The Issue The issue for determination is whether Respondent had just cause to suspend Petitioner for 30 workdays, without pay.
Findings Of Fact No dispute exists that the School Board is a constitutional entity charged with the duty to operate, control and supervise the public schools within the school district of Miami-Dade County, Florida. No dispute exists that, at all times material hereto, Mr. Boundy was employed full-time with the School Board as a teacher and held a professional service contract. Mr. Boundy had been a teacher with the School Board for 15 years. In his professional career, Mr. Boundy had been a teacher, then had practiced law in the State of Florida for 15 years, and had become a teacher again. No dispute exists that, at all times material hereto, Mr. Boundy was assigned to Nautilus Middle School, hereinafter Nautilus, in the Miami-Dade County’s school district. He was assigned to teach science. On September 30, 2005, Mr. Boundy was teaching his science class at Nautilus. He was having problems with one particular student, D. M., who was approximately 14 years of age.1 D. M. had just returned to class from being on indoor suspension, for cutting class. Earlier that day, after having returned from indoor suspension, D. M. had been involved in a physical altercation, a “minor”2 fight, and Mr. Boundy counseled him. At lunch time, another teacher broke-up a fight between D. M. and another student; Mr. Boundy counseled him again. Mr. Boundy determined that the first fight did “not” warrant a “write-up” and that the second fight perhaps “may” have warranted a write-up but that he decided not to do so.3 After lunch, while in Mr. Boundy’s class, D. M. had another fight with a student, which was D. M.’s third fight that day. Mr. Boundy has a policy in his class that, “after three strikes, you’re out,”4 therefore, instead of counseling D. M. again, Mr. Boundy determined that a “write-up” was warranted and that D. M. had to leave his class. Mr. Boundy told D. M. to leave the class and go to the office. Before leaving the class, D. M. began spraying perfume and then walked out into the hallway but did not go the office. Mr. Boundy observed D. M. still outside in the hallway. When Mr. Boundy walked out of his class into the hallway, he observed D. M spraying perfume in the hallway. Mr. Boundy asked D. M. to give the perfume to him (Mr. Boundy). D. M. raised his hand and brought it down as if to strike Mr. Boundy at which time Mr. Boundy grabbed D. M.’s hand and pulled it behind his (D. M.’s) back and told D. M. that he (D. M.) needed to go to the office. The hallway outside of Mr. Boundy’s classroom is equipped with a surveillance camera, which recorded the interaction between Mr. Boundy and D. M. after the contact described above. The surveillance camera does not record as a regular video camera but records as a series of snapshots or still pictures approximately every second, with gaps in between the snapshots; therefore, the surveillance camera fails to reveal completely what happens within a segment of time.5 As a result of the gaps in between snapshots of the surveillance camera, the testimony of witnesses is crucial in determining what happened. While in the hallway, the surveillance camera shows Mr. Boundy’s back to it and D. M. directly in front of him in such close proximity as if their bodies were touching. Mr. Boundy testified that he took D. M. by the arms and was directing him toward the doors leading to the office. Mr. Boundy’s testimony is found to be credible. Subsequently, while also in the hallway, the surveillance camera, in several snapshots, shows Mr. Boundy and D. M. separated, with D. M. facing Mr. Boundy, who testified that D. M. wrestled away from him. The surveillance camera also shows, in one snapshot, Mr. Boundy’s left hand on D. M.’s right shoulder and, in another snapshot, D. M. moving back toward the classroom. Mr. Boundy testified that D. M. was going back to the classroom without his (Mr. Boundy’s) permission. D. M. admitted that he was returning to the classroom without Mr. Boundy’s permission. Mr. Boundy’s testimony is found credible. Further snapshots by the surveillance camera show Mr. Boundy grabbing D. M. by the arms and shoulder area, when D. M. gets close to the classroom, and pushing D. M. down the hallway; and shows some students observing the conduct in the hallway. Also, the snapshots by the surveillance camera show Mr. Boundy and D. M. exiting the exit doors at the stairwell, with Mr. Boundy continuing to hold D. M.’s arms. After they go through the exit doors, the snapshots by the surveillance camera show Mr. Boundy releasing D. M. and watching D. M. go down the stairs. Mr. Boundy testified that he told D. M. to go to the office. D. M. does not deny that Mr. Boundy told him to go to the office at that point. D. M. went to the main office. The school counselor, Amy Magney, talked with D. M., who was loud and appeared to be agitated. Ms. Magney observed marks on D. M.’s arms and the back of his neck, which she described as “very red.” D. M. informed Ms. Magney that Mr. Boundy’s forceful touching had caused the red marks. Ms. Magney took D. M. to the assistant principal, Ms. Gonsky, who observed marks on D. M.’s arms, which were red, and marks on D. M.’s the neck, shoulder area, which Ms. Gonsky described as a “little red.” Mr. Boundy admits, and at no time did he deny, that he grabbed D. M. by the arms and shoulder area. For example, at the Conference for the Record (CFR) held on November 15, 2005, Mr. Boundy admitted that he held D. M.’s arms by the back directing him towards the stairs. A detective of the School Board’s police department reviewed the snapshots by the surveillance camera. From the detective’s observation, he determined that Mr. Boundy did not take any malicious action against D. M.; that D. M. was resisting Mr. Boundy; that, at one point, D. M. made an aggressive action against Mr. Boundy; and that Mr. Boundy was “directing, escorting” D. M. through the exit doors. D. M. testified that Mr. Boundy also grabbed him around the neck. Mr. Boundy denies that he grabbed or touched D. M.’s neck but admits that he grabbed D. M. at the shoulder area. V. V., a student in Mr. Boundy’s class, testified that Mr. Boundy grabbed D. M. by the neck, pushing D. M. out of the classroom. Also, the Conference for the Record (CFR) held on November 15, 2005, indicates that the same student stated that, while Mr. Boundy and D. M. were in the hallway, D. M. swung at Mr. Boundy and struck him in the chest. Mr. Boundy denies that he was struck by D. M. and D. M. denies that he struck Mr. Boundy. V. V.’s testimony is not found to be credible. The snapshots by the surveillance camera do not show Mr. Boundy grabbing or touching D. M.’s neck. Ms. Magney was the first person in the school's office to observe the marks, and when she saw the marks on the back of D. M.’s “neck,” the marks were “very red”; however, when Ms. Gonsky, the second person in the school's office to observe the marks, the marks around the “neck, shoulder area” were a “little red.” Further, D. M. had been in two physical altercations before the incident with Mr. Boundy and the last altercation had occurred at lunch time. Ms. Gonsky’s account of the location of the red marks is not inconsistent with Mr. Boundy’s testimony, regarding the shoulder area. Additionally, when Ms. Gonsky observed the marks at the neck, shoulder area, they were a little red, not red or very red. The undersigned finds Mr. Boundy’s and Ms. Gonsky’s testimony and account more credible regarding the marks being at the shoulder area, not the neck. Furthermore, the undersigned finds that Mr. Boundy grabbed D. M. at the shoulder area and that the marks at the shoulder area were caused by Mr. Boundy and were a little red. No dispute exists that D. M. was being disruptive. Mr. Boundy had counseled D. M. on two occasions that same day for fighting. D. M. had committed a third strike by fighting again in Mr. Boundy's class, and according to Mr. Boundy's classroom policy of which the students were aware, the third strike meant that the student was leaving the classroom and going to the school's office. Mr. Boundy was going to write-up D. M. for the incident but did not do so. Before he could write-up D. M., Mr. Boundy was summoned to the school's office after the administrators in the office observed the marks and heard D. M.'s version of the incident. At the beginning of each school year, the principal of Nautilus, Caridad Figueredo, has an opening meeting, consisting of two days. At the opening meeting, among other things, Ms. Figueredo notifies the Nautilus' faculty that they must comply with the rules of the School Board and the Code of Ethics, and some of the rules are reviewed with the faculty. Further, at the opening meeting, Nautilus' faculty is provided a copy of the Faculty Handbook. Nautilus' faculty signs an acknowledgement that they understand that they are responsible for becoming knowledgeable about the rules and adhering to them. Mr. Boundy signed an acknowledgement and received a copy of the Faculty Handbook. Regarding physical contact, Ms. Figueredo indicates at the opening meeting that the School Board prohibits using physical contact to maintain discipline or to affect a student’s behavior. As a result, at the opening meeting, she informs Nautilus' faculty, and stresses to them, that they should not use physical force or, generally, to come in physical contact with the students. However, as to coming into physical contact with students, an exception is recognized and allowed in the touching of a student by a teacher if the teacher has a rapport with the student and the student has no objection to or approves of the teacher just tapping him or her. That exception is not applicable in the instant case. Nautilus had a 2005-2006 Faculty and Staff Handbook, hereinafter Handbook. The Handbook contained a Progressive Discipline Plan, hereinafter Plan, for teachers to use when they encounter disruptive students. The Plan contained several steps of action, which provided in pertinent part: Step I: Teacher The teacher may handle discipline in the following ways (list not inclusive): Move close to the student – use verbal and/or non-verbal techniques to correct behavior problems * * * Speak with the student on a one-to-one basis * * * Contact parent (verbal and/or written) Hold parent or student/parent conference PLEASE NOTE: Parent contact is REQUIRED before a referral can be made to the administration. Only disciplinary problems involving infractions of the Code of Student Conduct Group III or higher (fighting . . .) may be directly referred to the administration using a case management form. * * * Step IV: Referring Students For Administrative Action Students should be sent directly to the appropriate administrator only when critical incidents occur such as fighting . . . Please use your emergency button to request for[sic] assistance. If a student becomes disruptive and you request removal the administrator will take the appropriate disciplinary action deemed necessary according to the Code of Student Conduct and provide teachers immediate feedback. (emphasis in original) The Handbook also contained a section entitled “Things To Remember When Dealing With A Student,” which provided in pertinent part: 4. DON’T: Snatch things away from students. Become confrontational. Physically block an exit. Argue or get on the student’s level. Shout or put them down. Disrespect them. * * * 6. Use common sense regarding touching students: Be aware that affectionate gestures may be misconstrued. Avoid physical contact of any kind in situations involving you and student (i.e. where there are no witnesses). Additionally, the Handbook contained a section entitled “How to Avoid Legal Complications as an Educator,” which provided in pertinent part: Respect the space of others. Do not place your hands on students. * * * Know the laws, School Board policies and school rules, and follow them. * * * Corporal punishment is prohibited in Miami- Dade County Public Schools. Treat each student with respect. Establish a policy regarding discipline. Distribute the policy to students and parents at the beginning of the year or when the students begin your class. The School Board has established “Procedures for Promoting and Maintaining a Safe Learning Environment,” which provides in pertinent part: Purpose of the Procedures for Promoting and Maintaining a Safe Learning Environment This document, Procedures for Promoting and Maintaining a Safe Learning Environment, is incorporated by reference and is a part of School Board Rule 6Gx13-5D-1.08, Maintenance of Appropriate Student Behavior. It has been prepared to assist school administrators in promoting and maintaining a safe learning environment in the public schools of Miami-Dade County, Florida. These procedures and directions are set forth to guide and promote orderly and productive participation of students in school life and support the achievement of Florida's education goal for school safety and environment, Section 229.591(3)(e), F.S. Student actions and behaviors that can be defined as disruptive and/or threatening must be dealt with according to Florida Statutes, and Florida Board of Education and Miami-Dade County School Board Rules. This manual contains information necessary to assist school administrators in making the most appropriate decisions and taking warranted action in promoting maintaining a safe learning environment. * * * Administrators, counselors, and appropriate staff are expected to become familiar with this document, to review it periodically, and to utilize it according to its inherent purpose -- promoting and maintaining a safe learning environment in the public schools of Miami-Dade County, Florida. As the administration and staff at each school site address the requirements of current Miami- Dade County Public Schools (M-DCPS) guidelines, they should also review modifications of requirements related to school discipline and school safety as established by the Florida Legislature. * * * GUIDELINE #39: REMOVAL OF STUDENT FROM CLASS AND POSSIBLE EXCLUSION OF THE STUDENT BY THE TEACHER CURRENT LAW AND/OR PRACTICE: Florida Statutes and Miami-Dade County School Board Rules allow for teachers to remove a disruptive student from class if the behavior of the student has an adverse effect on the teacher's ability to communicate effectively with students or the ability of the students to learn. Section 232.271, F.S., provides for the right of the teacher to refuse to accept a student back to class who has been removed for disruptive behavior which adversely affects the teacher's ability to communicate effectively with the students or with the ability of the students to learn. Provisions for Exceptional Students: The Placement Review Committee shall refer to the IEP team all exclusion requests for students from exceptional education classes. Temporary Removal from Class 1. The teacher shall have the authority to remove a seriously disruptive student from the classroom. In such cases, the principal or designee shall be notified immediately and the teacher shall be entitled to receive, prior to the student's return to class, a report describing corrective action(s) taken. Guidelines for implementing this provision shall be developed by each Educational Excellence School Advisory Council (EESAC). Code of Student Conduct Infractions The principal or designee will follow the Code of Student Conduct on all disciplinary matters. Only those disciplinary problems which disrupt a teacher's instruction, when the teacher requests the student's permanent removal from class, shall be referred to the Placement Review Committee, if the request is not resolved by the principal. A CFR was held on November 15, 2005. A Summary of the CFR was prepared and provides in pertinent part: [Mr. Boundy was asked]: 'Did you touch the student?' [Mr. Boundy] replied: 'Yes and it will never happen again.' * * * The following directives are herein delineated which were issued to you [Mr. Boundy] during the conference: Adhere to all M-DCPS [Miami-Dade County Public Schools] rules and regulations at all times, specifically School Board Rules [sic] 6Gx13-4A-1.21, Responsibilities and Duties. Adhere to The Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida. Cease and desist from utilizing physical means to effect the behavior of students. * * * During the conference, you [Mr. Boundy] were directed to comply with and were provided copies of the following School Board Rules: 6Gx13-4A-1.21, Responsibilities and Duties 6Gx13-4A-1.213, The Code of Ethics You [Mr. Boundy] were advised of the high esteem in which teachers are held and of the District's [School Board's] concern for any behavior, which adversely affects this level of professionalism. You [Mr. Boundy] were reminded of the prime directive to maintain a safe learning environment for all students and that your actions violated this directive. . . . Further, attached to the Summary of the CFR was "Guideline #9: Corporal Punishment, Current Law and/or Practice, from the Procedures for Promoting and Maintaining a Safe Learning Environment," which provides in pertinent part: GUIDELINE #9: CORPORAL PUNISHMENT CURRENT LAW AND/OR PRACTICE: CORPORAL PUNISHMENT IS PROHIBITED IN MIAMI-DADE COUNTY PUBLIC SCHOOLS. . . . Corporal punishment is physical force or physical contact applied to the body as punishment. Section 228.041(27), F.S., defines corporal punishment as: . . . the moderate use of physical force or physical contact by a teacher or principal as may be necessary to maintain discipline or to enforce school rule. However, the term 'corporal punishment' does not include the use of such reasonable force by a teacher or principal as may be necessary for self-protection or to protect other students from disruptive students. The use of physical restraint techniques in accordance with the Miami-Dade County School Board Rule 6Gx13-6A-1.331, Procedures for Providing Special Education for Exceptional Students and Article VIII of the Contract Between Miami-Dade County Public Schools and the United Teachers of Dade is not corporal punishment. Prior to Mr. Boundy’s going into the hallway, to confront D. M., alternative avenues were available to Mr. Boundy for sending D. M. to the school's office without confronting him in the hallway. Nautilus has a protocol that, whenever a teacher is unable to control a disruptive student by using classroom management techniques, the teacher can press a security button, located in the classroom, and a security monitor or an administrator will immediately come to the classroom. The security monitor or administrator will assess the situation and remove the disruptive student. Mr. Boundy failed to use this established protocol. The undersigned does not find credible the testimony given on alternative methods of dealing with D. M., as a disruptive student, in terms of in-school suspension, student mediation, conflict resolution, parent involvement, alternative education, suspension, and expulsion as being applicable to the instant case. These alternatives are available after the student is removed from the classroom to the school's office; they fail to address the immediate removal of the physical presence of a disruptive student from the classroom. The exception to corporal punishment found at Guideline Nos. 9 and 39, regarding the use of physical restraint techniques for situations involving Exceptional Student Education (ESE), is not applicable to the instant case. Mr. Boundy's class was not an ESE class, and D. M. was not an ESE student. Also, the exception to corporal punishment found at Guideline No. 9, regarding situations to protect other students, is not applicable to the instant case. None of the other students in Mr. Boundy's class were in harm's way or needed protection in the hallway outside Mr. Boundy's classroom. However, the exception to corporal punishment in a situation for self-protection, i.e., the protection of Mr. Boundy from D. M., was applicable in the instant case. When D. M. raised his hand and brought it down as if to strike Mr. Boundy, Mr. Boundy grabbed D. M.'s arms and put his (D. M.'s) arms behind his back; at that instant, Mr. Boundy was in need of self-protection and he (Mr. Boundy) acted appropriately. But, the evidence fails to demonstrate that, after Mr. Boundy prevented D. M. from striking him, Mr. Boundy continued to be in need of self-protection. Self-protection failed to continue to exist and failed to exist during the time that Mr. Boundy was directing/escorting D. M. down the hall to the exit doors. The Administrative Director of the School Board's Office of Professional Standards, Gretchen Williams, testified that Mr. Boundy's use of physical contact in the handling of D. M. in the hallway and that the presence of red marks on D. M., exemplified excessive force, which rendered Mr. Boundy's action as a violent act. Further, she testified that Mr. Boundy's conduct was corporal punishment; that his violent act constituted unseemly conduct; and that his violent act was contrary to the School Board's prime directive to maintain a safe learning environment, which constituted unseemly conduct and was conduct unbecoming a School Board employee. Ms. Williams' testimony is found to be credible. Also, the School Board's Administrative Director, Region II, DanySu Pritchett testified that Mr. Boundy's physical force constituted violence in the workplace; and that he failed to maintain the respect and confidence of the student and the value of worth and dignity of the student through the use of physical force. Further, she testified that the failure to use an alternative method of removal by using the emergency call button was poor judgment and constituted conduct unbecoming a School Board employee. Ms. Pritchett's testimony is found to be credible. Additionally, Ms. Figueredo, testified that Mr. Boundy subjected D. M. to unnecessary embarrassment by using physical force in the hallway in front of D. M.'s classmates while Mr. Boundy was directing/escorting D. M. down the hall. Further, Ms. Figueredo testified that, during the hallway incident, Mr. Boundy engaged in corporal punishment, conduct unbecoming an employee of the School Board, unseemly conduct, and poor judgment, and was not a good role model to the students and staff. Ms. Figueredo's testimony is found to be credible. Also, Ms. Figueredo testified that Mr. Boundy's use of poor judgment and failure to use established protocol and to exemplify a good role model to the students and the staff caused Mr. Boundy to lose his effectiveness. Ms. Figueredo's testimony is found to be credible. Pending the investigation of the incident by the School Board, Mr. Boundy was removed from the classroom. He was placed on alternative assignment, i.e., at his home. Due to Mr. Boundy's failure to follow established protocol at Nautilus for the removal of D. M. from the classroom, to the physical force used by Mr. Boundy, to the marks that were a little red and were caused by the physical force, and to the seriousness of the incident, by memorandum dated November 21, 2005, Ms. Figueredo recommended a 30-day suspension for violation of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties. Ms. Pritchett agreed with the recommendation. By memorandum dated December 1, 2005, the School Board's Region Center II concurred in the recommendation. On February 28, 2006, a meeting was held with Mr. Boundy to address the forthcoming School Board's consideration of the recommendation for a 30-day suspension without pay. Those in attendance included Mr. Boundy, Ms. Williams, Ms. Pritchett, Ms. Figueredo, and a UTD representative, Mr. Molnar. The determination was that Mr. Boundy would be recommended for a 30-day suspension without pay for just cause, including but not limited to "deficient performance of job responsibilities; conduct unbecoming a School Board employee; and violation of State Board Rule 6B-1.001, Code of Ethics of the Education Profession in Florida; and School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties; and 6Gx13-5D-1.07, Corporal Punishment--Prohibited." By letter dated March 1, 2006, Mr. Boundy was notified by the School Board's Assistant Superintendent, among other things, that the School Board's Superintendent would be recommending, at the School Board's meeting scheduled for March 15, 2006, the 30-day suspension without pay for just cause, indicating the violations aforementioned. By letter dated March 16, 2006, the School Board's Assistant Superintendent notified Mr. Boundy, among other things, that the School Board had approved the recommendation and that he was not to report to work at Nautilus from March 16, 2006 through April 26, 2006.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order finding that just cause existed for the 30-day suspension, without pay, from employment of Robert Boundy. DONE AND ENTERED this 30th day of April 2007, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2007.
The Issue Did the actions of Respondent, Joy Thompson (Ms. Thompson), during an altercation with student V.G.1 on April 13, 2010, violate Rules 6GX13-4A-1.21, 6GX13-4A-1.213, and 6GX13-5D-1.07 of the Miami-Dade County School Board (School Board)? If Ms. Thompson's actions violated the School Board's Rules, do the violations constitute just cause for termination or other disciplinary action?
Findings Of Fact The School Board is the constitutional entity charged with the duty to operate, control, and supervise the Miami-Dade County Public School System. Ms. Thompson has worked for the School Board for ten years. Throughout her employment she has worked at Ruth Owens Kruse School (Kruse) as a full-time School Security Monitor. This is a separate day school serving students with emotional and behavioral disabilities. Ms. Thompson has been a satisfactory employee for the ten years of her employment, except for the incident involved in this proceeding. She has received only one verbal warning. Under School Board rules, the warning is not formal discipline. The incident resulting in the warning did not generate a finding of probable cause to believe that Ms. Thompson had violated School Board rules. The School Board and her principals have never disciplined her. The basic objectives of Ms. Thompson's position include monitoring student activity "in promoting and maintaining a safe learning environment" and ensuring that appropriate standards of conduct are followed. Her job tasks and responsibilities include reporting serious disturbances and resolving minor altercations. The collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade (Collective Bargaining Agreement), Florida Statutes, State Board of Education rules published in the Florida Administrative Code, and the policies and procedures of the School Board govern Ms. Thompson and establish the terms and conditions of her employment. Ms. Thompson is an "educational support employee," as defined by section 1012.40(1)(a), Florida Statutes (2010)2 and is governed by the Collective Bargaining Agreement. The Collective Bargaining Agreement requires "just cause" for the discipline of support personnel. The Collective Bargaining Agreement provides that: Just cause includes, but is not limited to misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality, and/or conviction of a crime involving moral turpitude. Such charges are defined, as applicable, in State Board [of Education] Rule 6B-4.009. Rule 6B-4.009 of the State Board of Education defines incompetency, immorality, and gross insubordination. It defines willful neglect of duty continuing or constant intentional refusal to obey reasonable orders. The rule defines misconduct in office as violations of Florida Administrative Code Rules 6B- 1.001 and 6B-1.006 "so serious as to impair the individual's effectiveness in the school system." The Collective Bargaining Agreement affirms that the School Board and the Superintendent of Schools have exclusive management authority of the total school system. They have the exclusive right to suspend or terminate employees. The Collective Bargaining Agreement recognizes that "special education students" may experience impaired impulse control of such severity that the use of physical restraint is necessary. It also states: "The purpose of physical restraint is to prevent injury to persons or destruction of property. It is not to be used to 'teach the child a lesson' or as punishment." The School Board provided Ms. Thompson its policies and procedures, including its Code of Ethics and all the rules that she is charged in this proceeding with violating. Ms. Thompson has reviewed those policies. Knowing and abiding by them is a requirement of her job. As a School Security Monitor at Kruse, Ms. Thompson's duties included ensuring that the school environment was safe for the employees and children. All Kruse staff members must be able to work with students having emotional and behavioral disabilities. The staff must be able to de-escalate situations, maintain order, maintain discipline, and serve as role models for the students. If attacked, employees may defend themselves. The School Board has provided Ms. Thompson initial training and refresher training in "Safe Crisis Management." The School Board has also provided Ms. Thompson training in appropriate physical restraint techniques. Twelve clinicians work full-time at Kruse with students. They are clinical psychologists, clinical social workers, or art therapists. Each student has a clinician case manager. Kruse protocols require employees to call a clinician for assistance with behavioral problems the employee cannot manage. Room 22 at Kruse is the designated "Calm Room." It is for students who are agitated, serving detention, or serving "timeout" in the least restrictive area outside the classroom. The adjoining room, with a connecting door, is designated as the "Timeout Room or Back Room," divided into two areas. The "Timeout Room or Back Room" is a state-approved, specifically designed, and padded room for use by students at extreme behavioral levels. On April 13, 2010, Ms. Thompson's security post was down the hall from Room 22. V.G., an 18-year-old tenth grade Kruse student, was in the "Calm Room" serving a one day detention because she had skipped school the day before. Other students, including V.G.'s friend L.D., were in the room. The morning of April 13, 2010, Ms. Thompson had escorted V.G. to the "Calm Room." Around noon, Ms. Thompson passed the open door of the "Calm Room." Mr. Villarreal, the teacher in the "Calm Room," asked Ms. Thompson to stay in the "Calm Room" while he stepped out for a few minutes. Ms. Thompson agreed and took a seat at a desk at the back of the room. V.G. was sitting near the front of the room. She was talking and misbehaving. She was not doing her work. V.G. was talking loudly to her friend L.D. across the room and to other students. There were three other School Security Guards in the room at the time. Ms. Thompson directed V.G. to turn around and be quiet. V.G. ignored her and continued talking across the room to L.D. She talked back to Ms. Thompson repeatedly and was verbally abusive. V.G. said, "Bitch, I am not doing it." V.G. continued to talk and be insulting and combative. Ms. Thompson continued to tell V.G. to be quiet and turn around. But as Ms. Thompson grew upset, she told V.G. that she had a "fat ass." Ms. Thompson also told V.G. "that's why your boyfriend doesn't love you and that's why; you're fat." The argument continued and escalated with V.G. and Ms. Thompson insulting each other. Each called the other a "fat bitch" and other names several times. Ms. Thompson grew increasingly upset and walked up to V.G. saying that she was taking V.G. to the "Back Room." Another School Security Guard, Mr. Rojas joined Ms. Thompson to escort V.G. to the "Back Room." At any time, Ms. Thompson could have disengaged from her argument with V.G. and let Mr. Rojas and the other School Security Guards in the room handle the problems V.G. was creating. She also could have called a clinician for assistance. She did neither. Ms. Thompson did not disengage. She continued yelling and arguing with V.G. and followed Mr. Rojas and V.G. into the "Back Room." She was upset by the insults and because students were seeing V.G. be disrespectful to her. Ms. Thompson did not need to follow V.G. and Mr. Rojas into the "Back Room." In her anger, Ms. Thompson pushed past Mr. Rojas and punched at V.G. She grabbed V.G.'s hair, and V.G. grabbed hers. They fought until the other School Security Guards separated them. In the struggle, Ms. Thompson scratched V.G.'s face and neck, leaving light marks. She also bruised V.G.'s arms. Ms. Thompson left the area. As she left, Ms. Thompson grabbed V.G.'s purse and threw it in the trash. Leaving the area of the "Calm Room," Ms. Thompson passed school psychologist Ana San Roman. Ms. Thompson was disheveled and visibly agitated. As the two passed each other, Ms. Thompson said to Ms. San Roman: "I finally got that bitch." Her exclamation demonstrated that the altercation involved personal feelings about V.G. not just the professional issues presented by the events of the day. Ms. Thompson's altercation with V.G. was not part of an effort to prevent injury to person or damage to property. It was the result of Ms. Thompson's frustration and anger and Ms. Thompson's desire to demonstrate to V.G. that she could not show Ms. Thompson disrespect. After the incident, Ms. Thompson completed a required form called a Student Case Management Referral. In the form Ms. Thompson stated that she attempted to perform an approved restraint on V.G. But, at the hearing, Ms. Thompson testified that V.G. attacked her. She did not claim to have attempted to perform an approved restraint. V.G.'s account of the fight on the day it occurred and at hearing are consistent, albeit more colorful in testimony. The inconsistency of Ms. Thompson's testimony with her report on April 13, the greater consistency of V.G.'s testimony with her report, and the testimony of Ms. San Roman are significant factors resulting in determining that Ms. Thompson's account is not as credible as V.G.'s. The "Do's and Dont's [sic]" list for interventions with students at Kruse identifies the following behaviors that escalate difficulties with students as "don'ts": raising voice, yelling, having the last word, using "put downs," and using physical force. In the course of her altercation with V.G., Ms. Thompson engaged in every one of the behaviors. After investigating the incident, the office of the Miami-Dade County Public Schools Superintendent advised Ms. Thompson, by letter dated October 5, 2010, that it intended to recommend her suspension and termination to the School Board for violation of Rules 6GX13-4A-1.21, 6GX13-4A-1.213, and 6GX13- 5D-1.07 of the Miami-Dade County School Board. At its October 13, 2010, meeting the School Board suspended Ms. Thompson without pay and began dismissal proceedings against her for violation of the rules. The School Board's October 15, 2010, letter advising Ms. Thompson of the decision stated that it was "for just cause, including, but not limited to" violation of School Board Rules 6GX13-4A-1.21, 6GX13-4A-1.213, and 6GX13- 5D-1.07. School Board Rule 6Gx13-4A-1.21 provides in relevant part: All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the workplace is expressly prohibited. School Board Rule 6Gx13-5D-1.07 provides in relevant part: The administration of corporal punishment in Miami-Dade County Public Schools is strictly prohibited. Miami-Dade County Public Schools has implemented comprehensive programs for the alternative control of discipline. These programs include, but are not limited to, counseling, timeout rooms, in-school suspension centers, student mediation and conflict resolution, parental involvement, alternative education programs, and other forms of positive reinforcement. In addition, suspensions and/or expulsions are available as administrative disciplinary actions depending upon the severity of the misconduct. School Board Rule 6Gx13-4A-1.213, Code of Ethics, provides in part: As stated in the Code of Ethics of the Education Profession in Florida (State Board of Education Rule 6B-1.001): * * * The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity. Aware of the importance of maintaining the respect and confidence of one's colleagues, students, parents, and other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct. * * * Each employee agrees and pledges: To abide by this Code of Ethics, making the well-being of the students and the honest performance of professional duties core guiding principles. To obey local, state and national laws, codes and regulations. To support the principles of due process to protect the civil and human rights of all individuals. To treat all persons with respect and to strive to be fair in all matters. To take responsibility and be accountable for his or her actions. To avoid conflict of interest or any appearance of impropriety. To cooperate with others to protect and advance the District and its students. To be efficient and effective in the delivery of job duties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final Order finding that there is just cause to terminate Ms. Thompson's employment. DONE AND ENTERED this 29th day of April, 2011, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 29th day of April, 2010.
The Issue The nature of the instant controversy is whether Petitioner has just cause to terminate Respondent under section 1012.33, Florida Statutes (2015),1/ and whether Respondent's acts and/or omissions disqualify him from being employed in the Indian River County School District ("School District").
Findings Of Fact Based on the evidence presented at the final hearing, the undersigned makes the following findings of relevant and material facts: Respondent was employed by the School Board as a classroom teacher. As a teacher, Respondent was required to abide by all Florida Statutes which pertain to teachers, the Code of Ethics and Principles of Professional Conduct for the Education Profession in Florida, and all School Board policies. Testimony of William Fritz William Fritz, assistant superintendent for Human Resources and Risk Management, testified for the School Board. One of his primary duties is to conduct employee disciplinary investigations for the School Board. He is considered the "point person" for such matters. Fritz was informed by the fingerprint specialist in his office that Respondent had been arrested for felony DWLS. Subsequently, the same person informed him that Respondent had been convicted of the felony DWLS on October 6, 2015. The felony designation for Respondent's DWLS was based on this being his third or subsequent DWLS offense. The Judgment of Conviction dated October 6, 2015, designated the crime as "Driving While License Revoked-Permanently Revoked." Pet.'s Ex. F. After learning of Respondent's felony conviction, Fritz conducted an internal investigation. He had an informal discussion with Respondent to discuss the matter. This occurred in November 2015. When they met, Respondent told Fritz that he felt he did not need to self-report the conviction because the School District was automatically notified by the court.2/ Respondent explained to Fritz that there were some extenuating circumstances for the car trip that day involving a visit to a very ill friend. As a follow-up to the meeting, Fritz reviewed the School Board policies pertaining to discipline. He concluded that the situation likely warranted termination. He requested to meet with Respondent again, but his invitation was declined by Respondent. During the course of his investigation and review of Respondent's personnel file, Fritz concluded that Respondent had been put on employment probation by EPC in 2012 and that the probation was still active when the 2014 arrest and subsequent conviction in 2015 occurred. The EPC order proscribed certain conduct by Respondent during probation. The EPC order provided that Respondent "violate no law and shall fully comply with all District School Board policies, school rules, and State Board of Education rules." Fritz concluded that the DWLS conviction violated that provision of the EPC order, as well as certain School Board employee rules and policies. Notably, Fritz concluded that Respondent's 2015 felony DWLS conviction was a Category 3 violation of School Board Policy 3121.01. Convictions for Category 3 offenses, by definition, expressly prevented the hiring or retention of an employee "under any circumstances." Pet.'s Ex. K.3/ After reviewing all of the relevant documents and concluding his investigation, Fritz met with the School Board superintendent and recommended that Respondent be terminated. In arriving at that recommendation, Fritz took into account the mitigating factors explained by Respondent during their first meeting, namely needing to visit a sick friend. Fritz noted during his investigation that another final order of EPC had also been entered in 2007, disciplining Respondent for a conviction for driving under the influence ("DUI"). Fritz testified that there had been a termination of another teacher in the School District for a felony offense. The termination occurred in 2013 and was referred to DOAH, which recommended that termination was appropriate. There was no suggestion or testimony during the course of Fritz's testimony that the recommendation to terminate Respondent was related in any manner to problems with Respondent's job performance or other conduct on the job. Rather, the felony conviction violated School Board policy requiring termination and also constituted violations of the EPC order and resulting EPC probation. On cross-examination, Fritz acknowledged that the most recent felony conviction in October 2015 had not yet been addressed or ruled on by EPC insofar as Respondent's teaching certificate was concerned. Fritz further testified that a collective bargaining agreement ("CBA") exists which governs the discipline of teachers, including Respondent. Article 5.1, section (A) of the CBA, states as follows: Discipline of an MBU shall be progressive. Progression shall be as follows: documented verbal warning presented in a conference with the MBU, a letter of reprimand, suspension, termination. Serious first offenses may result in an immediate, strong consequence up to and including termination. Resp.'s Ex. 18. Fritz testified that Respondent's felony conviction for DWLS was a "serious first offense," which gave the School District the discretion to move directly to termination under Article 5.1, section (A) of the CBA.4/ When questioned by Respondent as to whether or not a felony conviction for a worthless check offense, for instance, could also result in a termination, Fritz pointed out Petitioner's Exhibit K, which specifically designated worthless check convictions as a different and separate "Category 5" offense. Category 5 offenses, by express definition and unlike Category 3 offenses, afforded the School District considerable leeway on discipline, on a case-by-case basis. Conversely, Fritz testified that a felony conviction for DWLS fell under a different category, "Category 3," and was considered significant and serious enough to warrant termination of the employee. Testimony of Brian Krystoforski Respondent started teaching in 1984 and is in his 24th year of teaching in the state of Florida. Respondent testified, and emphasized throughout the proceeding, that the School District was aware of a prior criminal traffic conviction and EPC sanctions in 2012 but, nonetheless, permitted Respondent to continue to teach in the School District.5/ Respondent testified that the 2012 EPC final order related, as well, to a prior DWLS felony conviction. Respondent testified that, on the date he was arrested for the 2015 DWLS conviction, he was driving to visit a good friend who had serious medical issues and was very depressed. However, he acknowledges his trip was a "bad decision." He characterized his plea of no contest on October 6, 2015, as more of a plea of convenience believing that his explanation for driving that day would mitigate the effect of the criminal plea and conviction before the circuit court judge. The undersigned has considered the collection of exhibits offered by the parties and admitted into evidence. The undersigned has also reviewed the plea colloquy from October 2015 before the circuit court judge who took Respondent's felony plea to DWLS.6/ Respondent emphasized that his felony conviction for DWLS should be evaluated using several mitigating factors found in Florida Administrative Code Rule 6B–11.007, Disciplinary Guidelines.7/ Insofar as the severity of this conviction is concerned, Respondent felt that he was just guilty of using "bad judgment." Furthermore, Respondent argues that he is not a danger to the public under one of the mitigating factors outlined in the Florida Administrative Code. Another mitigating factor Respondent felt should be considered is that he has been an educator for a long period of time. He felt that his commitment and participation as the football defensive coordinator at Vero Beach High School should also be considered a mitigating factor. Respondent felt that there had been no actual damage, physical or otherwise, caused by his driving while license suspended. Furthermore, in 24 years of teaching, he has never been considered for termination for any other conduct or offenses. Finally, he argues that the effect of termination on his livelihood and ability to earn a living warrants consideration. On cross-examination, the evidence revealed that Respondent had a conviction for DUI in 1988, a conviction for DUI in 1990, and a conviction for a DUI in 2002. In 2004, adjudication was withheld for driving while intoxicated on a revoked license. Respondent also conceded that EPC warned him that a permanent revocation of his educator certificate could occur under certain circumstances, particularly if the educator's certificate had been sanctioned by EPC on two or more previous occasions. Respondent testified that he had, indeed, been sanctioned by EPC on two previous occasions prior to this 2015 conviction for DWLS. There is also evidence to show that Respondent has been characterized as a "highly effective" teacher during recent evaluations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Indian River County School Board implement its preliminary decision to terminate the employment of Respondent. DONE AND ENTERED this 2nd day of May, 2016, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 2016.
The Issue The issues for determination are whether Respondent's suspension should be upheld and whether his employment with Petitioner should be terminated, as set forth in Petitioner's action letter dated May 11, 2006 and, more specifically, in the Notice of Specific Charges dated and filed May 30, 2006.
Findings Of Fact In 1983, Mr. Peraza, at 18 years of age, was arrested for strong-arm robbery. The case was nolle prossed, and the record was sealed. Almost 15 years later, in 1998, Mr. Peraza applied for an instructional position with the School Board. The 1983 arrest information became known to the School Board through this application process. In 1999, Mr. Peraza began his employment with the School Board as a teacher. At all times material hereto, he was assigned to Allapattah Middle School. While at Allapattah Middle School, Mr. Peraza taught Civics, Geography, and U.S. History. Also, at Allapattah Middle School, Mr. Peraza was the Department Chair and a Team Leader. Further, at Allapattah Middle School, Mr. Peraza received numerous awards from the school and the students, including Beginning Teacher of the Year and the student- nominated, Best Teacher. He was also twice nominated for Teacher of the Year. Additionally, Mr. Peraza was active in some of the student-oriented activities: participated in after school tutoring; assisted the Chess Club; and assisted wrestlers in achieving academic success. Since the beginning of his employment with the School Board, Mr. Peraza received outstanding performance evaluations. Mr. Peraza was well-liked by both parents and students. On or about March 12, 2004, Mr. Peraza was arrested for selling and felony dealing in a controlled substance, i.e., steroids. The arrest occurred on school property at the administration office. He was charged with selling a controlled substance, i.e., steroids, and with forgery (attempting to use the identification of another person without consent). The court's disposition of the charges was the withholding of adjudication and probation, with special conditions--probation for a year, with early termination after six months. After five months, Mr. Peraza probation was terminated due to his compliance with all the terms of his probation. At hearing, Mr. Peraza explained the circumstances surrounding the arrest, charge, and disposition. He explained that a man whom he had befriended at the gym inquired as to whether he (Mr. Peraza) would receive mail for him (the man) at his (Mr. Peraza’s) post office box because the man stated that he (the man) was unable to receive mail at his home; Mr. Peraza agreed to do so. A U.S. Postal inspector intercepted a packaged addressed to Mr. Peraza’s post office box, not to Mr. Peraza, which contained steroids. At the time of his arrest, Mr. Peraza denied having any knowledge of the package or of its contents. Mr. Peraza accepted a plea agreement of withholding adjudication and probation to avoid the possibility of being incarcerated so that he could support his two young daughters. The undersigned finds Mr. Peraza's testimony credible. Further, no evidence was presented as to whether Mr. Peraza actually pled nolo contendere to the charge. In as much as the evidence demonstrates that he accepted a plea agreement and that no objection was made to his explaining the charges and the court’s disposition, an inference is drawn and a finding of fact is made that he pled nolo contendere to the charge. After the arrest of Mr. Peraza, the principal at Allapattah called a special faculty meeting. At the meeting, the principal informed the faculty of Mr. Peraza's arrest. No evidence was presented that the faculty would have known about the arrest had the principal not informed the faculty at the special meeting. The local newspaper, The Miami Herald, contained a report of the arrest. The newspaper’s report on Mr. Peraza’s arrest was found on page 47 of the paper amidst the paper’s report of the occurrence of numerous criminal actions. After this criminal incident, Mr. Peraza was returned to the classroom by the School Board. He had the understanding that no disciplinary action would result from the criminal incident although he did receive a verbal warning from the principal at Allapattah Middle School. On or about September 30, 2004, Mr. Peraza was arrested at Allapattah Middle School for probation violation. The charge was eventually dismissed. During the time that the School Board was reviewing the incident, he was given an alternate location assignment. The principal at Allapattah Middle School gave Mr. Peraza a verbal warning for the incident. When Mr. Peraza returned to Allapattah Middle School, he was welcomed back by his colleagues, the students, parents, and his administrator; and he received several letters of support from students and parents. Further, at a back-to-school gathering in October 2004, when Mr. Peraza was introduced, he received a standing ovation. On or about November 26, 2005, Mr. Peraza was arrested for and charged with aggravated battery and witness tampering/threatening, involving a domestic incident with his wife. The court's disposition of the charges was probation for five years. At the time of the hearing in the case at hand, he was still on probation. At hearing, Mr. Peraza and his wife explained the circumstances of the charges involving the domestic incident. Mrs. Peraza suffers from "night terrors," a condition in which she, during sleep, screams and acts violently but is not aware of what she is doing. Prior to the incident, neither Mr. Peraza nor his wife had informed Mr. Peraza's daughters of or explained to them his wife’s condition because she was embarrassed by her condition. At the time of the incident, Mrs. Peraza was suffering from an episode of a night terror, and Mr. Peraza was attempting to calm and restrain her to ensure her safety. Mr. Peraza's daughters saw him, and one of the daughters, fearing for the safety of Mrs. Peraza, but not aware that Mrs. Peraza was experiencing one of her episodes, called 911. Mrs. Peraza, because of her condition, was unaware of what had occurred prior to the arrival of the law enforcement officers. The law enforcement officers attempted to question Mr. Peraza’s daughters, but he intervened demanding that the officers not question and upset his daughters. Mr. and Mrs. Peraza are being seen by a therapist for her condition. The undersigned finds the testimony of Mr. and Mrs. Peraza credible. Mr. Peraza explained the circumstances surrounding the plea agreement. At the time of the domestic incident and the ensuing charges, he was involved in a custody battle with his ex-wife over his daughters. Mr. Peraza was faced with expending funds for his criminal defense or his custody battle; he chose the custody battle. As a result, he accepted a plea agreement, which resulted in the five-year probation. The undersigned finds Mr. Peraza's testimony credible. Further, no evidence was presented as to whether Mr. Peraza actually pled nolo contendere to the charge. In as much as the evidence demonstrates that he accepted a plea agreement and that no objection was made to his explaining the charges and the court’s disposition, an inference is drawn and a finding of fact is made that he pled nolo contendere to the charge. No testimony was presented that students, parents, or faculty had any knowledge of Mr. Peraza’s arrest involving the domestic incident. Mr. Peraza does not deny any of the foregoing arrests, charges, or court dispositions. Mr. Peraza has had no further arrests, charges or convictions. By letter dated May 11, 2006, the School Board notified Mr. Peraza that, at its meeting on May 10, 2006, it took action to suspend him and initiate dismissal proceedings against him from all employment with it.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order: Dismissing Counts I and II; and Immediately reinstating Javier Peraza, with back pay and benefits. DONE AND ENTERED this 1st day of February 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 1st day of February, 2007. COPIES FURNISHED: Jean Marie Middleton, Esquire School Board of Miami-Dade County 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Carol R. Buxton, Esquire Florida Education Association 140 South University Drive, Suite A Plantation, Florida 33324 Dr. Rudolph F. Crew, Superintendent Miami-Dade County School District 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines street, Room 1244 Tallahassee, Florida 32399-0400 John L. Winn, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact 1. William Long holds Florida Teaching Certificate number 241743, covering the area of elementary education; it is valid through June 30, 1993. 2. During the 1987-88, 1988-89, 1989-90, and 1990-1991 school years, Mr. Long was employed as a teacher at Highland Oaks Elementary School by the School Board of Dade County. Mr. Long taught fifth grade with a team of four other teachers. The teachers worked together closely, as the team concept required them to teach their classes in a single large classroom and to instruct certain subjects to all of the students at the fifth grade level. The early portion of Mr. Long's employment at Highland Oaks was unmarkable. Beginning in the 1989-1990 school year, and continuing through the 1990-1991 school year, Mr. Long engaged in unprofessional behavior which was noticed by his fifth grade team members and by the administrative staff of Highland Oaks. Mr. Long was often absent from work. He also frequently arrived late for work in the morning and left school before the dismissal time for teachers. Although Mr. Long was advised by his principal to be punctual, he continued to arrive late to school. Mr. Long missed or was late for parent-teacher conferences because of his tardiness. Absenteeism prevented him from participating in several fifth grade team conferences and planning sessions. Mr. Long did not prepare adequate lesson plans. The absence of proper lesson plans caused difficulties for substitute teachers during his many absences. Mr. Long consistently neglected to maintain student records and student assignments, and failed to record grades in his grade book. He did not properly issue progress reports and report cards. Team members often had to evaluate his students in his absence, based upon inadequate information. Mr. Long's lack of record keeping violated Date County School Board Rule 6Gx13-4A-1.21. Mr. Long left his class unattended and unsupervised on an almost daily basis. He usually failed to follow the procedure of notifying another teacher before leaving his class. As a result, his unsupervised students became noisy and disruptive to other classes. Mr. Long frequently fell asleep during the school day in his classroom. On occasions, his own students had to wake him up. Mr. Long fell asleep during staff meetings, most notably during a meeting concerning the district's Drug-Free Work Place policies on December 6, 1989. Parents made numerous complaints to teachers and administrators about Mr. Long. Parents often asked to have their children transferred out of his class. Mr. Long's behavior became widely known and was a serious cause for concern among parents. Mr. Long also engaged in bizarre and unusual conduct in front of his students. This conduct included: making guttural sounds and dancing in front of the class, putting a box over his head, hanging a lunch bag on his ear, "moonwalking" and singing in the cafeteria, putting a straw in his nose as if inhaling cocaine, and eating a candy cane with exaggerated movements. Student response to such actions caused a distraction to other classes and teachers. As a result of these deficiencies, members of the fifth grade teaching team frequently had to fulfill Mr. Long's duties, such as conducting parent conferences, planning, and evaluating and grading student work. Mr. Long's difficulties were first reported to the district on December 1, 1989, when Virginia Boone, Principal of Highland Oaks, referred him to the Employee Assistance Program. Ms. Boone's referral followed several conferences with Mr. Long about his deficiencies. On January 18, 1990, James E. Monroe, Director for the Office of Professional Standards, held a conference for the record with Mr. Long. Mr. Long was told to submit his grade book with up-to-date student grades, report for a medical evaluation and drug screening, and to remain at home and be accessible by telephone. On January 19, 1990, Mr. Long tested positive for the presence of cocaine in his system. The test results were subsequently reported to the school district. The positive cocaine test constituted violation of the Dade County School Board's Drug Free Work Place policy in that test results, coupled with his behavior, show that he was under the influence of cocaine while on duty. Mr. Long did not report for his medical evaluation on two occasions, and did not remain at home in order to be reached by district personnel. On January 31, 1990, the Respondent was reassigned to the School Board's Region II Office. Mr. Long received a memorandum on February 5, 1990, from his principal and assistant principal which detailed his non-compliance with their directives concerning grading of his students, lesson plans, supervision of students, and participation in parent conferences. On February 5, 1990, district personnel met with Mr. Long in another conference for the record. He was placed upon medical leave to undergo substance abuse counseling. He was also warned of his violation of district policies and state rules, and was advised that failure to improve could lead to termination. Mr. Long first attended a 28 day inpatient drug abuse program at Mt. Sinai Hospital. Beginning April 26, 1990, he participated in the Concept House drug and rehabilitation program as a resident, and was subsequently transferred to an outpatient program. In August of 1990, Mr. Long was cleared to return to work and was assigned back to Highland Oaks Elementary. As a condition of his return, he was required to continue his participation in the after care portion of his drug treatment program. Upon his return to Highland Oaks, his unprofessional and inappropriate behavior became worse. He engaged in the same conduct as the previous school year and parents continued to complain about him and request transfers of their children from his class. On September 5, 1990, Mr. Long was arrested by police officers in Opa Locka, Florida, and charged with possession and purchase of cocaine. Mr. Long failed to follow administrative directives by not participating appropriately in his aftercare program. On December 3, 1990, the Concept House terminated him from its program and subsequently notified the district of its action on December 5 or 6, 1990. On December 17, 1990, Mr. Long fell asleep during class. At one point during the day, he was physically unable to stand to conduct his class. On that same day, a teacher observed Mr. Long eating a candy can in a strange and exaggerated manner, and believed that he was "out of it." The teacher called Assistant Principal Barbara Cobb to come to the classroom. Barbara Cobb observed the same behavior, and after watching Mr. Long for several minutes, asked him to accompany her to the school office. Mr. Long told Ms. Cobb a bizarre story about activities at his house. He repeated the story for the principal, who sent Mr. Long home for the day. On December 29, 1990, Mr. Long again was arrested by police officers in Miami upon suspicion of possession of cocaine. He was incarcerated in the Dade County Jail until January 17, 1991, in part due to a bench warrant issued as a result of his September 5, 1990 arrest. No adjudication was ever entered as to the charges resulting from the September 1990 or December 1990 arrests. On January 6, 1991, near the end of the winter vacation, Mr. Long telephoned Assistant Principal Cobb and informed her that he would be absent for an unspecified period of time because of his father-in-law's death. When Mr. Long placed the call to Ms. Cobb, he was still incarcerated in the Dade County Jail. District policy authorizes the use of sick leave in the event of the death of a relative, but not if an employee is in jail. Mr. Long's false statement concerning the purpose of his absence violated School Board Rule 6Gx13-4E-1.02, and was a ruse to attempt to be paid using sick leave benefits, to which he was not entitled. On January 11, 1991, Mr. Long was assigned to the Region II Office. He returned to work on January 22, 1991. While at that location, he failed to follow directives concerning signing in and out and reporting absences. The district penalized Mr. Long a day and a half's pay for his unauthorized absences. Mr. Long did not receive an annual teaching evaluation for the 1989- 1990 and 1990-1991 school years, primarily because he was absent from classroom duty during the portion of the year when the evaluations were conducted. On March 20, 1991, the School Board of Dade County suspended Mr. Long from his position and initiated dismissal proceedings against him pursuant to Section 231.36(4)(c), Florida Statutes. At Mr. Long's election, a formal Division of Administrative Hearings hearing was held before Hearing Officer Stuart M. Lerner on September 12, 1991, and October 6, 1992. On February 11, 1991, Hearing Officer Lerner issued a Recommended Order which found that Mr. Long should be dismissed from the school system on the grounds of gross insubordination and willful neglect of duty, immorality, misconduct in office and incompetency. On March 18, 1992, the School Board of Dade County adopted the Recommended Order and dismissed Mr. Long from his employment with the school system upon the grounds set forth in the Recommended Order. Mr. Long failed to provide a proper or even minimal education to his students during the 1989-1990 and 1990-1991 school years. School staff and parents in the community were well aware of Mr. Long's poor performance as a teacher. All of Mr. Long's fifth grade team members had little confidence in his performance, and did not want to work with him again. The School Board gave Mr. Long an opportunity for rehabilitation and a chance to return to the classroom, upon his return Mr. Long continued to engage in inappropriate behavior. Dr. Patrick Gray is qualified as an expert in performance appraisal, personnel management and professional ethics in the field of education. Based upon his experience, knowledge of Education Practices Commission precedent, and evaluation of the facts of the case, Dr. Gray recommended that Mr. Long's teaching certificate be suspended or revoked for a minimum of three years, followed by a probationary period with quarterly reporting, random drug testing, and coursework in the area of his deficiencies. The recommendation of revocation was supported by Dr. Joyce Annunziata, Director for the Office of Professional Standards for the School Board of Dade County.
Recommendation Based upon the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that the Respondent, William Long, be found guilty of violating Sections 231.28(1)(c) and 231.28(1)(e), Florida Statutes. It is further recommended that the Education Practices Commission revoke Mr. Long's teaching certificate for three (3) years, and that if he does re-enter the teaching profession as a licensed educator, that he shall be placed on an additional three (3) years of probation with the Education Practices Commission. The terms of the probation shall include the requirement that Mr. Long: shall make arrangements for his immediate supervisor to provide the Education Practices Commission with quarterly reports of his performance, including, but not limited to, compliance with school district rules and other policies governing teacher conduct and of any disciplinary actions imposed upon him by the district; shall make arrangements for his immediate supervisor to provide the Education Practices Commission with an accurate copy of each written performance evaluation prepared by his supervisor, within ten (10) days of its issuance; shall perform his assigned duties in a competent professional manner; shall violate no law and shall fully comply with all school board rules and State Board of Education Rule 6B-1.006; and shall successfully complete two (2) college level courses, each course being three (3) credit hours, in the areas of classroom management and teaching methods. During the probationary period, Mr. Long shall submit to random drug testing. RECOMMENDED in Tallahassee, Leon County, Florida, this 29th day of June 1992. WILLIAM R. DORSEY, JR. 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 29th day of June 1992.
The Issue Whether the Respondent committed the violations set forth in the Notice of Specific Charges dated August 13, 1999, and, if so, the penalty which should be imposed.
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 Miami-Dade County School Board is a duly- constituted school board, charged with the duty to operate, control, and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to Article IX, Section 4(b), Florida Constitution, and Section 230.03, Florida Statutes. At all times material hereto, Mr. Paulk was employed by the School Board as a school security monitor. School security monitors are classified as educational support personnel in Section 231.3605(1), Florida Statutes. Mr. Paulk is a member of the United Teachers of Dade ("UTD") and is bound by the provisions of the Contract between the Dade County Public Schools and the United Teachers of Dade ("UTD Contract"), effective July 1, 1997, through June 30, 2000. Mr. Paulk was initially employed by the School Board in June 1993 as a part-time school security monitor and was assigned to the Krusé Center. The Krusé Center is a middle school serving only severely emotionally disturbed and emotionally handicapped students. In January 1994, Mr. Paulk was hired as a full-time school security monitor, and he was assigned to work at the Krusé Center. Except for a brief hiatus in early 1998, Mr. Paulk worked at the Krusé Center until November 1998, when he was assigned to the Florida Diagnostic Learning Resource System as an alternate assignment. Mr. Paulk was suspended as an employee of the School Board on May 13, 1999. The responsibilities of a school security monitor include helping the school staff maintain a safe learning environment for the students, reporting serious disturbances to the school administration, and resolving minor altercations. Because of the nature of their exceptionalities, the students attending the Krusé Center can sometimes be difficult to handle, and their behavior is sometimes disruptive and/or out-of-control. Many of the exceptional education students at the Krusé Center have included in their Individual Educational Plans a provision allowing the use of certain techniques to physically restrain the student if his or her behavior is out- of-control. All personnel at the Krusé Center, including security monitors, are required to use non-physical intervention techniques to control a student whose behavior is disruptive and/or out-of-control. If a student's disruptive or out-of- control behavior cannot be controlled by non-physical intervention techniques, physical intervention techniques known as Safe Physical Management ("SPM") techniques may be used to restrain the student until he or she is calm. Only SPM techniques, which are approved by the School Board, may be used to physically restrain students when the use of physical restraint is necessary. There are three primary SPM techniques: the extended arm assist; upper torso control; and supine/prone restraint. It is never appropriate to use SPM techniques in response to a student’s general misbehavior or defiance. Procedures regarding the use of physical force against exceptional education students are set forth in Article VIII, Section 3 of the UTD Contract, which provides in pertinent part: H. Physical restraint refers to the use of physical intervention techniques designed to restrict the movement of a student in an effort to de-escalate aggressive behavior. In order to promote a safe learning environment, the district has authorized the implementation of specific physical restraint procedures to be used in Exceptional Student Education programs when a student's IEP documents the potential need for their use. These procedures include, but are [sic] limited to, holding and escape techniques which, when implemented, prevent injury to students and staff or prevent serious damage to property. According to School Board procedures and the UTD Contract, a school security monitor who has physically restrained a student must complete three student case management forms: the Parent Notification, Physical Restraint Procedures Form; the Student Case Management Student Services Form; and the Student Case Management Referral Form. All staff at the Krusé Center, including Mr. Paulk, received formal training in the use of SPM techniques at the school-district level. In addition, in September 1996, Daniel Jones, the principal of the Krusé Center at the time, distributed a memorandum to the staff at the Krusé Center, including Mr. Paulk, which contained a brief review of the purpose of physical restraint, the circumstances in which it could be used, and the authorization to use only the School Board-approved SPM techniques. In addition, Mr. Jones reviewed the paperwork that must be completed when SPM techniques were used to restrain a student. Will Gordillo, who became the principal of the Krusé Center at the beginning of the 1997-98 school year, prepared a handbook for security monitors working at the Krusé Center, which included the school's internal policies and procedures for safely dealing with the exceptional education students who attended the Krusé Center. The handbook was given to all security monitors at the school, and the contents of the handbook were reviewed with the security monitors. Mr. Paulk received a copy of the handbook, and its contents were reviewed with him. The first preliminary personnel investigation into Mr. Paulk's use of physical force against a student was conducted in 1996, when Mr. Paulk was accused on grabbing a student by the shirt and breaking the student's necklace. The charges against Mr. Paulk were found to be unsubstantiated, and Mr. Jones, then the principal of the Krusé Center, reviewed the investigative report with Mr. Paulk during a meeting held on June 5, 1996. According to the Site Disposition of Investigative Report prepared by Mr. Jones, he and Mr. Paulk reviewed and discussed the School Board's guidelines for the use of safe physical management. April 17, 1997, incident On April 17, 1997, an incident occurred at the Krusé Center involving Mr. Paulk and a student named A.G., who was 13 years old at the time. A.G.'s school bus was late, and he was waiting outside the school building. A security monitor named T. Grier was supervising students in the area where A.G. was waiting for the school bus. Although there was some disagreement in the testimony of Mr. Grier and A.G. relating to the events leading up to the incident1, it is uncontroverted that Mr. Grier told A.G. not to do something, that A.G. ignored his instruction, and that Mr. Paulk approached A.G. and asked him if he had heard Mr. Grier's instructions. When A.G. did not respond, Mr. Paulk then either "tackled" A.G. or hit A.G. in the head and neck with his forearm and elbow. Because A.G. was standing near the school building wall, the blow caused his head to hit the wall with enough force as to raise a lump on the left side of his head. A.G. was not exhibiting any aggressive behavior at the time of the incident. A.G. was very upset, and he went to the principal's office. A.G. wanted to call his mother, but Mr. Jones, the principal, tried to calm him and find out what had happened before allowing A.G. to call his mother. A.G. did not calm down, and he left the school grounds by himself without having called his mother. Later that afternoon, A.G. and his mother returned to the Krusé Center and reported the incident to Mr. Jones. Mr. Jones referred the matter to the Division of School Police for a preliminary personnel investigation. The investigator who conducted the preliminary personnel investigation concluded that the charge of battery against A.G. was substantiated. A Conference-for-the-Record was conducted by Mr. Jones on June 12, 1997, in which the incident involving A.G. was discussed with Mr. Paulk. Stella Menendez, the assistant principal at the Krusé Center, also attended the conference; Mr. Paulk waived the right to have a union representative present. Mr. Jones prepared a Summary of the Conference-for-the-Record dated June 12, 1997. According to the summary, Mr. Paulk was provided a copy of the investigative report, which was discussed during the conference. Mr. Jones reviewed with Mr. Paulk the appropriate use of physical force with students at the Krusé Center, both as set forth in the UTD Contract and as approved by the School Board. Mr. Paulk was directed to refrain from the use of inappropriate physical force, which is considered corporal punishment under the School Board's rules; to use only SPM techniques; and to use SPM techniques only when the use of physical restraint was necessary to prevent a student from harming himself or others or from damaging property. Mr. Paulk indicated that he did not "really" need any additional training in SPM techniques. Finally, Mr. Paulk was advised by Mr. Jones that a second substantiated report involving the inappropriate use of physical force on a student would result in further disciplinary action, including possible termination of his employment. Mr. Jones provided Mr. Paulk with copies of the documents discussed during the conference concerning the use of SPM techniques and of the School Board's rule prohibiting corporal punishment. December 18, 1997, incident On December 18, 1997, an incident occurred at the Krusé Center involving Mr. Paulk and a student named O.A., who was 12 years old at the time. The incident occurred in the school cafeteria, during the lunch hour. Mr. Paulk was supervising the students waiting in the lunch line, and he was standing at the door to the cafeteria with his arm across the door to keep the students congregating outside the cafeteria from entering until the lunch line was clear. O.A. was the first student standing in line waiting to be admitted into the cafeteria, and he pushed past Mr. Paulk without waiting for permission. Mr. Paulk confronted O.A., who made a defiant remark to Mr. Paulk and continued walking into the cafeteria. Mr. Paulk followed O.A. into the cafeteria, and he and O.A. exchanged words; O.A.'s behavior continued to be defiant. Mr. Paulk then grabbed O.A. from behind and pushed him facedown over a refrigerated case containing cartons of milk. O.A. put out his arms to brace himself and prevent his face from hitting the top of the refrigerated case. When O.A. pushed himself upright, Mr. Paulk grabbed O.A.'s shirt collar from the front, pushed O.A. against the wall of the cafeteria, and held O.A. there by placing his arm across O.A.'s chest. When Mr. Paulk pushed him against the wall, O.A. began yelling and cursing Mr. Paulk. Antonio Herrera, a paraprofessional at the Krusé Center who was in another part of the cafeteria when the incident began, heard the commotion and went to see what was happening. Mr. Herrera saw Mr. Paulk holding O.A. against the wall with his arm across O.A.'s chest, and Mr. Herrera intervened and escorted O.A. to a table in the cafeteria. During the incident, O.A.'s gold neck chain was broken. Mr. Paulk did not report this incident to the school administration, and he did not complete the paperwork required when physical intervention is used. The incident was reported by O.A.'s mother, who was very upset when she learned about the incident from her son. O.A.'s mother refused to allow her son to attend school after the incident as long as Mr. Paulk remained in his position as a security monitor. Mr. Gordillo, the principal of the Krusé Center at the time, referred the matter to the Division of School Police for a preliminary personnel investigation, and, on January 13, 1998, Mr. Gordillo held a Conference-for-the-Record to discuss the incident. The conference was attended by Mr. Gordillo, Mr. Paulk, and Benny Pollack, a UTD representative. Mr. Gordillo prepared a Summary of Conference-for-the-Record dated January 16, 1998. According to the summary, Mr. Paulk was advised that he would remain in his assignment as a security monitor at the Krusé Center but that he would be assigned to work at the Florida Diagnostic Learning Resource System pending the outcome of the preliminary personnel investigation. Mr. Gordillo directed Mr. Paulk to refrain from the use of all physical restraint with the students, including SPM techniques, and he reviewed with Mr. Paulk the cautions about the use of inappropriate physical force conveyed to him during the Conference-for-the-Record held on June 12, 1997, with respect to the substantiated charges of battery against A.G. Mr. Gordillo also notified Mr. Paulk that he would be subject to additional disciplinary action, and possibly termination from his employment with the School Board, if the charges against him were substantiated as a result of the preliminary personnel investigation. The investigator who conducted the preliminary personnel investigation concluded that the charge of battery against O.A. was substantiated. A Conference-for-the-Record was held on June 19, 1998, to review the results of the investigation. The conference was attended by Mr. Gordillo; Stella Menendez, the assistant principal of the Krusé Center; Mr. Paulk; and Lourdes Blanco-Lopez, the UTD lead steward. Mr. Gordillo prepared a Summary of the Conference-of-the-Record dated July 9, 1998. According to the summary, Mr. Gordillo reviewed the Summary of the Conference-for-the-Record held on June 12, 1997. Mr. Gordillo went over the report of the preliminary personnel investigation in which the charges of battery against O.A. were found to be substantiated, and Mr. Gordillo discussed with Mr. Paulk the difference between the appropriate and the inappropriate use of physical force. Mr. Gordillo discussed with Mr. Paulk the provision of the UTD Contract dealing with the use of physical restraint to prevent students from inflicting injury on themselves or others or from causing serious damage to property, the provision of the UTD Contract requiring the documentation of the use of physical restraint, the School Board rule prohibiting corporal punishment, and the contents of a brochure on the use of reasonable force. The July 9, 1998, Summary of the Conference-of-the- Record further reflects that Mr. Gordillo directed Mr. Paulk to refrain from using physical force with students except in those cases which require the use of safe physical management techniques . . . [,] to make sure you record all incidents in which you use any physical force and/or physical restraint techniques in a SCM [Student Case Management] form and turn it in to an administrator immediately after the said incident . . . [,] [and] to attend the next scheduled Safe Physical Management Workshop during the 1998-98 [sic] school year as a refresher. Failure to comply with the aforementioned directives will be considered gross insubordination. Any further acts of non-compliance with school board policies and procedures will also lead to disciplinary actions which may include dismissal. Mr. Paulk was advised that a letter of reprimand would be issued following the conference. A memorandum dated July 10, 1998, and entitled "Reprimand" was directed to Mr. Paulk in which Mr. Gordillo officially reprimanded Mr. Paulk for his actions with respect to the incident involving O.A. Mr. Paulk was further advised in the Reprimand: [Y]ou are directed to refrain from using inappropriate procedures and actions during the course of your employment day. Any recurrence of the above infraction [the December 18, 1997, incident] will be considered gross insubordination and may lead to further disciplinary action. October 23, 1998, incident On October 23, 1998, an incident occurred at the Krusé Center involving Mr. Paulk and a student named M.L., who was 12 years old at the time. The incident occurred in the morning, before school started. Mr. Paulk was in the school cafeteria, supervising students who had arrived at the school early. M.L. and another student were in the cafeteria, "play" wrestling and generally engaging in horseplay. Mr. Paulk told them to stop, and, when they did not do so, he grabbed M.L. by the back waistband of his pants, pulled him off the other student, and threw him between two cafeteria tables. M.L. got up from the floor and left the cafeteria. He returned to the cafeteria after a short time, and attended his classes. Later in the day, M.L. showed a fellow student abrasions on the right side of his body, near his waist, which he attributed to Mr. Paulk's use of physical force in the cafeteria that morning. Mr. Gordillo learned of the incident later on the day of October 23, 1998. He began gathering information regarding the incident, and, on Monday, October 26, 1998, the student and his parent came to Mr. Gordillo's office. M.L. showed Mr. Gordillo the abrasions near his waist on the right side of his body, and Mr. Gordillo took photos of the injuries. Mr. Gordillo then referred the matter to the Division of School Police for a preliminary personnel investigation, and, on October 28, 1998, Mr. Gordillo returned Mr. Paulk to the alternate work assignment at the Florida Diagnostic Learning Resource System. The investigator who conducted the preliminary personnel investigation concluded that the charge of battery against M.L. was substantiated as a result of the investigation. In a memorandum dated February 11, 1999, Mr. Paulk was notified that a Conference-for-the-Record would be held at the Office of Professional Standards on February 23, 1999. The stated purpose of the conference was to address the preliminary personnel investigation report which found that the charge of battery against student M.L. had been substantiated; Mr. Paulk's failure to follow administrative directives; Mr. Paulk's violation of the School Board rule prohibiting corporal punishment; Mr. Paulk's job performance to date; and Mr. Paulk's future employment status with the School Board. The conference was held on February 23, 1999, and was attended by Isaac J. Rodriguez, an executive director of the School Board's Office of Professional Standards; Mr. Gordillo; Mr. Paulk; and Dia Falco, a UTD Bargaining Agent Representative. Mr. Rodriguez prepared a Summary of Conference-for-the-Record dated March 18, 1999. According to the summary, the report of the preliminary personnel investigation that substantiated the charges of battery against M.L. was reviewed. Mr. Paulk's employment history with the School Board was reviewed, including the June 5, 1996, memorandum regarding the unsubstantiated charge of battery in 1996; the reports of the preliminary personnel investigations of the substantiated charges of battery against A.G. and O.A.; and the summaries of the Conferences-for- the-Record held on June 12, 1997 and June 19, 1998, to discuss these charges. Mr. Paulk was advised that his continued use of excessive force was of serious concern and that disciplinary action would be taken after the matter was reviewed by the Senior Executive Director of the Office of Professional Standards, the District Director of the Office of Exceptional Student Education and Psychological Services, Mr. Gordillo, and the School Board's attorneys. Finally, Mr. Paulk was given three directives: perform all duties as assigned; comply with all administrative directives; and refrain from using physical means to effect discipline. In a memorandum dated March 4, 1999, Mr. Gordillo transmitted to Roger K. Felton, District Director of the Office of Exceptional Student Education and Psychological Services, his recommendation that Mr. Paulk be dismissed from employment with the School Board. In a memorandum dated March 30, 1999, Mr. Felton transmitted to Joyce Annunziata, Senior Executive Director of the Office of Professional Standards, his concurrence in Mr. Gordillo's recommendation that Mr. Paulk be dismissed from employment. In a letter to Mr. Paulk dated April 28, 1999, Roger C. Cuevas, Superintendent of Schools, notified Mr. Paulk that he was recommending to the School Board that Mr. Paulk be suspended from employment and that proceedings for his dismissal be initiated. The School Board followed the Superintendent's recommendation at its meeting on May 12, 1999, and a letter dated May 13, 1999, was sent to Mr. Paulk notifying him of this action. Summary The evidence presented by the School Board is sufficient to establish with the requisite degree of certainty that Mr. Paulk's use of physical force against A.G., O.A., and M.L. was unseemly and does not reflect credit on either Mr. Paulk or the school system. The evidence presented by the School Board is sufficient to establish with the requisite degree of certainty that Mr. Paulk's use of physical force against A.G., O.A., and M.L. was inappropriate. The behavior exhibited by these three students did not warrant the use of physical force because the behavior was not disruptive or out-of-control behavior that posed a danger of harm to themselves or others or threatened the destruction of property. Even had the use of physical force been warranted, Mr. Paulk used excessive physical force and did not use authorized SPM techniques. In addition, the evidence presented by the School Board is sufficient to establish with the requisite degree of certainty that Mr. Paulk used physical force against these three students as punishment for their failure to follow his instructions rather than as a means of restricting their movements to de-escalate aggressive behavior. The evidence presented by the School Board is sufficient to establish with the requisite degree of certainty that Mr. Paulk failed to follow the directives he received in June 1996, in June 1997, and in June 1998 to use physical force with students only when the use of physical force was warranted and to use only SPM techniques when physically restraining students. The evidence presented by the School Board is sufficient to establish with the requisite degree of certainty that Mr. Paulk's use of physical force against A.G., O.A., and M.L. was excessive and caused physical injuries to both A.G. and M.L., although the injuries were not serious, and broke O.A.'s necklace. This use of physical force by Mr. Paulk against A.G., O.A., and M.L. not only reflects a lack of professional judgment on Mr. Paulk's part but also is inconsistent with Mr. Paulk's responsibility as a school security monitor to provide a safe learning environment for the students at the Krusé Center. The evidence presented by the School Board is sufficient to establish with the requisite degree of certainty that Mr. Paulk's conduct with respect to A.G., O.A., and M.L. was inconsistent with the standards of public conscience because Mr. Paulk used physical force against three children, aged 12 and 13, who were either seriously emotionally disturbed or emotionally handicapped, in circumstances in which the use of physical force was not warranted. However, the evidence presented by the School Board is not sufficient to establish with the requisite degree of certainty that Mr. Paulk's conduct was notorious or brought public disgrace or disrespect to the education profession. The evidence presented by the School Board is sufficient to establish with the requisite degree of certainty that just cause exists to terminate Mr. Paulk's employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order Dismissing Count V of the Notice of Specific Charges; Finding that, in accordance with the terms of the Contract between the Dade County Public Schools and the United Teachers of Dade, effective July 1, 1997, through June 30, 2000, just cause exists to terminate the employment of Christopher A. Paulk; and Dismissing Christopher A. Paulk from employment with the School Board of Miami-Dade County, Florida. DONE AND ENTERED this 9th day of May, 2000, 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 9th day of May, 2000.
The Issue The issue in this proceeding is whether Petitioner, St. Lucie County School Board, has just cause to terminate Respondent's employment.
Findings Of Fact Based on the evidence presented at the hearing, the undersigned credits and makes the following findings of material and relevant facts: Lockridge has been employed by the School Board and last worked as an ESE behavior technician at Northport K-8 School. Pet. Exh. 1. Lockridge is a continuing status employee covered under the Collective Bargaining Agreement ("CBA") between the School Board and the Classroom Teachers' Association Classified Unit ("CTA/CU"). Resp. Exh. 6. The CTA/CU consists of behavior technicians, paraprofessionals, bus paraprofessionals, and clerical staff. Tr. II, p. 180, lines 10-14. During the 2014-2015 school year, Lockridge was assigned to Teacher Amber McDonald's self-contained classroom for intellectually disabled students at Floresta Elementary. The intellectually disabled classroom is for students with emotional disorders and students with an intelligence quotient ("IQ") under 69. Tr. I, p. 51, line 25-p. 52, line 2. For the 2014-2015 school year, there were five adults working in Ms. McDoanld's classroom: Randolph Lockridge, behavior technician; Sharon Koen, paraprofessional; Stephanie Ludwig, paraprofessional; Ms. McDonald, classroom teacher; and Deborah Ramsingh, student teacher. Tr. I, p. 52, line 24-p. 53, line 7. There were approximately 12 students in the classroom. Tr. I, p. 53, lines 8-10. Student D.S. was an eight-year-old ESE student whose primary disability is intellectual. D.S. is non-verbal and has Down's syndrome. Pet. Exh. 7. Because of his disability, D.S. is limited to two-word utterances "here and there." He has an IQ below 60 and intellectually he is on about a one and one-half- year-old level. Tr. I, p. 54, lines 10-17. September 8 and 9, 2014, Incidents with D.S. On September 8, 2014, Ms. Ramsingh was engaged in a lesson with the students on using crayons, teaching them how to hold the crayons and how to draw on the paper. D.S. kept taking his crayons and throwing them on the floor. She observed Lockridge take the student's hand and press his fingernail into the palm of D.S.'s hand. The student screamed "ow" and pulled his hand back. Tr. I, p. 34, lines 9-18. Lockridge looked at him and asked, "Why are you crying, what's wrong?" Tr. I, p. 35, lines 14-15. Ms. Ramsingh reported what she saw the following day to Ms. McDonald, the supervising teacher in the classroom. Tr. I, p. 35, line 25-p. 36, line 12. On September 9, 2014, when Lockridge and D.S. returned to the classroom from physical education ("PE"), Ms. Ramsingh observed another interaction between them. D.S. had his crayons, and he threw them on the floor again. Lockridge took his hand and pushed his fingernail into the palm of the student's hand again. He said "ow" again, but continued to throw his crayons on the floor. Lockridge pressed his finger into the student's hand a second time. The student said "ow" again. When Lockridge realized Ms. Ramsingh was looking at him, he commented, "I shouldn't do that, they don't like when I do that, some people think it is abuse." Tr. I, p. 36 line 22-p. 37 line 9. Ms. Ramsingh went to Ms. McDonald and told her that Lockridge put his fingernail in the student's hand two more times, and she told Ms. McDonald the statement that Lockridge made. Tr. I, p. 38, lines 12-18. Ms. McDonald left the classroom to report it. Tr. I, p. 38, lines 17- 20. Ms. Ludwig took D.S. into the restroom and yelled for Ms. Koen to come into the restroom. Tr. I, p. 39, lines 14-18. Ms. Koen told Lockridge to get Ms. McDonald. Tr. I, p. 40, lines 9-14. The staff had ice packs on D.S. Tr. I, p. 40, lines 21-23. Ms. Ramsingh observed the fingernail marks in D.S.'s hand and the ice that the staff was putting on D.S.'s wrist. Tr. I, p. 47, lines 5-9. Ms. Ramsingh gave a statement to law enforcement the following day. Tr. I, p. 41, lines 3-7; Pet. Exh. 4. She also provided a statement for the School Board's investigation. Pet. Exh. 7. Ms. McDonald testified about what she observed on D.S.'s body (after the student had returned from P.E.). She described it as a fresh bruise about three to four inches on both of D.S.'s wrists; it looked like he had a hand mark on both his wrists, and it was purplish already. Tr. I, p. 55, lines 5-11. D.S. did not have any bruises on his body before he went to PE. Ms. McDonald asked Lockridge what happened. Lockridge said he did not know, "maybe he fell." Tr. I, p. 56, lines 1-2. Lockridge said he had to help D.S. walk. Tr. I, p. 56, lines 5-6. D.S. did not have any bruising on his body when he left the classroom for PE. But, he returned with bruises on his wrist, and Lockridge was responsible for supervising D.S. while he was at PE. Tr. I, p. 73, lines 17-25. Ms. McDonald testified that her observation of Lockridge was that there were a lot of times he was loud and instead of de-escalating a situation, he would often escalate it. Tr. I, p. 59, lines 1-3. There were parents of children that Lockridge had worked with who had concerns about Lockridge. As a result, Ms. McDonald restricted him from working with specific students in the classroom. Tr. I, p. 58, lines 4-5 and lines 15-18. As a behavior technician, Lockridge was trained in Crisis Prevention Intervention (CPI). Pet. Exh. 20 and Exh. 23. The purpose of CPI is to de-escalate a situation before it ever comes to the point of having to restrain a child. Tr. I, p. 59, lines 4-8, and p. 59, lines 12-14. Ms. McDonald testified that de-escalation means to approach the student and get them to calm down, to breathe. Tr. I, p. 60, lines 1-6. Ms. McDonald also testified that it is not appropriate to restrain a child by the wrist where bruising would be caused. Tr. I, p. 62, lines 21-24. If the child begins to resist, "the teacher should not move, but should stand there until the child is ready to move." Tr. I, p. 64, lines 2-4. Lockridge provided a statement to the principal regarding the September 9, 2014, incident with D.S. Pet. Exh. 9. Law enforcement was contacted. Tr. I, p. 56, lines 14- 15; Pet. Exh. 4. On September 10, 2014, the school security officer, Frank Sisto, notified Maurice Bonner, executive director of Human Resources, of Ms. Ramsingh's report. Pet. Exh. 11. On September 10, 2014, Mr. Bonner hand-delivered a Formal Notice of Investigation and Temporary Duty Assignment to Lockridge and also verbally notified Lockridge of the allegations. Pet. Exh. 6; Tr. II, p. 171, lines 23–p. 172, line 11. Lockridge was temporarily assigned to the ESE office pending an investigation. On March 19, 2015, the School Board's internal investigation concluded. Pet. Exh. 7. On May 1, 2015, Mr. Lockridge received a Letter of Reprimand from Mr. Bonner and was reassigned to Northport K-8 School as a behavior technician. Pet. Exh. 15. Involvement by Mr. Maurice Bonner Mr. Bonner testified that he discussed Lockridge's conduct and his expectations concerning future conduct with Lockridge. Specifically, Mr. Bonner explained to Lockridge that inappropriate discipline of students was not acceptable behavior and that he was to cease and desist from any type of such discipline in the future. Tr. II, p. 174, line 15-21. As executive director of Human Resources for St. Lucie County Public Schools, Mr. Bonner is in charge of the hiring process for applicants, in charge of records for the school district employees, supports administrators in the discipline process, works with employees on leave, interprets School Board policy, and provides support to the superintendent and the School Board members. Tr. II, p. 168, lines 12-17. Mr. Bonner is responsible for applying and enforcing School Board Policy Chapter 6.00, Human Resources. Tr. II, p. 169, line 24–p. 170, line 4. When an allegation of inappropriate conduct or violation of School Board policy is made for an individual who interacts with students, and if it rises to the level of institutional abuse, the school district's protocol is for the School Board administrators to contact the Department of Children and Families, law enforcement, the human resources administrator, and then the parent. Tr. II, p. 171, lines 5-15. After Lockridge was assigned to Northport K-8 School on May 1, 2015, there was another incident involving Lockridge and a disabled student, V.S.I. Tr. II, p. 175, lines 14-18. On January 20, 2015, when Lockridge said he did not want to give any further statement, he and Victoria Rodriguez, his union representative, asked for a copy of the incident report from the law enforcement officer. Tr. II, p. 179, lines 21– p. 180, line 3. The School Board provided the incident report to Lockridge and Ms. Rodriguez, and Lockridge wrote a statement. Pet. Exh. 10. Lockridge said he was too nervous (about the meeting) and he did not want to sit down and answer questions. But, he eventually wrote his statement after reviewing law enforcement's incident report while his union representative was present. Pet. Exh. 10; Tr. II, p. 182, line 6. By letter dated June 29, 2015, Superintendent Genelle Yost informed Lockridge that she intended to recommend to the School Board that he be terminated. Pet. Exh. 22. Mr. Bonner, in his conversation with Lockridge regarding the first incident (with Student D.S.), warned and instructed Lockridge to not use inappropriate discipline on students. Despite this warning, a few weeks later at Northport K-8 School, Lockridge used inappropriate discipline on a student again. Mr. Bonner, as an administrator, had given Lockridge a previous directive that was not followed. In Mr. Bonner's professional opinion, that constituted insubordination. Tr. II, p. 185, lines 17–p. 186, line 1; Pet. Exh. 24. Mr. Bonner testified that sitting on a student's hands is not appropriate discipline. It is not an appropriate method of restraint of a student. Tr. II, p. 186, lines 5-9. In addition, it constitutes a violation of the code of ethics of the standards for employees in the education profession, putting students in danger of harm. Mr. Bonner stated that "We're in charge of their health, welfare and safety and that's not meeting that standard." Pet. Exh. 24; Tr. II, p. 186, lines 10-14. Commenting on the incident involved, Mr. Bonner felt that "sticking a thumb down in a student's palm" was indecent conduct and can be considered abusive to a student. Tr. II, p. 186, lines 21–p. 187, line 1; Pet. Exh. 24. In his opinion, Lockridge's conduct constituted unsatisfactory work performance since he had harmed a student. He also felt it constituted neglect of duty and violation of any rule, policy, or regulation. Tr. II, p. 187, lines 5-18; Pet. Exh. 24. Mr. Bonner explained how progressive discipline works: We have several steps that we can use as far as disciplining employees based on their conduct and based on the severity . . . if we believe that the incident or the behavior is severe enough, we can skip steps . . . we can start immediately with termination if it's severe enough. If we don't believe it is severe enough to go that way, then we go down that continuum--a letter of concern, letter of reprimand, suspension or termination. Tr. II, p. 191, lines 7-23. When you look at progressive discipline, you have to look at what the previous action is. If you're going to look at multiple offenses of the same nature, you can't discredit that. T. II, p. 193, line 23–p. 194, line 2. In Mr. Bonner's opinion, Lockridge's second incident of sitting on a child's hand is "also abusive and discourteous conduct, it's immoral and indecent, it's negligent because he was told not to use inappropriate discipline, it's unsatisfactory work performance, and it's a neglect of his duty because it's not proper protocol or training for restraint of a student. His conduct is also a violation of the rules, policies, and regulations." Tr. II, p. 194, lines 3-10; Pet. Exh. 24. Lockridge had a duty and responsibility, and he failed to discharge that duty knowingly, and that was negligence, in Mr. Bonner's opinion. Tr. II, p. 194, lines 23-25; Pet. Exh. 24. Lockridge knew that sitting on a child's hands was not a proper restraint technique under the CPI training that he has received as a behavior technician for the St. Lucie County Public School System. He was told, based on a previous instruction, that sticking his thumb down in the student's hand was not appropriate discipline or restraint of a student. He knew that what he was doing was not appropriate and that it did not meet the standards of the St. Lucie County Public School System nor the training he received. Tr. II, p. 195, lines 11-23. Mr. Bonner told Lockridge when he gave him the Letter of Reprimand that if Lockridge violated any of the School Board policies again, more severe disciplinary action could be taken. Tr. II, p. 197, lines 13-22. The standard for skipping steps in progressive discipline is based on the employee's behavior. Tr. II, p. 198, lines 12-15. "It is on a case by case basis . . . if you did something very egregious, we don't have to start at the beginning of that continuum. Based on the behavior of the employee then [sic] dictates where we go on to that continuum." Tr. II, p. 198, lines 17-23. May 19, 2015, Incident with V.S.I. Jennifer Staab was a behavior technician at Northport K-8 School. Tr. I, p. 80, lines 1-6. Ms. Staab was certified in CPI. Tr. I, p. 81, lines 5-9. She worked with students in an emotionally behaviorally disturbed ("EBD") classroom on May 19, 2015. It is a self- contained classroom. Tr. I, p. 82, lines 1-7. On May 19, 2015, there were eight or nine students in the EDB self-contained classroom. Tr. I, p. 82, lines 11-14. There was only one way into the desk; the desk was pushed up against the computers. Tr. I, p. 83, lines 11-15. Ms. Staab heard a slap and that drew her attention to that direction. Tr. I, p. 84, lines 5-8. Lockridge was sitting on the desk; his back was towards V.S.I. Tr. I, p. 84, lines 11-12. V.S.I. was sitting in the desk. Tr. I, p. 84, lines 14-18. When Lockridge got off of the desk, Ms. Staab noticed deep indentations, at least two or three of them, on the student's one arm. Tr. I, p. 85, lines 22–p. 86, line 5. Ms. Staab concluded that Lockridge had to have been sitting on V.S.I.'s hands. Tr. I, p. 86, lines 16-18. From the way behavior technicians are trained, Ms. Staab considered Lockridge being seated on the desk and trying to prevent the student from getting out of the desk, to be an inappropriate restraint. Tr. I, p. 87, lines 14-22. If the student is not a threat to themselves or others, then physical restraint is not appropriate. Tr. I, p. 89, lines 15-18. While doing a single-hold restraint, the adult is behind the child. Tr. I, p. 93, lines 1-4. Ms. Staab never observed Lockridge behind the child. Tr. I, p. 93, lines 5-7. Ms. Staab noticed two indentations on V.S.I.'s arm, about three inches long. Tr. I, p. 93, lines 8-19. Testimony of Randolph Lockridge Ms. Staab did not witness V.S.I. trying to elope or run from the classroom. Tr. I, p. 98, lines 22-24. Lockridge admitted that he took hold of V.S.I.'s wrists, causing bruising to her wrists. Pet. Exh. 16; Tr. II, p. 213, lines 6-9. From Lockridge's perspective, "it was crisis because she was not being safe . . . she was 'not complying' with his verbal direction." (emphasis added). Tr. II, p. 213, lines 19-23. Lockridge argued that V.S.I. exhibited behavior, i.e. her elopement, that might harm other students. Tr. II, p. 213, line 24–p. 214, line 5.1/ Lockridge testified, without specific detail, that V.S.I. "could have hit, kicked, maybe spit on somebody or something." Tr. II, p. 214, lines 7-10. Lockridge testified that he was holding V.S.I.'s wrists when he was sitting on them. Tr. II, p. 215, lines 4-6. Despite his training, Lockridge testified that he did not understand that it was an inappropriate method of discipline for him to be sitting on V.S.I.'s hands. Tr. II, p. 215, lines 11-13. Lockridge testified that he did not intentionally violate any School Board policies or intend to violate any directives that he was given. Tr. II, p. 220, line 24–p. 221, line 3. This appeared, in part, to be the crux of his defense to the charges brought. Lockridge testified that when the incident was happening at Northport K-8 School with V.S.I., he reverted to and used his "military restraint training," instead of his School Board restraint training. Tr. II, p. 222, lines 15-17. Lockridge testified that he did not bring up this issue of his military training "kicking in," as he put it, concerning the incident involving V.S.I. However, he discussed it before with a behavior analyst concerning another student. Tr. II, p. 230, lines 19-21, and p. 231, lines 18-20. Lockridge related an incident that had occurred in May 2015. Apparently, a student tried to assault him while he was walking back to the ESE office. His old military restraint training came into play, and he ended up having to put the student on the ground. He physically put the student on the ground. Tr. II, p. 232, lines 12-16, and p. 233, lines 4-11. In a candid admission, Lockridge testified that he does not believe that "at this moment" he could work with disabled students at the school district as a behavior technician. Pet. Exh. 12; Tr. II, p. 236, lines 21-24. Describing his military restraint training (that he sometimes reverts to), Lockridge testified that because he was going to be working with prison detainees, "They taught us various techniques to keep yourself safe and try not to do harm to the prisoners either." Tr. II, p. 237, lines 17-22. Lockridge testified that, unlike CPI training, military restraint training is not non-violent training. It could be violent. Because, as he put it, you are working with prison detainees. So, Lockridge could not say it was non-violent. Tr. II, p. 237, line 23–p. 238, line 3. When asked if it is foreseeable that he could become violent with a student, Lockridge answered, "I don't know. . . . I understand what I did was wrong. I don't know how I could have done some things differently. I don't know." Tr. II, p. 238, lines 4-8. When asked if he can say with any degree of certainty that he may not pose a danger to students, Lockridge testified that, "if I'm put in a stressful situation with a very aggressive student or that I perceive to be aggressive, I do what I think is best for my safety at the time. Or the student's safety too." Tr. II, p. 238, lines 14-24. Lockridge testified, frankly, that for him, it is sometimes more of an automatic response and that he cannot really control this military restraint training that kicks in. Tr. II, p. 238. line 25–p. 239, line 3. Testimony of Virginia Snyder Virginia Snyder works for the Department of Children and Families as a child protective investigator. Tr. I, p. 153, lines 6-8. She prepared a report of institutional abuse, an investigative summary. Pet. Exh. 2.; Tr. I, p. 153, lines 13-25. Her investigation and report involved Lockridge sitting on V.S.I.'s hands to restrain her in the classroom at Northport K-8 School. Tr. I, p. 154, lines 21-25. She went to the school, talked with administration, talked to witnesses, and talked to children involved on the report. Tr. I, p. 154, lines 3-9. Ms. Snyder made verified findings for "threatened harm of physical injury." Tr. I, p. 154, lines 11-16. Ms. Snyder concluded that Lockridge had in fact sat on the child's hand. Tr. I, p. 155, lines 2-4. She also made a finding that the school district's policies and practices were appropriate. Tr. I, p. 155, lines 15-17. "Threatened harm" means the possibility that the person's actions can cause an injury to the child. Tr. I, p. 155, line 23–p. 156, line 1. Ms. Snyder testified that the Department of Children and Families felt that a pattern was appearing due to a prior investigation that was closed without a substantiated finding. When the Department of Children and Families conducted an institutional staffing, the Department of Children and Families was concerned that there was a pattern starting. Tr. I, p. 157, lines 4-8. Specifically, Ms. Snyder "looked at how Lockridge restrained the child, was it appropriate or was it inappropriate . . . . And that is where we established that there was a type of behavior, a pattern starting." Tr. I, p. 157, line 20–p. 158, line 2. "We (DCF) don't make the recommendation. We make the report so that those involved can have a copy of an official report from the Department of Children and Families. We put the findings in there so that whoever administrative-wise is taking a look at it can make a decision, like the School Board, as to what penalty that staff member may face." Tr. I, p. 159, lines 17-24. Based on Department of Children and Families legislation, she felt that the two incidents are "a pattern" and are not reflective of just isolated events. Tr. I, p. 162, lines 1-5, 16-17. Testimony of William Tomlinson Bill Tomlinson is the executive director for Student Services and Exceptional Student Education. Tr. I, p.112, lines 4-5. He has worked for the School Board a total of 29 years. Tr. I, p. 112, lines 13-14. Tomlinson testified regarding whether behavior technicians are trained in any sort of restraint or CPI. He testified that the school district has two separate models that are used in the district. The first is non-violent crisis prevention intervention, better known as CPI. The second model the district uses, for more severe children that may be in a special day school, is professional crisis management. Non- violent CPI is a nationally recognized model that deals primarily with strategies to verbally de-escalate behavior. It employs different levels of strategies with students before getting into physical management of any type of behavior. The physical management piece is a part or a component of the training, but it is really the last resort. In his opinion, "that (i.e., physical management) should be last." Tr. I, p. 114, lines 4-21. It is meant to be a process in which the teacher tries to curtail the behavior of the student by working with them to help them self-regulate so that the student can take ownership of his/her behavior and get themselves under control without the teacher having to do any type of physical management. Tr. I, p. 115, lines 8-16. "Many teachers, many principals have all been trained in this method so that they understand how to de-escalate behavior verbally, how to work with students to offer choices that you can do, versus doing this." Tr. I, p. 115, line 24. Tomlinson noted that "restraint" is a term used "whenever we physically manage a person . . . the way we define it is if you have to immobilize someone's limbs and they're not free, they no longer have freedom of movement, that would be considered a restraint." Tr. I, p. 116, lines 5-10. In his opinion, restraint of anyone is the last resort. Tr. I, p. 117, line 7. He added that "if you see that the behavior is something that you can verbally begin to de-escalate, have conversation with the child, the child is able to understand rationally what it is that you're asking of them, then you're going to employ all of these strategies before you ever get to that last resort." Tr. I, p. 118, lines 4-9. Any time an employee in the district has involvement with a child and there is a report of suspected institutional abuse, Tomlinson is notified. Mr. Bonner (Human Resources) is notified, and he, law enforcement, and the Department of Children and Families all work through the process together. Tr. I, p. 122, lines 16-23. Lockridge was removed and placed in the ESE department, working in the reception area where there was no access to children while the investigation was ongoing. Tr. I, p. 123, lines 6-11. Freedom of movement is good (the child likes the freedom of running off and playing on a playground or during PE) as long as they are safe. Tr. I, p. 126, lines 19-23. "If we end up bruising the child in anything that means to us that we have applied the wrong process or the wrong procedure." Tr. I, p. 127, lines 4-8.2/ "If the child starts fighting back in the process where there is restraint used, they're trying to get out of that, you need to let them go. You may have to resume the restraint once it is safe to do so." Tr. I, p. 127, lines 9-11. "If the child isn't hurting anybody . . . from crawling under (the desk) or crawling out of their desk . . . then it would be appropriate to not bring attention or get attention from someone. Instead, praise another child for acting appropriately or remaining in their chair. This is an effective approach to use." Tr. I, p. 128, lines 3-25. It is "absolutely not appropriate," in terms of restraint, to sit on a child's hand. Tr. I, p. 129, lines 1-3. It is not appropriate to take a disabled child by the wrist to try to get them to go where you want them to. The first appropriate response is "take my hand and let's walk." Tr. I, p. 131, lines 17–p. 132, line 3. Tomlinson testified, "I may take a person simply by the elbow and follow me. . . . That . . . is after you have exhausted the verbal demand for this. Because it's unnatural to have to do that, to lead people or to pull them where you want them to go." Tr. I, p. 132, lines 14-24. The January 13, 2012, mid-year review for Lockridge shows improvement needed in job knowledge and skills and quality of work. Resp. Exh. 5; Tr. I, p. 143 line 25–p. 144, line 2. Listed on Lockridge's mid-year evaluation at the time was that he needed improvement in job knowledge and skills and the quality of work. The narrative indicated that he was required to work with the behavior analyst at Sam Gaines School to review the appropriate protocols to follow to gain compliance from the students with whom he is working. Lockridge was required to attend training offered behavior technicians on early release and professional development days. Tr. I, p. 149, lines 6-14; Pet. Exh. 19. Lockridge was directed to increase his knowledge of behavioral tools to verbally de-escalate a situation, as well as to remain objective instead of entering into a verbal disagreement with students. It means not getting into a verbal power struggle with the child. "Be calm, relaxed in the tone and tenor of your voice and, whenever you work with the individual, don't let that person bring you into the type of behavior that they're exhibiting." Tr. I, p. 149, line 4–p. 150, line 4; Pet. Exh. 19. Finally, Tomlinson testified that it would not be appropriate for a behavior technician to drive their fingernail into the palm of any child. Tr. I, p. 150 lines 5-9.
Recommendation Based on the foregoing proposed Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the St. Lucie County School Board terminating Respondent from his position as an ESE behavior technician. DONE AND ENTERED this 4th day of April, 2016, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 2016.
The Issue Whether just cause exists for Petitioner to suspend without pay and terminate Respondent’s employment as a teacher.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within St. Lucie County, Florida. At all times material hereto, Respondent was employed by the School Board as a music teacher at Manatee Academy K-8 School (“Manatee”), pursuant to a Professional Services Contract, issued in accordance with section 1012.33(3)(a), Florida Statutes. Respondent’s employment with the School Board as a teacher began in 2006. At all times material hereto, Respondent’s employment with the School Board was governed by Florida law and the School Board’s policies. Prior to the incidents giving rise to this proceeding, Respondent was not the subject of any discipline. She had received overall ratings of “Exceptional” or “Above Expectation” on her teaching evaluation forms. The incidents giving rise to this proceeding occurred on October 18 and 19, 2012, during the 2012-2013 school year. October 18 and 19 Respondent awoke around 6:00 a.m. on Thursday, October 18, 2012, and reported to work at Manatee. That afternoon, Respondent finished her work day at Manatee and left the school sometime after 3:15 p.m. After running some errands, Respondent arrived at her single-family residential home in Fort Pierce, sometime after 5:00 p.m. Respondent shared the home with her long-time boyfriend and fiancé, Dominic Madison (“Madison”). Madison was also a teacher employed by the School Board. At that time, Madison was a band director at a local high school. By the time Respondent got home, Madison had not yet returned home from his work day at the high school. Shortly after arriving home, Respondent sat down at her personal laptop computer to check e-mails and do some work. The computer was connected to the home’s wi-fi network. While working on the computer, Respondent discovered an unfamiliar icon and link to a file on the home network. The icon peaked Respondent’s interest. Upon clicking on the icon, a video opened with Madison’s face. Respondent then observed Madison and a white female engaged in sexual activity in a room inside their home.1/ While Respondent was unsure, it appeared that the female might be a former student of Madison’s who might also be a minor. As she continued watching the video, Respondent recognized the female as one of Madison’s 17-year-old students, K.M. After watching the video, Respondent was devastated, upset, angry, and unable to process what she saw. She called Madison at 6:36 p.m., to confront him about the video and confirm her suspicions that he, in fact, engaged in sexual activity with a minor student. They spoke for approximately 36 minutes. During the call, they argued, and Madison neither admitted nor denied engaging in sexual activity with K.M. By this point, Respondent was in tears and so upset and completely devastated that she experienced chest pains. After getting off the phone with Madison and while still at home, Respondent called her pastor, Theodore Sanders, for guidance. They spoke around 7:13 p.m., for approximately 14 minutes. Pastor Sanders knew Madison because his children had been members of the band at Madison’s high school. Pastor Sanders was shocked by Respondent’s allegation that Madison had engaged in sexual activity with a minor student. Due to the ramifications of such a “huge allegation,” Pastor Sanders was cautious and wanted to make sure that Respondent was certain about what she saw on the video. It is understandable that Respondent needed some period of time in which to process the situation, given that Madison was her fiancé; they had a long relationship together; and she observed Madison on her personal computer engaging in sexual activity with a minor student in their home. Sometime after 7:30 p.m., Respondent left the home. At 7:26 p.m., Respondent and Madison spoke again on the phone for approximately 38 minutes. Respondent and Pastor Sanders spoke again on the phone at 8:03 p.m. and 8:45 p.m., with such calls lasting one minute and 10 minutes, respectively. In the interim, Respondent spoke again on the phone with Madison for 43 minutes starting at 8:03 p.m. As a teacher, Respondent is a mandatory reporter of child abuse under sections 39.201(2)(a) and 1006.061(1), Florida Statutes. Respondent clearly understood that she had a mandatory obligation to report the sexual activity she saw on the video between Madison and K.M.2/ Respondent and Pastor Sanders discussed the need to report what Respondent saw. There was never any doubt that the abuse needed to be reported. Because of Respondent’s distraught emotional state at the time, they agreed that Pastor Sanders would make the call. Pastor Sanders told Respondent to get off the road and go home. Pastor Sanders then called “911” at some point after they got off the phone at 8:55 p.m., to report the abuse. At the hearing, Respondent acknowledged that there was almost a four-hour gap from when she first saw the video until the time that Pastor Sanders stated he was going to report the abuse. Respondent further acknowledged that prior to 8:55 p.m., she had never made a phone call to report the abuse to 911, DCF, or her principal. However, given that Respondent had just recently seen a video on her personal computer of her fiancé engaged in sexual activity with a minor female student in their home, it was understandable that Respondent needed time to process the situation. A less than four-hour delay from when Respondent first saw the video to Pastor Sanders’ call to 911 was immediate, and not an unreasonable delay given the unique facts of this case. Sometime before 10:00 p.m., Respondent returned to her residence. She saw Madison’s vehicle and assumed he was inside the home. According to Respondent, she knew the police were on their way. Respondent nevertheless entered the home, but she did not approach Madison in any manner. At approximately 10:00 p.m., two St. Lucie County Sheriff’s deputies arrived at the home and rang the doorbell at the front door. Madison answered the door, and was told by one of the deputies that they were there to talk to Respondent. The officer asked Respondent to step outside to speak with them and Madison was directed to step back. Madison then went back inside the home and closed the door behind him. One of the deputies remained at the front porch area while Respondent and the other deputy began to discuss what Respondent had seen on the video. At this point, one of the deputies requested to see the video so Respondent and the deputies proceeded to attempt to go back inside the front door. However, they discovered that Madison had locked the door behind him when he re-entered the home. By this point, no law enforcement officer had explored the perimeter of the home to determine whether there were any other entrances or exists from the home. Nor was Respondent asked by either deputy if there were any other entrances or exits from the home. Respondent began ringing the doorbell and knocking on the front door. In the midst of Respondent ringing the doorbell, knocking on the door, and receiving no response from Madison, the deputies asked Respondent, for the first time, if there were any guns in the home and any other entrances and exits. Respondent advised the deputies that there was a back door. Ultimately, it was determined that Madison had snuck out the back door of the home to elude law enforcement. Respondent gave the deputies permission to enter and search the home. They entered through the open back door. Once the house was cleared by the officers, Respondent and the officers went inside the home. Respondent was cooperative during the search of the home and she consented to allowing the officers to look at the computer. Respondent attempted to show one of the deputies what she saw on the computer, but nothing would come up. Ultimately, it was determined that Madison took the evidence with him when he fled the home. When officers went into the front office and wanted to collect some items belonging to Madison, Respondent told the officers that she would prefer if they got a search warrant. The officers obtained a search warrant and stayed all night searching the home until approximately 5:00 a.m. Respondent did not sleep or eat while the officers were at the home and she was visibly “shaken-up” and crying at times during the evening and early morning hours of October 19. Detective Wentz was at the home and spoke with Respondent throughout the night and early morning of October 19. At some point, Detective Wentz “flat out asked” Respondent if she knew where Madison was located. Respondent responded, indicating she did not know where he fled to. Detective Wentz made it clear to Respondent on multiple occasions during the evening of October 18 and early morning of October 19 that if she knew Madison’s whereabouts, she should let him know. Before he left the home on the morning of October 19, Detective Wentz reiterated to Respondent that she needed to contact law enforcement immediately if she had any information about Madison’s whereabouts. Respondent clearly understood this directive. At no time during the evening of October 18 and early morning of October 19 did Respondent ever volunteer information as to where she thought Madison might be. On the other hand, the persuasive and credible evidence adduced at hearing establishes that Respondent did not know of Madison’s whereabouts at any time during the evening of October 18 and early hours of October 19 after he fled the home. However, by 11:45 a.m., on October 19, Respondent discovered that Madison might be staying at the local Holiday Inn Express, based on information she received from Madison’s father. Respondent called the front desk of the hotel at 11:47 a.m. and 12:01 p.m., in an effort to confirm that Madison was indeed at the Holiday Inn. Respondent and Madison spoke at 12:09 p.m., at which time Respondent knew Madison was still at the hotel, about to check-out of the hotel. At no time between 11:47 a.m. and 1:39 p.m., did Respondent make any calls to law enforcement to let them know that Madison might be at the Holiday Inn. Master Deputy Horowitz was at Respondent’s home before 1:39 p.m. However, Respondent failed to inform Master Deputy Horowitz that Madison was at the Holiday Inn. Master Deputy Horowitz specifically asked Respondent if she knew where Madison was. Respondent responded, stating that she “did not know where his whereabouts were at the time.” Respondent spoke with Master Deputy Horowitz by telephone on two or three occasions later that afternoon. Respondent’s testimony that she told Master Deputy during one of these telephone conversations that Madison had been at the Holiday Inn is not credited and is rejected as unpersuasive. Later that afternoon, Respondent was transported to the Sheriff’s Office for an interview. During the interview, Respondent admitted she failed to inform law enforcement that Respondent had been staying at the Holiday Inn: DETECTIVE NORMAN: I know you’ve talked to several detectives throughout yesterday evening, last night, this morning, this afternoon. Probably seen more faces that you want to see. Here’s--here’s what we’re trying to figure out, where your fiancé is. Do you know where he is? MISS THOMAS: And I understand that. And like I told the officers that came to the home, it was information that was left out. And it truly was not intentional. I know the way it looked, intentionally, it made me look bad, but I honestly do not know where he is. At the time when I did speak to him, he told me that’s where he was, that he was leaving that location so I haven’t a clue. He hasn’t contacted me since the last time I spoke with him today. * * * And I mean, I’m disappointed because I made a mistake. I did. I omitted something that I didn’t realize at the time and I don’t know if it was, you know, just, you know, just did it just because I guess deep down I was maybe trying--you know, I don’t know why I didn’t say, “Oh yea, by the way this.” I don’t know why. That was so stupid. Petitioner’s Exhibit 12, pp. 5-7. Following the interview, Respondent was placed under arrest and charged with one felony count of failing to report child abuse in violation of sections 39.201(1)(b) and 39.205, Florida Statutes, and one felony count of being an accessory after the fact, in violation of section 777.03(1)(c), Florida Statutes. After Respondent was arrested, she was placed on temporary duty assignment at home with pay. On Monday, October 22, Respondent self-reported her arrest and the abuse of K.M. by Madison to her principal and the District. Subsequently, the State Attorney charged Respondent in the Nineteenth Judicial Circuit for the felony charges of failing to report child abuse in violation of sections 39.201(1)(b) and 39.205, and for the felony charge of being an accessory after the fact in violation of section 777.03(1)(c). The persuasive and credible evidence adduced at hearing establishes that Respondent did not call Madison while he was at the Holiday Inn Express to warn him so that he could elude arrest. Nevertheless, Respondent knew Madison was at the Holiday Inn at least by 12:09 p.m. on October 19, when she spoke to Madison on the telephone. Respondent failed to inform law enforcement that he was at the Holiday Inn, or that he had been at the Holiday Inn, until her interview at the Sheriff’s office later that afternoon just prior to her arrest. After a 23-hour manhunt, law enforcement officers found and arrested Madison at the Holiday Inn Express around 7:00 p.m. Respondent’s delay in informing law enforcement of Madison’s whereabouts or that he had been at the Holiday Inn Express delayed his arrest by at most, approximately seven hours. Notably, the video was discovered by Respondent, reported by Respondent to law enforcement, and Madison was arrested, within the span of approximately 25 or 26 hours. Ultimately, it was Respondent who identified the victims of Madison’s crimes. It was Respondent’s discovery of the video, her immediate reporting of the abuse, and her later identification of the victims, which led to Madison’s arrest and his conviction on all charges. The State Attorney charged Madison in the Nineteenth Judicial Circuit with 40 counts of criminal activity: 34 felony charges of sexual activity with a minor; five felony charges of sexual battery on a child in custodial relationship; and one felony charge of using a child in a sexual performance. On April 1, 2016, Madison was adjudicated guilty on five counts of sexual activity with a minor. Madison was sentenced to 15 years, consecutive, for each count. On August 7, 2013, Respondent pled no contest to both charges. On the plea form, Respondent checked section 25, which states: “I specifically believe the plea is in my best interest even though I am innocent of the charge, charges, or violations, or may have defenses to them.” After Madison was adjudicated guilty, all criminal charges against Respondent were Nolle Prossed. The persuasive and credible evidence adduced at hearing fails to establish that Respondent is guilty of misconduct in office in violation of Florida Administrative Code Rule 6A- 5.056(2)(d) or (e). The evidence does not establish that Respondent engaged in behavior that disrupted a student’s learning environment or reduced her ability or his or her colleagues’ ability to effectively perform duties. The persuasive and credible evidence adduced at hearing fails to establish that Respondent violated Florida Administrative Code Rule 6B-1.006(3)(a). The evidence does not establish that Respondent failed to make reasonable efforts to protect a student from conditions harmful to learning and/or to the student’s mental and/or physical health. Indeed, Respondent protected students from any further abuse by Madison. Respondent is responsible for Madison’s abuse of K.M. being brought to the attention of law enforcement immediately after she observed the video on her personal computer. Within about four hours after observing her fiancé engaging in sexual activity with a minor on her personal computer and processing the situation and speaking with her pastor, the matter was reported to 911, and law enforcement arrived at Respondent’s home. Madison was at the home when the deputies arrived. Notably, the deputies who arrived at Respondent’s home did not ask to speak with Madison first. Instead, they asked to speak with Respondent, and Respondent was asked to step outside the home. Madison, the alleged perpetrator of the sexual abuse, was ordered by one of the deputies to go back inside the home. Knowing full well that the suspect, Madison, went back inside the home through the front door, neither deputy undertook any efforts to determine whether Madison might have an escape route through another door. A perimeter was not established until after law enforcement officers discovered that Madison had fled the home. Respondent cooperated with law enforcement while they were at her home. She cooperated fully in the prosecution of Madison and she was instrumental in securing Madison’s criminal conviction for the abuse. Given the totality of the circumstances, Respondent’s failure to inform law enforcement during the afternoon of October 19 of Madison’s whereabouts at the Holiday Inn, which delayed the arrest of Madison by seven hours, at most, does not rise to the level of conduct sufficient to support a finding of guilt in violation of rule 6B-1.006(3)(a). The persuasive and credible evidence adduced at hearing fails to establish that Respondent violated rule 6B-1.006(3)(n). Respondent reported the abuse to appropriate authorities when Pastor Sanders called 911. She also reported the abuse to appropriate authorities when deputies arrived at her home. Respondent also self-reported the incident to her principal and the District on the following Monday, October 22. The persuasive and credible evidence adduced at hearing fails to establish that Respondent is guilty of immorality in violation of rule 6A-5.056(1). Insufficient credible and persuasive evidence was adduced at hearing to establish that Respondent engaged in conduct inconsistent with the standards of public conscience and good morals, and that the conduct was sufficiently notorious so as to disgrace or bring disrespect to Respondent or the teaching profession and impair Respondent’s service in the community. The persuasive and credible evidence adduced at hearing fails to establish that Respondent violated Policy 5.37(8)(a). Respondent “directly” reported her knowledge of Madison’s abuse of K.M. as required by the policy when Pastor Sanders called 911 within four hours of Respondent’s view of the video. The persuasive and credible evidence adduced at hearing fails to establish that Respondent violated Policy 6.301(3)(b). As to Policy 6.301(3)(b)(viii), Respondent did not engage in immoral conduct, nor was it shown that Respondent’s conduct was “indecent.” As to Policy 6.301(3)(b)(xxx), the School Board failed to prove that Respondent engaged in off-duty conduct that does not promote the good will and favorable attitude of the public toward the School District, its programs, and policies. In reaching this conclusion, it is notable that the School Board did not call any members of the public or any administrators, teachers, or other personnel as witnesses to support this claim. Moreover, the School Board does not argue in its proposed recommended order that it proved that Respondent violated Policy 6.301(3)(b)(xxx). Paragraphs 71 through 73 refer to another specific subdivision within Policy 6.301(3)(b), 6.301(3)(b)(viii). However, there is no specific argument that Respondent violated Policy 6.301(3)(b)(xxx). The persuasive and credible evidence adduced at hearing fails to establish that Respondent violated Policy 6.94(2)(a). As detailed above, Respondent reported the abuse when Pastor Sanders called 911. Respondent also reported the incident to the deputies when they arrived at her home shortly after Pastor Sanders called 911, and when she self-reported the abuse to her principal and the District on the following Monday, October 22.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Lucie County School Board enter a final order rescinding Respondent’s suspension without pay and termination, and reinstate her with back pay and benefits. DONE AND ENTERED this 23rd day of May, 2017, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 2017.
The Issue Whether Respondent engaged in the conduct (to: wit: "conduct unbecoming a School Board employee" and "misconduct in office") alleged in the Notice of Specific Charges? If so, whether such conduct provides the School Board of Dade County, Florida, just or proper cause to take disciplinary action against him? If so, what specific disciplinary action should be taken?
Findings Of Fact Based upon the evidence received at the formal hearing in this case, and the record as a whole, the following Findings of Fact are made: The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Dade County, Florida. Respondent is now, and was at all times material to the instant case, an employee of the School Board occupying a school monitor position. He currently is under suspension as a result of the incident described in the Notice of Specific Charges. Other than this suspension, he has had no formal disciplinary action taken against him during the period of his employment with the School Board. 1/ Respondent's employment with the School Board began on March 10, 1993, when he was hired to fill an hourly school monitor position at John F. Kennedy Middle School (JFK). At the beginning of the 1993-1994 school year, Respondent became a full-time school monitor at JFK. He remained in that position until he was administratively reassigned in March of 1995, following the incident which led to the initiation of the instant disciplinary proceeding. As a school monitor, Respondent is a member of a collective bargaining unit represented by the United Teachers of Dade (UTD) and covered by a collective bargaining agreement between the School Board and UTD, effective July 1, 1994, through June 30, 1997 (UTD Contract). Article V of the UTD Contract addresses the subject of a "employer rights." Section 1 of Article V provides, in part, that the School Board has the exclusive right to suspend, dismiss or terminate employees "for just cause." Article VIII of the UTD Contract addresses the subject of a "safe learning environment." Section 1, paragraph A, of Article VIII provides as follows: A safe and orderly learning environment is a major priority of the parties. Such an environment requires that disruptive behavior be dealt with safely, fairly, consistently and in a manner which incorporates progressive disciplinary measures specified in the Code of Student Conduct. Section 1, paragraph D, of Article VIII provides, in part, as follows: The parties recognize the potential for difficult circumstances and problems related to the use of corporal punishment. Accord- ingly, the parties agree that such punishment shall be prohibited as a disciplinary option, and further agree to act affirmatively in continuing to identify and implement more effective alternatives for dealing with student behavior. Article XXI of the UTD Contract addresses the subject of "employee rights and due process." Section 1, paragraph B, of Article XXI provides, in part, that "[d]ismissals and suspensions shall be effected in accordance with applicable Florida statutes, including the Administrative Procedures Act (APA)." Section 3, paragraph D, of Article XXI provides that educational support personnel who have completed their probationary period may be dismissed for just cause, which includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality and/or conviction of a crime involving moral tur- pitude. Such charges are defined, as appli- cable, in State Board Rule 6B-4.009. Section 3, paragraph F, of Article XXI provides, in part, that such an educational support employee is entitled to an appeal hearing on the Superintendent's recommendation that he or she be terminated and is further entitled to be served by the School Board with a Notice of Specific Charges prior to the hearing. Valerie Carrier is now, and was at all times material to the instant case, the principal of JFK. As principal, Carrier is responsible for the overall operation of the school. It is her obligation to take the necessary measures to maintain a safe environment for the school's students. There is a security staff at the school, comprised of school monitors, that assists Carrier in carrying out this responsibility. According to their job description, the school monitors on the school's security staff have the following "basic objectives" and "job tasks/responsibilities:" BASIC OBJECTIVES Under general direction from the school principal, he/she performs duties to monitor student activity in promoting and maintaining a safe learning environment and insures that appropriate standards of conduct are followed. JOB TASKS/RESPONSIBILITIES Visually observes student behavior during school hours, on school property. Reports serious disturbances to the school admini- stration and resolves minor altercations. Physically patrols all school buildings, grounds, and determines reason for the pre- sence of outsiders. Stops and questions all students not in class during class time. Monitors parking lots and student gathering areas (before, during and after school hours). Reports any safety or security problems to the administration. Performs any other duties set by the school principal or his/her designee. Carrier assigns each school monitor a post at which the monitor performs these job duties. If a monitor observes, from his or her post, a student engaging in inappropriate behavior, the monitor may attempt to verbally redirect the student, but the monitor is not permitted to impose consequences for the student's behavior. Each monitor is issued a hand-held radio to be used for communicating with other school personnel. If a misbehaving student fails to comply with a monitor's verbal instructions, the monitor is required to use the hand-held radio to advise an administrator of the situation. Joshua Cummings was a student at JFK during the 1994-95 school year. He frequently engaged in inappropriate behavior. Carrier gave the members of her staff, including Respondent, special instructions regarding how they should respond to acts of inappropriate behavior on Joshua's part. 2/ She told them that they should report any such acts directly to her or, in her absence, her designee. On March 17, 1995, during the first lunch period, Respondent was assigned to a post on the entrance courtyard side of the chain link double-gate that separates the entrance courtyard from the cafeteria spill-out area. The cafeteria spill-out area is, as its name suggests, an area outside the cafeteria where students gather after eating lunch and wait for their lunch period to end. There is a school monitor posted in the cafeteria spill-out area near the door that students use to exit the cafeteria and enter the spill-out area. Another school monitor is stationed on the other side of the exit door inside the cafeteria. Pursuant to the standard operating procedure at the school, the chain link double-gate between the entrance courtyard and the cafeteria spill-out area remains closed and locked until the end of the lunch period, when the students are picked up by their teacher. At the teacher's request, the school monitor manning the post on the entrance courtyard side of the double-gate unlocks (with a key) and then opens the double-gate 3/ and lets the students waiting in the cafeteria spill-out area go into the entrance courtyard to meet their teacher. If it becomes necessary for a student in the spill-out area to use the restroom before the end of the lunch period, the student must reenter the cafeteria, obtain a pass from an administrator 4/ and then leave the cafeteria through the cafeteria's main entrance. Students are not permitted to use the double-gate to exit the spill- out area before the end of the lunch period. On March 17, 1995, Joshua Cummings had lunch during the first lunch period (which began at approximately 11:30 a.m. and lasted approximately 30 minutes). Jean LaDouceur and Dorys Cadet were among the other students who had lunch during the first lunch period on March 17, 1995. Approximately 100 or more of these students, including Joshua, Jean and Dorys, were in the cafeteria spill-out area, prior to the end of the first lunch period on this date, when Joshua started shaking the chain-link double- gate and yelling at Respondent to unlock and open the gate so that he (Joshua) could go to the restroom (which was located off the entrance courtyard near the gate). Respondent was in the area of his assigned post in the entrance courtyard sitting on the steps leading to the school auditorium. He got up and, as he walked toward the double-gate, he told Joshua that Joshua had to wait until the end of the period if he wanted to exit the spill-out area through the double-gate. Joshua apparently did not want to wait. He continued to shake the double-gate and shout obscenities at Respondent. Respondent responded in an unseemly and inappropriate manner that evinced a reckless disregard for the safety of Joshua and the other students in the spill-out area who were around him. Instead of continuing his efforts to verbally redirect Joshua or radioing for assistance, Respondent, from his position on the courtyard side of the double-gate, responded to Joshua's misbehavior by angrily hurling his hand-held radio (which had a battery pack attached to it) at the gate near where Joshua (who was on the spill-out area side of the gate) was standing. The radio hit the gate and shattered. Jean and Dorys were sitting on a picnic table in the spill-out area approximately twenty feet from the double-gate. There were several other students on or near the table with whom Jean and Dorys were conversing. The battery pack that had been attached to Respondent's hand-held radio before Respondent threw the radio at the gate wound up striking Jean on the right side of his forehead while he was sitting on the picnic table. (It apparently travelled through a space in the center of the gate.) Jean started bleeding. Accompanied by Dorys, Jean went to see Carrier to report what had happened. (To get to Carrier's office, which is off the entrance courtyard, approximately 20 feet from the double gate, they had to reenter the cafeteria because the double-gate was still locked.) Joshua also went to see Carrier. (He had been "nick[ed]" by a piece of Respondent's shattered radio.) After speaking with Jean and Joshua, Carrier called fire rescue. Fire rescue subsequently arrived on the scene and treated Jean's wound. Jean was advised by the paramedic who treated him to have a physician close the wound with stitches. Jean, however, did not seek further medical attention. (The wound eventually healed, but Jean has a small scar on the right side of his forehead as a result of his injury.) Carrier also called Jean's and Joshua's parents. After Jean's and Joshua's parents arrived at school, Carrier met with Respondent to discuss the incident. Respondent told Carrier what had happened. He went with Carrier to the entrance courtyard where he had been stationed and described how and where he had thrown his hand-held radio. Carrier picked up the pieces of Respondent's hand-held radio that were lying on the ground near the double-gate. Respondent also freely and voluntarily, at Carrier's request, prepared a written statement on the day of the incident in which he admitted that earlier that day, at about 11:53 a.m., in response to Joshua's yelling and kicking the double-gate, he had thrown his radio at the gate and that "parts of the radio [had gone] thr[ough] the gate and nick[ed Joshua]." After hearing the students' and Respondent's accounts of the incident, Carrier had legitimate concerns regarding Respondent's ability to effectively carry out his responsibilities as a school monitor. Respondent's conduct had jeopardized the health, safety and well-being of the very individuals it was his job, as a school monitor, to protect. Following the completion of an investigation of the incident, the School Board's Superintendent of Schools recommended 5/ that the School Board suspend Respondent and initiate a dismissal proceeding against him. The School Board took such recommended action at its July 12, 1995, meeting.
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 and dismissing him as an employee of the School Board of Dade County, Florida. DONE and ENTERED in Tallahassee, Leon County, Florida, this 19th day of February, 1996. STUART M. LERNER, 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 19th day of February, 1996.
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
