dismissing Respondent from his employment with the School Board effective June 21, 2000. DONE AND ENTERED this 18th day of May, 2001, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 18th day of May, 2001. COPIES FURNISHED: Stewart Lee Karlin, Esquire 400 Southeast Eighth Street Fort Lauderdale, Florida 33316 Madelyn P. Schere, Esquire School Board of Miami-Dade County 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Roger C. Cuevas, Superintendent School Board of Miami-Dade County 1450 Northeast Second Avenue Suite 912 Miami, Florida 33132 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue The issue for determination is whether Respondent had just cause to suspend Petitioner for 30 workdays, without pay.
Findings Of Fact No dispute exists that the School Board is a constitutional entity charged with the duty to operate, control and supervise the public schools within the school district of Miami-Dade County, Florida. No dispute exists that, at all times material hereto, Mr. Boundy was employed full-time with the School Board as a teacher and held a professional service contract. Mr. Boundy had been a teacher with the School Board for 15 years. In his professional career, Mr. Boundy had been a teacher, then had practiced law in the State of Florida for 15 years, and had become a teacher again. No dispute exists that, at all times material hereto, Mr. Boundy was assigned to Nautilus Middle School, hereinafter Nautilus, in the Miami-Dade County’s school district. He was assigned to teach science. On September 30, 2005, Mr. Boundy was teaching his science class at Nautilus. He was having problems with one particular student, D. M., who was approximately 14 years of age.1 D. M. had just returned to class from being on indoor suspension, for cutting class. Earlier that day, after having returned from indoor suspension, D. M. had been involved in a physical altercation, a “minor”2 fight, and Mr. Boundy counseled him. At lunch time, another teacher broke-up a fight between D. M. and another student; Mr. Boundy counseled him again. Mr. Boundy determined that the first fight did “not” warrant a “write-up” and that the second fight perhaps “may” have warranted a write-up but that he decided not to do so.3 After lunch, while in Mr. Boundy’s class, D. M. had another fight with a student, which was D. M.’s third fight that day. Mr. Boundy has a policy in his class that, “after three strikes, you’re out,”4 therefore, instead of counseling D. M. again, Mr. Boundy determined that a “write-up” was warranted and that D. M. had to leave his class. Mr. Boundy told D. M. to leave the class and go to the office. Before leaving the class, D. M. began spraying perfume and then walked out into the hallway but did not go the office. Mr. Boundy observed D. M. still outside in the hallway. When Mr. Boundy walked out of his class into the hallway, he observed D. M spraying perfume in the hallway. Mr. Boundy asked D. M. to give the perfume to him (Mr. Boundy). D. M. raised his hand and brought it down as if to strike Mr. Boundy at which time Mr. Boundy grabbed D. M.’s hand and pulled it behind his (D. M.’s) back and told D. M. that he (D. M.) needed to go to the office. The hallway outside of Mr. Boundy’s classroom is equipped with a surveillance camera, which recorded the interaction between Mr. Boundy and D. M. after the contact described above. The surveillance camera does not record as a regular video camera but records as a series of snapshots or still pictures approximately every second, with gaps in between the snapshots; therefore, the surveillance camera fails to reveal completely what happens within a segment of time.5 As a result of the gaps in between snapshots of the surveillance camera, the testimony of witnesses is crucial in determining what happened. While in the hallway, the surveillance camera shows Mr. Boundy’s back to it and D. M. directly in front of him in such close proximity as if their bodies were touching. Mr. Boundy testified that he took D. M. by the arms and was directing him toward the doors leading to the office. Mr. Boundy’s testimony is found to be credible. Subsequently, while also in the hallway, the surveillance camera, in several snapshots, shows Mr. Boundy and D. M. separated, with D. M. facing Mr. Boundy, who testified that D. M. wrestled away from him. The surveillance camera also shows, in one snapshot, Mr. Boundy’s left hand on D. M.’s right shoulder and, in another snapshot, D. M. moving back toward the classroom. Mr. Boundy testified that D. M. was going back to the classroom without his (Mr. Boundy’s) permission. D. M. admitted that he was returning to the classroom without Mr. Boundy’s permission. Mr. Boundy’s testimony is found credible. Further snapshots by the surveillance camera show Mr. Boundy grabbing D. M. by the arms and shoulder area, when D. M. gets close to the classroom, and pushing D. M. down the hallway; and shows some students observing the conduct in the hallway. Also, the snapshots by the surveillance camera show Mr. Boundy and D. M. exiting the exit doors at the stairwell, with Mr. Boundy continuing to hold D. M.’s arms. After they go through the exit doors, the snapshots by the surveillance camera show Mr. Boundy releasing D. M. and watching D. M. go down the stairs. Mr. Boundy testified that he told D. M. to go to the office. D. M. does not deny that Mr. Boundy told him to go to the office at that point. D. M. went to the main office. The school counselor, Amy Magney, talked with D. M., who was loud and appeared to be agitated. Ms. Magney observed marks on D. M.’s arms and the back of his neck, which she described as “very red.” D. M. informed Ms. Magney that Mr. Boundy’s forceful touching had caused the red marks. Ms. Magney took D. M. to the assistant principal, Ms. Gonsky, who observed marks on D. M.’s arms, which were red, and marks on D. M.’s the neck, shoulder area, which Ms. Gonsky described as a “little red.” Mr. Boundy admits, and at no time did he deny, that he grabbed D. M. by the arms and shoulder area. For example, at the Conference for the Record (CFR) held on November 15, 2005, Mr. Boundy admitted that he held D. M.’s arms by the back directing him towards the stairs. A detective of the School Board’s police department reviewed the snapshots by the surveillance camera. From the detective’s observation, he determined that Mr. Boundy did not take any malicious action against D. M.; that D. M. was resisting Mr. Boundy; that, at one point, D. M. made an aggressive action against Mr. Boundy; and that Mr. Boundy was “directing, escorting” D. M. through the exit doors. D. M. testified that Mr. Boundy also grabbed him around the neck. Mr. Boundy denies that he grabbed or touched D. M.’s neck but admits that he grabbed D. M. at the shoulder area. V. V., a student in Mr. Boundy’s class, testified that Mr. Boundy grabbed D. M. by the neck, pushing D. M. out of the classroom. Also, the Conference for the Record (CFR) held on November 15, 2005, indicates that the same student stated that, while Mr. Boundy and D. M. were in the hallway, D. M. swung at Mr. Boundy and struck him in the chest. Mr. Boundy denies that he was struck by D. M. and D. M. denies that he struck Mr. Boundy. V. V.’s testimony is not found to be credible. The snapshots by the surveillance camera do not show Mr. Boundy grabbing or touching D. M.’s neck. Ms. Magney was the first person in the school's office to observe the marks, and when she saw the marks on the back of D. M.’s “neck,” the marks were “very red”; however, when Ms. Gonsky, the second person in the school's office to observe the marks, the marks around the “neck, shoulder area” were a “little red.” Further, D. M. had been in two physical altercations before the incident with Mr. Boundy and the last altercation had occurred at lunch time. Ms. Gonsky’s account of the location of the red marks is not inconsistent with Mr. Boundy’s testimony, regarding the shoulder area. Additionally, when Ms. Gonsky observed the marks at the neck, shoulder area, they were a little red, not red or very red. The undersigned finds Mr. Boundy’s and Ms. Gonsky’s testimony and account more credible regarding the marks being at the shoulder area, not the neck. Furthermore, the undersigned finds that Mr. Boundy grabbed D. M. at the shoulder area and that the marks at the shoulder area were caused by Mr. Boundy and were a little red. No dispute exists that D. M. was being disruptive. Mr. Boundy had counseled D. M. on two occasions that same day for fighting. D. M. had committed a third strike by fighting again in Mr. Boundy's class, and according to Mr. Boundy's classroom policy of which the students were aware, the third strike meant that the student was leaving the classroom and going to the school's office. Mr. Boundy was going to write-up D. M. for the incident but did not do so. Before he could write-up D. M., Mr. Boundy was summoned to the school's office after the administrators in the office observed the marks and heard D. M.'s version of the incident. At the beginning of each school year, the principal of Nautilus, Caridad Figueredo, has an opening meeting, consisting of two days. At the opening meeting, among other things, Ms. Figueredo notifies the Nautilus' faculty that they must comply with the rules of the School Board and the Code of Ethics, and some of the rules are reviewed with the faculty. Further, at the opening meeting, Nautilus' faculty is provided a copy of the Faculty Handbook. Nautilus' faculty signs an acknowledgement that they understand that they are responsible for becoming knowledgeable about the rules and adhering to them. Mr. Boundy signed an acknowledgement and received a copy of the Faculty Handbook. Regarding physical contact, Ms. Figueredo indicates at the opening meeting that the School Board prohibits using physical contact to maintain discipline or to affect a student’s behavior. As a result, at the opening meeting, she informs Nautilus' faculty, and stresses to them, that they should not use physical force or, generally, to come in physical contact with the students. However, as to coming into physical contact with students, an exception is recognized and allowed in the touching of a student by a teacher if the teacher has a rapport with the student and the student has no objection to or approves of the teacher just tapping him or her. That exception is not applicable in the instant case. Nautilus had a 2005-2006 Faculty and Staff Handbook, hereinafter Handbook. The Handbook contained a Progressive Discipline Plan, hereinafter Plan, for teachers to use when they encounter disruptive students. The Plan contained several steps of action, which provided in pertinent part: Step I: Teacher The teacher may handle discipline in the following ways (list not inclusive): Move close to the student – use verbal and/or non-verbal techniques to correct behavior problems * * * Speak with the student on a one-to-one basis * * * Contact parent (verbal and/or written) Hold parent or student/parent conference PLEASE NOTE: Parent contact is REQUIRED before a referral can be made to the administration. Only disciplinary problems involving infractions of the Code of Student Conduct Group III or higher (fighting . . .) may be directly referred to the administration using a case management form. * * * Step IV: Referring Students For Administrative Action Students should be sent directly to the appropriate administrator only when critical incidents occur such as fighting . . . Please use your emergency button to request for[sic] assistance. If a student becomes disruptive and you request removal the administrator will take the appropriate disciplinary action deemed necessary according to the Code of Student Conduct and provide teachers immediate feedback. (emphasis in original) The Handbook also contained a section entitled “Things To Remember When Dealing With A Student,” which provided in pertinent part: 4. DON’T: Snatch things away from students. Become confrontational. Physically block an exit. Argue or get on the student’s level. Shout or put them down. Disrespect them. * * * 6. Use common sense regarding touching students: Be aware that affectionate gestures may be misconstrued. Avoid physical contact of any kind in situations involving you and student (i.e. where there are no witnesses). Additionally, the Handbook contained a section entitled “How to Avoid Legal Complications as an Educator,” which provided in pertinent part: Respect the space of others. Do not place your hands on students. * * * Know the laws, School Board policies and school rules, and follow them. * * * Corporal punishment is prohibited in Miami- Dade County Public Schools. Treat each student with respect. Establish a policy regarding discipline. Distribute the policy to students and parents at the beginning of the year or when the students begin your class. The School Board has established “Procedures for Promoting and Maintaining a Safe Learning Environment,” which provides in pertinent part: Purpose of the Procedures for Promoting and Maintaining a Safe Learning Environment This document, Procedures for Promoting and Maintaining a Safe Learning Environment, is incorporated by reference and is a part of School Board Rule 6Gx13-5D-1.08, Maintenance of Appropriate Student Behavior. It has been prepared to assist school administrators in promoting and maintaining a safe learning environment in the public schools of Miami-Dade County, Florida. These procedures and directions are set forth to guide and promote orderly and productive participation of students in school life and support the achievement of Florida's education goal for school safety and environment, Section 229.591(3)(e), F.S. Student actions and behaviors that can be defined as disruptive and/or threatening must be dealt with according to Florida Statutes, and Florida Board of Education and Miami-Dade County School Board Rules. This manual contains information necessary to assist school administrators in making the most appropriate decisions and taking warranted action in promoting maintaining a safe learning environment. * * * Administrators, counselors, and appropriate staff are expected to become familiar with this document, to review it periodically, and to utilize it according to its inherent purpose -- promoting and maintaining a safe learning environment in the public schools of Miami-Dade County, Florida. As the administration and staff at each school site address the requirements of current Miami- Dade County Public Schools (M-DCPS) guidelines, they should also review modifications of requirements related to school discipline and school safety as established by the Florida Legislature. * * * GUIDELINE #39: REMOVAL OF STUDENT FROM CLASS AND POSSIBLE EXCLUSION OF THE STUDENT BY THE TEACHER CURRENT LAW AND/OR PRACTICE: Florida Statutes and Miami-Dade County School Board Rules allow for teachers to remove a disruptive student from class if the behavior of the student has an adverse effect on the teacher's ability to communicate effectively with students or the ability of the students to learn. Section 232.271, F.S., provides for the right of the teacher to refuse to accept a student back to class who has been removed for disruptive behavior which adversely affects the teacher's ability to communicate effectively with the students or with the ability of the students to learn. Provisions for Exceptional Students: The Placement Review Committee shall refer to the IEP team all exclusion requests for students from exceptional education classes. Temporary Removal from Class 1. The teacher shall have the authority to remove a seriously disruptive student from the classroom. In such cases, the principal or designee shall be notified immediately and the teacher shall be entitled to receive, prior to the student's return to class, a report describing corrective action(s) taken. Guidelines for implementing this provision shall be developed by each Educational Excellence School Advisory Council (EESAC). Code of Student Conduct Infractions The principal or designee will follow the Code of Student Conduct on all disciplinary matters. Only those disciplinary problems which disrupt a teacher's instruction, when the teacher requests the student's permanent removal from class, shall be referred to the Placement Review Committee, if the request is not resolved by the principal. A CFR was held on November 15, 2005. A Summary of the CFR was prepared and provides in pertinent part: [Mr. Boundy was asked]: 'Did you touch the student?' [Mr. Boundy] replied: 'Yes and it will never happen again.' * * * The following directives are herein delineated which were issued to you [Mr. Boundy] during the conference: Adhere to all M-DCPS [Miami-Dade County Public Schools] rules and regulations at all times, specifically School Board Rules [sic] 6Gx13-4A-1.21, Responsibilities and Duties. Adhere to The Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida. Cease and desist from utilizing physical means to effect the behavior of students. * * * During the conference, you [Mr. Boundy] were directed to comply with and were provided copies of the following School Board Rules: 6Gx13-4A-1.21, Responsibilities and Duties 6Gx13-4A-1.213, The Code of Ethics You [Mr. Boundy] were advised of the high esteem in which teachers are held and of the District's [School Board's] concern for any behavior, which adversely affects this level of professionalism. You [Mr. Boundy] were reminded of the prime directive to maintain a safe learning environment for all students and that your actions violated this directive. . . . Further, attached to the Summary of the CFR was "Guideline #9: Corporal Punishment, Current Law and/or Practice, from the Procedures for Promoting and Maintaining a Safe Learning Environment," which provides in pertinent part: GUIDELINE #9: CORPORAL PUNISHMENT CURRENT LAW AND/OR PRACTICE: CORPORAL PUNISHMENT IS PROHIBITED IN MIAMI-DADE COUNTY PUBLIC SCHOOLS. . . . Corporal punishment is physical force or physical contact applied to the body as punishment. Section 228.041(27), F.S., defines corporal punishment as: . . . the moderate use of physical force or physical contact by a teacher or principal as may be necessary to maintain discipline or to enforce school rule. However, the term 'corporal punishment' does not include the use of such reasonable force by a teacher or principal as may be necessary for self-protection or to protect other students from disruptive students. The use of physical restraint techniques in accordance with the Miami-Dade County School Board Rule 6Gx13-6A-1.331, Procedures for Providing Special Education for Exceptional Students and Article VIII of the Contract Between Miami-Dade County Public Schools and the United Teachers of Dade is not corporal punishment. Prior to Mr. Boundy’s going into the hallway, to confront D. M., alternative avenues were available to Mr. Boundy for sending D. M. to the school's office without confronting him in the hallway. Nautilus has a protocol that, whenever a teacher is unable to control a disruptive student by using classroom management techniques, the teacher can press a security button, located in the classroom, and a security monitor or an administrator will immediately come to the classroom. The security monitor or administrator will assess the situation and remove the disruptive student. Mr. Boundy failed to use this established protocol. The undersigned does not find credible the testimony given on alternative methods of dealing with D. M., as a disruptive student, in terms of in-school suspension, student mediation, conflict resolution, parent involvement, alternative education, suspension, and expulsion as being applicable to the instant case. These alternatives are available after the student is removed from the classroom to the school's office; they fail to address the immediate removal of the physical presence of a disruptive student from the classroom. The exception to corporal punishment found at Guideline Nos. 9 and 39, regarding the use of physical restraint techniques for situations involving Exceptional Student Education (ESE), is not applicable to the instant case. Mr. Boundy's class was not an ESE class, and D. M. was not an ESE student. Also, the exception to corporal punishment found at Guideline No. 9, regarding situations to protect other students, is not applicable to the instant case. None of the other students in Mr. Boundy's class were in harm's way or needed protection in the hallway outside Mr. Boundy's classroom. However, the exception to corporal punishment in a situation for self-protection, i.e., the protection of Mr. Boundy from D. M., was applicable in the instant case. When D. M. raised his hand and brought it down as if to strike Mr. Boundy, Mr. Boundy grabbed D. M.'s arms and put his (D. M.'s) arms behind his back; at that instant, Mr. Boundy was in need of self-protection and he (Mr. Boundy) acted appropriately. But, the evidence fails to demonstrate that, after Mr. Boundy prevented D. M. from striking him, Mr. Boundy continued to be in need of self-protection. Self-protection failed to continue to exist and failed to exist during the time that Mr. Boundy was directing/escorting D. M. down the hall to the exit doors. The Administrative Director of the School Board's Office of Professional Standards, Gretchen Williams, testified that Mr. Boundy's use of physical contact in the handling of D. M. in the hallway and that the presence of red marks on D. M., exemplified excessive force, which rendered Mr. Boundy's action as a violent act. Further, she testified that Mr. Boundy's conduct was corporal punishment; that his violent act constituted unseemly conduct; and that his violent act was contrary to the School Board's prime directive to maintain a safe learning environment, which constituted unseemly conduct and was conduct unbecoming a School Board employee. Ms. Williams' testimony is found to be credible. Also, the School Board's Administrative Director, Region II, DanySu Pritchett testified that Mr. Boundy's physical force constituted violence in the workplace; and that he failed to maintain the respect and confidence of the student and the value of worth and dignity of the student through the use of physical force. Further, she testified that the failure to use an alternative method of removal by using the emergency call button was poor judgment and constituted conduct unbecoming a School Board employee. Ms. Pritchett's testimony is found to be credible. Additionally, Ms. Figueredo, testified that Mr. Boundy subjected D. M. to unnecessary embarrassment by using physical force in the hallway in front of D. M.'s classmates while Mr. Boundy was directing/escorting D. M. down the hall. Further, Ms. Figueredo testified that, during the hallway incident, Mr. Boundy engaged in corporal punishment, conduct unbecoming an employee of the School Board, unseemly conduct, and poor judgment, and was not a good role model to the students and staff. Ms. Figueredo's testimony is found to be credible. Also, Ms. Figueredo testified that Mr. Boundy's use of poor judgment and failure to use established protocol and to exemplify a good role model to the students and the staff caused Mr. Boundy to lose his effectiveness. Ms. Figueredo's testimony is found to be credible. Pending the investigation of the incident by the School Board, Mr. Boundy was removed from the classroom. He was placed on alternative assignment, i.e., at his home. Due to Mr. Boundy's failure to follow established protocol at Nautilus for the removal of D. M. from the classroom, to the physical force used by Mr. Boundy, to the marks that were a little red and were caused by the physical force, and to the seriousness of the incident, by memorandum dated November 21, 2005, Ms. Figueredo recommended a 30-day suspension for violation of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties. Ms. Pritchett agreed with the recommendation. By memorandum dated December 1, 2005, the School Board's Region Center II concurred in the recommendation. On February 28, 2006, a meeting was held with Mr. Boundy to address the forthcoming School Board's consideration of the recommendation for a 30-day suspension without pay. Those in attendance included Mr. Boundy, Ms. Williams, Ms. Pritchett, Ms. Figueredo, and a UTD representative, Mr. Molnar. The determination was that Mr. Boundy would be recommended for a 30-day suspension without pay for just cause, including but not limited to "deficient performance of job responsibilities; conduct unbecoming a School Board employee; and violation of State Board Rule 6B-1.001, Code of Ethics of the Education Profession in Florida; and School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties; and 6Gx13-5D-1.07, Corporal Punishment--Prohibited." By letter dated March 1, 2006, Mr. Boundy was notified by the School Board's Assistant Superintendent, among other things, that the School Board's Superintendent would be recommending, at the School Board's meeting scheduled for March 15, 2006, the 30-day suspension without pay for just cause, indicating the violations aforementioned. By letter dated March 16, 2006, the School Board's Assistant Superintendent notified Mr. Boundy, among other things, that the School Board had approved the recommendation and that he was not to report to work at Nautilus from March 16, 2006 through April 26, 2006.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order finding that just cause existed for the 30-day suspension, without pay, from employment of Robert Boundy. DONE AND ENTERED this 30th day of April 2007, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2007.
