The Issue Whether the employment screening standards in Chapter 435, Florida Statutes, can, without more, serve as the basis for the Petitioner's terminating the Respondent's employment as a teacher. If so, whether Respondent's actions were sufficient to warrant termination of his employment.
Findings Of Fact Based on the stipulations of the parties and on the contents of Exhibits 1 through 4 attached to the Agreed Motion to Request Submission of Briefs in Lieu of Hearing, the following findings of fact are made: At all times material to these proceedings, Mr. Ano was employed by the School Board as a teacher, a position that he has held for approximately 21 years. The facts and events stated in the Palm Beach County Sheriff's Office Offense Report prepared April 5, 2002,3 led to the arrest of Raymond Ano and his wife, Toby Ano, late on the evening of March 28, 2002, and the early morning hours of March 29, 2002. An Amended Information was filed on September 18, 2002, with the Criminal Division of the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, charging Raymond T. Ano with battery on a police officer, resisting an officer with violence, and defrauding an innkeeper. On October 31, 2002, Mr. Ano pled guilty to the offenses of battery (lesser), resisting an officer with violence, and defrauding an innkeeper. In an Order entered November 5, 2002, the court withheld adjudication of guilt and sentenced Mr. Ano to probation for 18 months for defrauding an innkeeper and for resisting an officer with violence and for 12 months for battery, with the sentences to run concurrently. Mr. Ano did not report his arrest and guilty plea to the School Board; however, this violation of School Board policy is not, of itself, sufficient to justify termination of his employment.4 On July 16, 2004, the School Board voted to suspend Mr. Ano without pay and to terminate his employment, based on Mr. Ano's plea of guilty to the charge of resisting an officer with violence. The School Board followed its procedural rules in investigating this matter and in voting to terminate Mr. Ano's employment. An Amended Petition for Suspension without Pay and Dismissal from Employment was issued July 30, 2003, in which the School Board alleged that there was just cause for Mr. Ano's suspension and termination based on his failure to report his arrest and his plea of guilty to an offense enumerated under Chapter 435, Florida Statutes, specifically, resisting arrest with violence, in violation of Section 843.01, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Broward County, Florida, enter a final order: Finding that Mr. Ano's plea of guilty to a violation of Section 843.01(2)(gg), Florida Statutes, does not provide a legally-sufficient basis for terminating Mr. Ano's employment with the School Board of Broward County, Florida; Reinstating Mr. Ano's employment with the School Board of Broward County, Florida; and Paying Mr. Ano his back salary from the date of his suspension without pay. DONE AND ENTERED this 29th day of June, 2004, in Tallahassee, Leon County, Florida. S 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 29th day of June, 2004.
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.
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.
Findings Of Fact Roland C. Foote, Respondent, holds Florida teaching certificate number 107445, Graduate, Rank II. He served as Principal of Webster Elementary School (formerly Webster Junior High), hereinafter called Webster, from 1968 until he was replaced in late 1978. He has been employed in the Florida school system for more than twenty-five years. On May 8, 1978, Respondent sent a letter (Exhibit 10) to the Sumter County School Superintendent recommending the suspension of James Constable, one of the teachers at Webster. This was referred to the PPC for investigation by the Superintendent. By letter dated May 16, 1978 (Exhibit 12) some 11 teachers at Webster signed a letter to Ms. Angela J. Peterson, an investigator for the PPC, requesting an audience to discuss several urgent matters relating to Webster. Constable was one of the signers of this letter. Some of those who signed were aware the purposes was to complain of the manner in which Respondent ran Webster; others thought the purpose was to assist Constable. The first meeting with the PPC representative was held on June 6, 1978. Some eight teachers attended this meeting, discussed with Ms. Peterson several situations of which they were aware involving possible improper conduct by Respondent, and agreed to provide PPC with testimony and facts necessary to prepare charges against Respondent. Numerous additional meetings were held by this group, some with PPC representatives and others without PPC representation, for the purpose of reconstructing the dates of the incidents complained of and to ascertain who had knowledge of the incidents. Prior to discussing the specific charges preferred against Respondent and the evidence relating thereto, additional background information gleaned from the testimony and the exhibits admitted into evidence is first presented. Sumter County is predominantly a small-farm agricultural area as opposed to an urban society, with the socioeconomic level below that of most of the larger counties in Florida. In addition to those permanent residents who live and work on farms, there are migrant workers who appear at harvest time. The population mix is about 1/3 black and that is also the school population mix. Several of these students are classified as educationally mentally retarded and qualify for supplemental education programs. About 7 of the 25 teacher faculty at Webster are black and no evidence of any faculty racial tensions or frictions was presented. Friction has existed at Webster between some faculty members and Respondent for a long time. In school year 1974-75 a special workshop was conducted at Webster to improve the communications between the faculty and the administration. The workshop met with mixed success. Some of the teachers at Webster mad minor complaints to various supervisors over the years but none was ever willing to reduced a complaint to writing and present it to the Superintendent. As a result, the Superintendent on one occasion told the faculty at Webster that he was tired of hearing complaints about Webster and for them to work out their problems at the school. The principal at smaller schools, where assistant principals or deans are not provided, is the primary as well as final, authority in the discipline of students and in particular in the administering of corporal punishment. In addition to a wooden paddle or two, Respondent had provided himself with a leather strap which he also used to administer corporal punishment. The strap used by Respondent was admitted into evidence as Exhibit 20. At the time it was used, a metal slat was inserted between the two pieces of leather comprising the strap to provide additional stiffness. The addition of this metal slat did not make the strap a more sinister punishment tool. Straps similar to Exhibit 20 are sold in tack shops and are called bats. They are approximately 18 inches long and are comprised of two pieces of leather one-eight inch thick, sewed together. The bat is about one inch wide through the first foot of its length and then flares out to two inches wide at the end. The two pieces of leather at the flared end are not sewn and they clap together making a louder noise when something is struck with the bat than would occur with only a single piece of leather. It is this flared part of the bat that contacts the backside of a pupil who is administered corporal punishment. This strap or bat will cause less injury to a student than a wooden paddle if each is used with the same degree of force. While the immediate sting from the bat may be as great as the sting from a paddle, the former is much less likely to bruise a child than is the paddle. Some of the implications of the material allegations, as well as the opinions of some witnesses, are that the use of a leather strap for administering corporal punishment is itself cruel and unusual. So long as corporal punishment is authorized, these implications and opinions are without foundation. The material allegations preferred against Respondent will be discussed in chronological order. It is to be noted that the two earliest incidents were familiar to many people at the time they occurred, but no action was taken until 1978. Material Allegation 3 alleges that on or about March 1, 1972 at 8:30 a.m. Larry James, a ten-year old black student at Webster, received an eye injury resulting in the loss of sight in the injured eye when a nail he was attempting to drive was deflected by the hammer and became impaled in his right eye. James was attempting to repair a loose leg on a chair which his teacher had told him to get the custodian to fix. While the teacher was out of the room, James attempted to repair the chair and the accident ensued. James pulled the nail from his eye and ran to the bathroom. His teacher, Mrs. Batten, took him to the office. Respondent was not at school on March 1, 1972 and did not see James until after James returned to school several days later. Petitioner presented five witnesses, including James, the doctor who treated him, his mother, and Mr. and Mrs. Donahue, who were teachers at Webster to whom James was taken by the teacher, Mrs. Batte. None of these witnesses saw Respondent on the day of the accident. James was not sent to a doctor and spent most of the day in Mrs. Donahue's class until the school bus took him home, presumably after 2:45 p.m. His mother testified she had James taken to a doctor that day, which she identified as 2 March, two days after her youngest child was born on 28 February 1972. 1972 was a leap year and February that year contained 29 days. James was referred to the hospital in Ocala by his family doctor, Dr. Wiley. The medical records show James was admitted at 3:56 p.m. on March 2, 1972. It is doubtful James could have reached home on the bus before 3:15 p.m. or reached Dr. Wiley's office before 4:00 p.m. The only time and date certain was the date and time admission to the hospital. The parties stipulated that school records would show Larry James was absent from school on March 2, 3 and 4, 1972. Accordingly, the accident obviously occurred March 1, 1972. The evidence was undisputed that on March 1, 1972, Respondent Foote was in Leesburg attending the closing on the residence he was purchasing. Respondent's testimony to this effect was corroborated by the bank closing officer and documents executed at closing (Exhibit 43). Respondent testified that he first learned of James' injury the following day when he returned to school. Material Allegation 11 alleges that in school year 1971-72 or 1972-73 Respondent struck Louise Weddell, a student, in the face knocking her to the ground. The date of the incident was not established with any degree of certainty. Louise Weddell, now 20 years old, testified that she was 15 and in the seventh grade when the incident occurred. According to Louise, she was fighting with another girl outside the building when Respondent came out with a paddle in his hand to break up the fight. Louise testified that Respondent slapped her with his left hand, knocking her to the ground; that she got up, called him a black mother fucker and ran away. She denied spitting in Respondent's face. For running away she was suspended for 10 days. Several witnesses observed the incident. All except Respondent testified to the slapping and one saw Foote wipe his face with his handkerchief after Louise ran away. Respondent's testimony was that while he was stopping the fight Louise called him the name and spit in his face. He admitted only "pushing" her in the face with his left hand. Material Allegation 10 alleges that during the 1974-75 school year Respondent paddled Gralyn Dorsy numerous times on the buttocks, legs, sides and hips while calling him "a sorry nigger on food stamps and welfare." The evidence is undisputed that Respondent paddled Dorsey several times during that school year (Exhibit 45). The incident leading to the allegation occurred on March 3 1975 when Dorsey was brought to Foote by Mrs. Jones for a discipline problem she did not know how to handle. It appears that the previous day while Foote was away from school Dorsey had committed some vulgar act, the nature of which was not disclosed at the hearing, with another boy in the bathroom. Mrs. Jones expected Respondent to counsel Dorsey. Instead, Dorsey was given a paddling. Mrs. Jones does not remember if James Constable was also present. She testified that she counted 13 licks. Exhibit 45, the paddle list, shows 5 licks given to Dorsey. James Constable testified he also observed the paddling of Dorsey and that after Dorsey had been given 2 or 3 hard licks he started to get up. Respondent pushed him back over the chair saying "I'm not through with you, boy", appeared to lose control and began flailing away while calling Dorsey a sorry nigger on food stamps and welfare. According to Constable, Dorsey received 12 or 13 licks and, while squirming around, some of the blow landed on the side of Dorsey's hip and one landed on his hand. Mrs. Jones was upset over the severity of the paddling. Neither she nor Constable made a complaint until after May, 1978. The school secretary, Doris Brank, whose desk was just outside Foote's office, recalls two paddlings of Dorsey, one at which he was given 3 licks. She never heard Respondent make racial slurs to children while disciplining them. Material Allegation 2 alleges that in the spring of 1976 Herbert Brown, a student, injured his ankle on the playground before school and Respondent wouldn't allow Mrs. Miriam Jones, his teacher, to take him home or to the doctor but required he remain in school. On 2 February 1976 Herbert Brown, a twelve-year old black student, injured his ankle while playing before school. Mrs. Jones took roll call in Herbert's room and learned his ankle was hurting him. She took him to Respondent and asked permission to take him home. Respondent examined the ankle, saw it was slightly swollen and had his secretary, Mrs. Branch, call the phone number on Herbert's records. No answer was received. Respondent refused Mrs. Jones' request to take Herbert home. The ankle continued to swell. Mrs. Branch also called the doctor, whose office was closed. When school was out, Mrs. Jones drove Herbert home. His mother took him to Dr. Lehrer, who examined Herbert's ankle in the emergency room at the hospital and diagnosed the injury as a sprain. No medication was prescribed, as the pain did not appear sufficient to warrant treatment. The doctor has no independent recollection of the incident but, because he prescribed no medication, would assume the sprain was not severe. Material Allegation 9 alleges that on or about January 6, 1977 Respondent paddled Greg Christian while stating that people in the "subs" did not tell "this white man" what to do. When taken to Respondent for disciplining by his teacher, Molly Jo Teters, Greg told Respondent his brothers said Foote was not to paddle him any more and to run home if he did. Mrs. Teters testified that Respondent, while paddling Greg, told him "people in the subs don't tell this white man what to do." Greg's testimony was that following his remarks about Foote not paddling him, Foote held up a clenched fist saying, "This is black power", covered it with his right hand and said, "This is white supremacy." Daniel Lee Christian, Greg's father, recalled Greg telling him of the paddling and of Foote's gestures and remarks about white power over black power. Foote denied all allegations of using racial slurs to students while disciplining them or otherwise. Material allegation 7 alleges that on May 13, 1977 Respondent paddled Joanne Williams with a leather strap, hitting her on her bottom and later on the front of her body as she turned; and that, during the paddling called her a nigger and made comments about welfare, free lunches and food stamps. Mrs. Simpson, Joanne's teacher, took Joanne to Foote for discipline because she had stolen money from another student, spent it and failed to repay the money as directed by Mrs. Simpson. Foote had her bend over a chair and paddled her with the leather strap. After the first blow, Mrs. Simpson testified Joanne turned over and Foote continued to strike her on the front portion of her body while appearing to lose control. During this time, Mrs. Simpson testified, he said Joanne's family was on food stamps, free lunches and had everything given to them and when not given, they stole. Exhibit 45 shows 4 licks awarded to Joanne by Foote. Foote denies making the remarks and Mrs. Branch, who was immediately outside the office, heard no such remarks made. Mrs. Simpson was upset following the incident and vowed never to take another child to Foote for discipline. However, on April 25, 1978, she sent one of her students, James Jackson, to Foote for discipline after Jackson had been paddled by her and continued his misconduct. Material Allegation 8 alleges that in the fall of 1977 Respondent paddled Bobby Clemons with a leather strap and, while so doing, called him a "no-good nigger". Nancy Gridley took Bobby Clemons to Foote for authority to discipline him for being a "smart-mouth". While talking to Bobby, a ten-year old black student whose mother is a teacher at Webster, Mrs. Gridley testified Foote became angry, picked up his strap and gave Bobby three licks while yelling that Bobby was a nigger who would end up in prison if he kept getting into trouble. Bobby confirmed that he was called a nigger by Foote and told he would end up in jail if his conduct didn't improve. Mrs. Clemons was told of the incident by Mrs. Gridley and when she asked Bobby about it, he confirmed the incident. All witnesses agreed that Bobby was a discipline problem. Respondent acknowledged the paddling, denied the racial slur and testified he told Bobby he needn't expect to get away with misbehavior because his mother was a teacher. Mrs. Branch confirmed Foote's testimony. Material Allegation 6 alleges that Respondent on February 22, 1978 paddled Jeannie Barnes, a fifth grade student, with a leather strap in the library in front of students. James Constable witnessed the paddling, which consisted of three blows with the leather strap. The paddling took place in the library which was serving as the temporary office while the old offices were being renovated. Constable's testimony that a class was being held in the library at the time constituted the only testimony that classes were held in the library. Respondent recalled no other student being present when this punishment was administered. Material Allegation 5 was that during February or March, 1978, Respondent paddled one of the Roper twins in the workroom of the library without an adult witness present, striking the student on the sides, back and legs. Mrs. Newell testified she came into the room while Respondent was paddling Landis Roper with a paddle. Landis was lying on the floor, Foote had hold of his wrist and blows were landing on back, legs and arm. She also testified that Roper was screaming his head off and threatening to kill himself if Foote didn't stop. As Mrs. Newell walked in, Mrs. Stevens and Mrs. Hodges were exiting the room. Mrs. Newell is the only witness to testify the other Roper twin was also present. Mrs. Newell took Landis outside after the paddling. Mrs. Stevens was in the library when Foote came in, got his paddle and paddled Roper. She was in the room while the paddling was going on but didn't watch. She was upset because so many licks (about 10) were given to a special education child. Mrs. Hodges did not testify that she was in the library at any time during the Roper incident. Both Respondent and Mrs. Branch recalled the paddling of Roper and that three licks were given. Landis had been reported for fighting in the cafeteria that morning by Mrs. Carter, whose glasses he had accidentally knocked off while swinging at his opponent. Mrs. Carter inquired later if Mr. Foote had seen Landis and was advised no. After lunch Foote sent for Landis, and after talking to him a short while started to paddle Roper. When several children appeared in the hall, Foote then took Roper into the workroom, leaving the door open while the paddling took place. Mrs. Branch testified no other child was present. Foote's testimony was that he gave Roper three licks with the paddle just inside the workroom door and that no other child was present. Material Allegation 4 alleges that on May 16, 1978 Respondent administered corporal punishment to Kenny Robertson with a leather strap without an adult witness present. Kenny Robertson testified that he was paddled with a leather strap by Foote for fighting, that nobody else was in the room, and that Mrs. Branch was at her desk just outside the door. Molly Jo Teters testified she was in outer office, did not see Mrs. Branch, but heard Foote yell at Kenny that he was not to pull girls off bars and to keep his shirt tucked in. Shortly after the last blow she walked by the door, saw Foote returning the strap to his desk and saw only Foote and Robertson. Mrs. Sellers had bus duty May 16, 1978 and saw a boy whose name she didn't know push a girl off the monkey bars. She took him to Foote and observed the paddling. Mrs. Branch testified that Mrs. Sellers brought Kenny Robertson to Foote because of some problem on the playground and that both she and Mrs. Sellers witnessed the paddling given Robertson. Mrs. Branch didn't see Mrs. Teters in the office at that time. Material Allegation 12 alleges that in May 1978 Respondent paddled Ronald Hise, using excessive force, in the lunchroom in front of second and third grade classes. Frances Simpson witnessed Foote paddle Ronnie Hise in the lunch room in May 1978 after a teacher had told Foote Ronnie was misbehaving in the lunch line. Foote picked up his paddle, pulled Ronnie out of the line and gave him three "hard" licks. Theresa Lee, another teacher, also witnessed the Hise paddling. Her version was that another teacher brought Ronald to Foote for discipline because he misbehaved in the lunch line and Foote paddled him there. She thought the blows "too severe" for the "very thin, pale child." Foote acknowledged that from time to time he has paddled children in the lunchroom because he found that this procedure often had a therapeutic effect in calming down a noisy lunchroom. Material Allegation 1 alleges that in May 1978 Herschell Bellamy seriously injured his eye during physical education in the afternoon, that his mother was notified and was coming to pick him up, but Respondent instructed he be put on the school bus to go home at the end of the day. Herschell Bellamy fell on the monkey bars near the end of his physical ed period and cut his eyelid. His P.E. teacher, James Constable, took him to his office, cleaned and bandaged the eye using a large eye patch. Constable then went to the office with Herschell, who remained there, got Herschell's folder and called the phone number there listed for emergencies, which phone belonged to the next-door neighbor. The neighbor advised that she would tell Herschell's mother to come for him. The neighbor later called back to the school office to advise that Herschell's mother was enroute to pick him up. James Constable, Patricia Newell, and Dorothy Stevens all testified that shortly before time for the buses to leave they were in the office with Herschell Bellamy and Foote, from his inner office, asked what the commotion was about. Someone advised him that Bellamy had hurt his eye. Foote then asked if he was white or black and when told Herschell was black, said "Put him on the bus". Foote's testimony, corroborated by Mrs. Branch, was that he returned to school from a meeting in the county office just at the bell was ringing to end the school day. As he entered the building he passed a lady taking a small boy with a bandage over his eye out of the building. He denied making any comment regarding Herschell's race. Herschell and his mother both testified. When Herschell fell on the monkey bar and hurt his eye, Coach Constable put a bandage on it and took him to the office where he waited a long time before his mother came to pick him up. He didn't hear Mr. Foote say anything but testified Foote was in the office when his mother came to pick him up. Herschell's mother testified she came to school in response to the message that her son had been hurt and that she arrived just as the children were about ready to get on the bus to go home. She saw Foote, but he said nothing to her or look at Herschell. She took Herschell to Dr. Wiley, who treated Herschell for a lacerated upper eyelid, a minor injury. Wayne Ham, a supervisor in the Sumter County school system, acknowledged that he had received complaints from Mrs. Simpson, Mrs. Jones and Mrs. Teter regarding Foote's use of the leather strap to discipline children. They considered use of the strap constituted too severe punishment. Ham doesn't recall if he passed these complaints to his superior. He denied telling Mrs. Teter not to show to anyone a written complaint she had prepared. Bernard Shelnutt, the other Sumter County supervisor, who functions similar to Ham, had never heard a complaint against Foote of brutality, failure to get medical attention for children, or use of racial slurs. In addition to denying the allegations preferred against him, Respondent presented numerous witnesses who testified to Foote's good reputation in the community, to their satisfaction with the job Foote was doing as principal, to Foote's administrative capabilities, and to lack of knowledge of any irregularities at Webster until the charges here considered were published in the newspaper. Two principals of Orange County schools, for whom Respondent had worked before coming to Webster, attested to his capability and competence as well as to their conclusion that the job of principal is the most difficult in the field of education. The principal is the one primarily responsible for the discipline in the school and the manner in which punishment is administered. Corporal punishment policy is usually left to the sound judgment of the principal at each school, subject however to statutory restrictions, and prescribed school board policies. None of the four elected Sumter County school board members who testified on behalf of Respondent had ever received any complaints against Respondent, prior to the investigation by the PPC, involving medical neglect, severe punishment or racial slurs, nor had complaints been received from the black community. They considered Respondent a good administrator with a good reputation. The only complaints they had received involved minor administrative matters such as school bus schedules, and teacher complaints that Respondent worked them too hard. Several witnesses for Petitioner admitted that they were not happy with Respondent's requirement that all teachers attend PTA meetings unless they had a good excuse for being unable to do so. Eighteen teachers, former teachers, substitute teachers, and speech clinician called by Respondent had never seen or heard Respondent medically neglect, abuse, or use racial slurs to students at Webster. Most, if not all of these witnesses, had never hear of the complaints against Respondent before reading them in the newspapers shortly before the fir trial. The chiefs of police of Webster and Center Hill attested to Respondent's good reputation in their communities and that they had never received a complaint that Respondent had abused a student. Five parents whose children now attend or had attended Webster testified that Respondent had provided proper treatment to their children, their children had never complained of medical or physical mistreatment or abuse by Respondent, and that when children had been neglected by other teachers a call to Respondent corrected the situation. Two employees, other than Mrs. Branch, who had worked at Webster for many years had never seen or heard Respondent medically neglect, physically abuse, or direct racial slurs towards children at Webster. They first became aware of complaints when they read in the news that charges had been preferred against Respondent. No direct testimony was presented that the misconduct here alleged to have been committed by Respondent seriously reduced his effectiveness in the school system. It is perhaps significant that approximately one week in May 1978 (May 8- 16) provided one-third of the twelve material allegations preferred against Respondent. Coincidentally, Respondent's letter recommending James Constable for dismissal was dated 8 May 1978 and the letter to the PPC signed by eleven teachers was dated May 15, 1978. It is further noted that two of the material allegations involve incidents occurring 6 or 7 years ago.
The Issue Whether Respondent committed the violations alleged in the Amended Notice of Specific Charges and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida (including, among others, Ludlam Elementary School (Ludlam)), and for otherwise providing public instruction to school-aged children in the county. Respondent has approximately 30 years of teaching experience, and has been a classroom teacher for the School Board since December 1999. As a School Board employee, she has not been the subject of any disciplinary action aside from the 30-workday suspension that is being contested in the instant case. Respondent is currently co-teaching a kindergarten class at Ludlam, the only school at which she has taught during her employment with the School Board. For the eleven years she has been at Ludlam, Respondent has been a kindergarten teacher exclusively, except for the 2009-2010 school year, when she taught second grade. Among the second graders in her class that school year were A. H., A. P., and J. M.3 Dr. Georgette Menocal is now, and was during the 2009- 2010 school year, the principal of Ludlam. At a Ludlam faculty meeting, attended by Respondent, that was held at the beginning of the 2009-2010 school year, Dr. Menocal gave a PowerPoint presentation in which she reviewed, for those in attendance, key provisions of Ludlam's 2009-2010 Faculty/Staff Handbook (Handbook), including the following excerpt relating to "Classroom Management Procedures": CLASSROOM MANAGEMENT PROCEDURES Teachers should make every effort to handle routine classroom discipline problems by conferring with the student, contacting parents, and referring the student to the counselor. If a serious violation of school rules has occurred, a "Student Case Management Referral Form" should be completed and forwarded to the administration. A response will be forthcoming. * * * It is the teacher's responsibility to manage his/her class and to follow the procedures outlined in the Code of Student Conduct. All level 1 behaviors are to be addressed by the teacher. Most level 2 behaviors can be addressed by the teacher and/or counselor. Level 3 (and above) behaviors require a referral to an administrator. Each student referral must be made on a Student Case Management (SCM) referral form. The disciplinary policies of the school should be administered on a consistent basis throughout the school. The CODE OF STUDENT CONDUCT should be reviewed with students at the beginning of each school year. NEVER - Use corporal punishment of any kind (hitting, tapping or tying students, having students stand for long periods of time, etc.)[4] The School Board's Code of Student Conduct-Elementary (Code) (which Ludlam teachers were directed by the Handbook to "follow") provided, among other things, that "Level 3 . . . behaviors" included "Fighting (serious)" and that "Fighting (serious)": Occurs when two or more students engage in physical force or violence against each other and they become so enraged that they do not stop when given a verbal command to do so, OR physical restraint is required, AND/OR someone is injured to an extent that requires immediate first aid or medical attention. Any serious fighting incident that causes injury or requires medical attention would result in a suspension. If the principal or designee determines that one student or a group of students attacked someone who did not fight back, the aggressors should receive punishment for battery, aggravated battery, and/or bullying, depending on the facts, and will likely be arrested. Otherwise, administrators will report all other incidents involving mutual participation as Fighting (Serious) without regard to who was the original aggressor. On February 25, 2010, during a mathematics lesson Respondent was teaching, two female students in her class, A. H. and A. P., were involved in an altercation in the back of the classroom, during which A. H. hit A. P. with a book. Respondent intervened and separated the two girls by physically restraining A. H., who struggled to escape Respondent's grasp. As she was holding A. H., Respondent instructed A. P. to hit A. H. back. A. P. did as she was told, striking A. H.5 with a book.6 The incident (Incident), which lasted approximately a minute, was witnessed by J. M., who was in her seat and had turned around to observe the fracas.7 Notwithstanding that she had physically restrained A. H., Respondent did not report the Incident to the school administration (via submission of a completed Student Case Management referral form, as required by the Handbook, or through any other means).8 Following the Incident, the students in Respondent's class left her classroom and went to their Spanish class. Ludlam's assistant principal was subsequently called to the Spanish class. She removed A. H. and A. P. from the class and brought them to Dr. Menocal's office, where Dr. Menocal spoke to them separately. Both A. H. and A. P. told Dr. Menocal about their scuffle earlier that day in Respondent's classroom and how, during this tussle, Respondent had directed A. P. to hit A. H. while A. H. was being held by Respondent. A. H. and A. P. gave Dr. Menocal, at Dr. Menocal's request, the names of three other students who may have witnessed the Incident. The three students9 were brought, separately, to Dr. Menocal's office and questioned by her. Each of the three students confirmed what A. H. and A. P. had told Dr. Menocal. Dr. Menocal asked A. H., A. P., and two of the three other students to whom she had spoken to each write a statement in their own words describing what had happened in Respondent's classroom earlier that day.10 They wrote their statements, separately, in Dr. Menocal's presence. In her written statement, A. H. stated, in pertinent part, "Ms. Grey hold me and then Ms. Grey told her [A. P.] to hit me and then she hit me on my back . . . ." A. P. and the two other children each wrote that Respondent had "let" A. P. "hit" A. H., but they did not specifically state in their written statements that Respondent had told A. P. to strike A. H. After receiving these written statements from the students, Dr. Menocal contacted the School Board police and the Department of Children and Family Services (DCFS) to report what the students had related to her about the Incident. That same day, February 25, 2010, a School Board police officer, Officer San Antonio, was dispatched to Ludlam. Officer San Antonio first spoke with Dr. Menocal and then with various students and Respondent. The following morning, at around 9:00 a.m., Respondent's second grade class put on a performance in the school cafeteria as part of a black history month event attended by parents (Performance). Following the Performance, Respondent invited the parents of her students to follow her and the class back to her classroom so that she could have a brief meeting with them (Post-Performance Meeting). Respondent began the meeting by praising the students' Performance. This praise, however, was short-lived, as Respondent started to complain to the parents about the students' "misbehaving" and "acting up" in class. As an example, she cited the altercation the day before between A. H. and A. P. (without identifying them by name). Respondent told the parents that "two little girls" had "got[en] into a fight" and that she was being accused of and investigated by the police for having "held one of them and [having] told the other girl to hit [the girl being held]." Respondent then said, "And I wouldn't do that" (knowing full well that, in fact, she had done "that"), after which she asked her students (including A. H. and A. P.) who were present in the room with the parents, "Did Mrs. Grey do that?" The students responded, in unison, "No, no."11 Respondent informed the parents that, because she "gets in trouble" when she "gets involved," she no longer would hesitate, when a student misbehaved, to prepare and submit to the principal's office a written referral that would follow the misbehaving student "all the way through high school." Later that morning (on February 26, 2010), at approximately 11:15 a.m., a DCFS child protective investigator, Donald Machacon, arrived at Ludlam to investigate the Incident (which Dr. Menocal had reported to DCFS the day before). After first speaking with Dr. Menocal, Mr. Machacon spoke with A. H., A. P., and three other students in Respondent's class.12 The last person Mr. Machacon interviewed at the school that day was Respondent. During her interview with Mr. Machacon on February 26, 2010, A. P. stated that, although at the time of the Incident she had thought she had heard Respondent instruct her to hit A. H., she must not have heard correctly because Respondent, earlier on February 26th, had spoken to her about the matter and denied ever having had given her such an instruction.13 A. P. attributed her having had misunderstood Respondent to Respondent's having had had a "hoarse voice" the day of the Incident. None of the other children Mr. Machacon interviewed at the school on February 26, 2010, including A. H., claimed to have any recollection of Respondent's ever having had told A. P. to hit A. H. (although each of them did tell Mr. Machacon that A. P. had hit A. H. while A. H. was being held by Respondent). Respondent, in her interview, indicated that she had held A. H. in order to "break up a fight," but she denied having had told A. P. to hit A. H. during the altercation. She also denied having had spoken about the Incident earlier that day (February 26, 2010) with A. H. and A. P. She did acknowledge, however, that she had referenced the Incident in a talk she had had with a group of parents shortly after the Performance that morning. She further acknowledged that, the day before (February 25, 2010), she had been questioned about the Incident by Officer San Antonio, who was at the school investigating the matter. By letter dated February 26, 2010, and received by Respondent on March 1, 2010, Dr. Menocal formally informed Respondent, in writing, that "[a]n investigation [was] being conducted" of a complaint made by an unnamed "juvenile" complainant alleging that Respondent had "held" her "so that another student could hit her." Among the parents who had attended the Post- Performance Meeting on February 26, 2010, was M. M., J. M.'s mother. M. M. left the meeting concerned about the safety of her daughter in Respondent's classroom given what Respondent had told the parents, particularly about the fight between the "two little girls" that the police had been called to the school to investigate.14 Moreover, M. M. thought that it was inappropriate for Respondent to have discussed the matter at the meeting. The following week, M. M. made arrangements to meet with Dr. Menocal so that she could air her grievances about Respondent. (These grievances were not only about what had occurred at the Post- Performance Meeting. They also concerned "classroom management issues.") Sometime before this meeting between M. M. and Dr. Menocal took place, M. M. learned more about the Incident from J. M. during a discussion the two had following a physical altercation between J. M. and J. M.'s sister. M. M. had initiated the discussion by asking whether J. M. believed that J. M.'s sister had deserved to be hit by J. M., a question to which J. M. responded in the affirmative. When M. M. inquired as to why J. M. felt this way, J. M. answered, "Well, it's like in Mrs. Grey's class, when you get hit, you hit back." In response to her mother's request that she elaborate, J. M. told M. M. about the Incident and how, after A. H. had hit A. P., Respondent had grabbed ahold of A. H., told A. P. to hit A. H. back,15 and then announced to the class, "This is what happens in Mrs. Grey's class, when you hit; you get hit back." M. M. had her meeting with Dr. Menocal approximately a week after the Incident. During her audience with Dr. Menocal, M. M. raised a number of complaints that she had about Respondent. She talked about, among other things, the comments and remarks Respondent had made to the parents and students in attendance at the Post-Performance Meeting, including those relating to the Incident and its aftermath. On March 8, 2010, Respondent was temporarily reassigned, "until further notice," from Ludlam to the School Board's Region III Office, where she engaged in "professional development" activities. By letter dated May 18, 2010, which she received on May 19, 2010, Respondent was advised that the School Board police had completed its investigation of the Incident and found probable cause to believe that she had violated School Board Rule 6Gx13-4A-1.21. The letter further advised Respondent of her right "to file a written exception" with the School Board's Office of Professional Standards (OPS).16 Respondent submitted to OPS her "written exception," by letter dated May 25, 2010. She subsequently sent to OPS a "[r]evised [v]ersion" of this letter, which read, in pertinent part, as follows: Pursuant to your letter dated May 18, 2010, informing me of the outcome of your investigation (SPAR #R-09002), I wish to exercise my right to provide a written exception to your findings. I take exception to your findings of probable cause to the violation because no such violation occurred. My intervention was simply to stop the aggressing child from hitting the other child and preventing a fight, possibly leading to injuries, between the two children. Below please find specific items with which I take issue . . . . * * * Det. Torrens also states that two students who were interviewed as witnesses told him exactly the same thing which, significantly, was not that I told one child to hit the other as the information from the two combatants indicate. These children also provided him with previously written statements. I would like to see the original documents; to know who took the statements and who was present. I would also like the children to be interviewed on tape as to the veracity of the statements, being cognizant of the fact that these are eight year olds who often repeat what they hear or are told.[17] I did not tell the one child to hit the other, nor did I hold one child so that the other could hit her. I was merely holding back the very aggressive child, who was struggling with me to get loose so that she could attack the other child. It was at this time that the other child, who was free, hit the child I was holding. There were seventeen children in the class at the time I separated the two girls. All seventeen children saw what happened and they all heard what happened. I would like all seventeen children to be separately interviewed on tape. * * * I also wish to clarify the issue of the administrative letter and the suggestion that I discussed the investigation with the parents. This incident occurred on Thursday, February 25th 2010. Officer San Antonio asked me what happened in my classroom on the very same Thursday that it occurred, and I told her that I saw one child crying and I asked her what was the matter. She told me that the other child had hit her, so I separated them. The aggressing child then got angry and wanted to fight, so I held on to her, when the other child came over and tapped her on the back. The Black History function was held on the following Friday (2/26/10). I had no discussions with any parents about the incident. In fact I was not aware that there was an investigation until Mr. Machacon came to the school the afternoon of that same Friday, and told me there were these allegations against me. I certainly could not discuss an investigation that I did not know about.[18] Furthermore, Dr. Menocal did not give me the administrative letter until the following Monday afternoon (3/1/10) and I got assigned to the region the following Monday (3/8/10), eleven days after the incident. I hope this letter helps to provide additional information which will aid in a more comprehensive fact gathering process to enable a fair and just review, with the concomitant overturn of the probable cause findings. These charges I take very seriously as I have dedicated my entire adult life (over thirty years) to the vocation of educating young children without a single incident. I have assiduously guarded the propriety of this noble profession and will resist any attempt to impugn my integrity or besmirch my character. On June 2, 2010, OPS held a conference-for-the-record, at which Respondent had an opportunity to verbally respond to the probable cause finding made by the School Board police. By letter dated July 21, 2010, Assistant Superintendent Rojas advised Respondent that OPS had made a "recommendation that [she] be suspended without pay 30 workdays via an agenda item [that would] be presented to [the School Board] at the meeting scheduled for September 7, 2010." In a subsequent letter, dated August 26, 2010, Assistant Superintendent Rojas informed Respondent that the Superintendent would be recommending to the School Board, at its scheduled September 7, 2010, meeting, that Respondent receive a 30-workday suspension. The School Board followed the Superintendent's recommendation and suspended Respondent without pay from September 8, 2010, through October 19, 2010. Furthermore, it directed Respondent to report to duty at Ludlam on October 20, 2010. Respondent has served her suspension. By letter dated September 8, 2010, Respondent "request[ed] a hearing to be held before an administrative law judge" to contest her suspension. The matter was thereafter referred to DOAH. A. P.'s and A. H.'s depositions were taken in anticipation of the hearing. At her deposition, A. P. declined to answer any questions. A. H. was deposed on December 6, 2010. When asked about the Incident, she stated that she had been hit by A. P. while being held by Respondent. It was her testimony that Respondent was simply "trying [to] keep [her and A. P.] apart," and that Respondent did not tell A. P. to hit her, an assertion that was in direct conflict with what A. H. had related to Dr. Menocal the day of the Incident, when the matter was fresh in A. H.'s mind and she had not yet been exposed to the remarks that Respondent would make at the Post-Performance Meeting.19 A. H. further testified during her deposition that, after the altercation, Respondent "called the office and the office came."20
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Miami-Dade County School Board issue a final order upholding Respondent's 30-workday suspension for the reasons set forth above. DONE AND ENTERED this 8th day of March, 2011, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 2011.
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
