00-002665 Dade County School Board vs. Mary Jane Mcelrath Status: Closed Recommended Order on Friday, August 3, 2001.

Summary: Teacher exhibited conduct unbecoming a school board employee; committed misconduct in office; and violence in the workplace when she sprayed pepper spray in co-worker`s face. Suspension without pay should be sustained and teacher`s employment terminated.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 00-2665

)

MARY JANE MCELRATH , )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, the final hearing was held in this case

on March 21, 2001, by video teleconference, with the Petitioner

and the Respondent appearing in Miami, Florida, before Patricia

Hart Malono, a duly-designated Administrative Law Judge of the

Division of Administrative Hearings, who was located in

Tallahassee, Florida.

APPEARANCES

For Petitioner : Madelyn P. Schere, Esquire

Miami-Dade County School Board

1450 Northeast Second Avenue

Suite 400

Miami, Florida 33132

For Respondent : Lisa N. Pearson, Esquire 1/

United Teachers of Dade

2929 Southwest Third Avenue

Miami, Florida 33129

STATEMENT OF THE ISSUE

Whether the Respondent committed the violations alleged in

the Second Amended Notice of Specific Charges filed by the

Petitioner on March 15, 2001, and, if so, the penalty that

should be imposed.

PRELIMINARY STATEMENT

In a letter dated June 22, 2000, the School Board of Miami-

Dade County ("School Board") notified Mary Jane McElrath that

the School Board had taken action on June 21, 2000, to suspend

her from her teaching position and to initiate dismissal

proceedings against her. Ms. McElrath timely requested a

hearing, and the School Board duly forwarded the request to the

Division of Administrative Hearings for assignment of an

administrative law judge.

On August 8, 2000, the School Board filed its Notice of

Specific Charges, and, on the same day, filed its Amended Notice

of Specific Charges, amending only as to Ms. McElrath's address.

On March 19, 2001, an order was entered allowing the School

Board to file its Second Amended Notice of Specific Charges,

which became the charging document in this case. In the Second

Amended Notice of Specific Charges, the School Board alleges

that, in the presence of a coworker and several students,

Ms. McElrath sprayed a substance into another coworker's eyes

that caused him pain. On the basis of this action, the School

Board charges in Count I that Ms. McElrath had engaged in

conduct unbecoming a School Board employee, in violation of

School Board Rule 6Gx13 - 4A-1.21 ; the School Board charges in

Count II that Ms. McElrath had engaged in misconduct in office

that was so serious it impaired her effectiveness in the school

system, in violation of Rules 6B-1.001(1), (3), and/or (3) and

6B-1.006(5)(c) and/or (f), Florida Administrative Code; and the

School Board charges in Count III that Ms. McElrath had engaged

in violence in the workplace, in violation of School Board

Rule 6Gx13 - 4.1.08 . The School Board asserts that these

violations establish just cause for terminating Ms. McElrath's

employment as a teacher pursuant to Section 231.36(1)(a) and

(6)(a), Florida Statutes (1999).

On March 15, 2001, Ms. McElrath filed a Motion in Limine,

in which she asserted that several unsuccessful attempts had

been made by both parties to take the deposition of Eboni

Gibson, a witness that appeared on the School Board's witness

list. Ms. McElrath requested that Ms. Gibson be excluded as a

witness at the hearing subject to Ms. Gibson's submitting

herself for deposition prior to giving testimony. Because it

was not known if Ms. Gibson would appear at the final hearing,

ruling was withheld on the motion.

At the hearing, the School Board presented the testimony of

the following witnesses : Thomas Rolle, a computer specialist

employed by the School Board at Miami Jackson Senior High School

("Miami Jackson"); Diane McKnight, a former student at Miami

Jackson; Ludgerte Jean-Baptiste, a paraprofessional employed by

the School Board at Miami Jackson; and Sharon Jackson, a

District Director of the School Board's Office of Professional

Standards. In addition, a sign-language interpreter assisted

Mr. Rolle. Petitioner's Exhibits 1 through 13 were offe red and

received into evidence; Petitioner Exhibit 10 consists of the

transcript of the deposition of Mercedes Thompson, a former

student at Miami Jackson. The School Board presented the

testimony of Mr. Rolle and Ms. Jackson on rebuttal.

Ms. McElrath tes tified in her own behalf and presented the

testimony of Catherine McElrath, her sister; Andrea Zuniga, a

former student at Miami Jackson; Sheila U. Dunkley, a custodian

at Miami Jackson; Israel Katz, an assistant principal at Miami

Jackson; and Mairi Callam, a media specialist at Miami Jackson.

Respondent's Exhibits 1, 4 through 7, 10, and 11 were offered

and received into evidence; Respondent's Exhibits 2, 3, and 8

were rejected but not proffered. At the hearing, Ms. McElrath

was given leave to take the deposition of Delores Williams after

the hearing and to late-file the transcript of the deposition

because Ms. Williams was unable to attend the hearing due to

illness. No such transcript has been filed with the Division of

Administrative Hearings to date. Ms. Gibson did not appear at

the final hearing, and the Motion in Limine was denied at the

hearing as moot.

At the hearing, the School Board elicited testimony from

Sharon Jackson to the effect that, in her opinion,

Ms. McElrath's actions violated Rule 6B-1.006(5)(a) and (d),

Florida Administrative Code. Ms. McElrath moved to strike this

testimony because the Second Amended Notice of Specific Charges

did not allege that Ms. McElrath had violated these rule

sections. In response, the School Board moved to amend its

Second Amended Notice of Specific Charges to conform to the

evidence. Ruling was withheld on the two motions, and the

parties were given leave to present argument in their Proposed

Recommended Orders.

As noted by the School Board in its legal argument on this

issue, an administrative law judge has discretion with respect

to allowing amendments to charging documents in administrative

proceedings. See Pilla v. School Board of Dade County, Florida ,

655 So. 2d 1312, 1314 (Fla. 3d DCA 1995). It has been held that

it is an abuse of discretion to deny a motion to amend a

petition 2/ unless the party opposing the motion shows actual

prejudice. See Optiplan v. School Board of Broward County , 710

So. 2d 569, 571 (Fla. 4th DCA 1998). In this case, there was no

showing that Ms. McElrath would be prejudiced or confounded in

her ability to present a defense if the proposed amendments were

permitted. However, in its argument in support of its motion,

the School Board has conceded that the two additional rule

sections it seeks to include in the Second Amended Notice of

Specific Charges "are encompassed in the other rule violations

that were alleged." This being the case, the School Board's

motion is denied, there being no need to include duplicative

charges in the Second Amended Notice of Specific Charges.

Accordingly, Ms. McElrath's motion to strike Ms. Jackson's

testimony with respect to these two rule sections is granted,

and said testimony shall be stricken from the record.

The transcript of the proceedings was filed with the

Division of Administrative Hearings on April 30, 2001. Pursuant

to an order granting an extension of time, the parties timely

filed their proposed findings of facts and conclusions of law,

which have been considered in preparing this Recommended Order.

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:

1. The School Board is a duly-constituted school board

charged with the duty to operate, control, and supervise all

free public schools within the School District of Miami-Dade

County, Florida. Article IX, Florida Constitution ;

Section 230.03, Florida Statutes.

2. At all times material to this proceeding, Ms. McElrath

was employed as a teacher by the School Board and assigned to

Miami Jackson, where she taught for almost 13 years.

Ms. McElrath taught English, and she was the coach of the Miami

Jackson debate team for one year and the advisor for the student

newspaper for six years. She has consistently been rated

acceptable in teaching and in professional responsibility in her

annual evaluations at Miami Jackson.

3. Ms. McElrath is employed by the School Board under a

professional service contract. Prior to the incident that is

the subject of these proceedings, Ms. McElrath had never been

the subject of a School Board personnel investigation. She was

known to her colleagues as a friendly person and had never

displayed violent behavior.

4. Thomas Rolle is a computer specialist employed by the

School Board and assigned to Miami Jackson. Mr. Rolle's duties

include trouble-shooting and maintaining the computers at Miami

Jackson and administering the computer network.

5. Mr. Rolle is blind in his left eye and is severely

hearing impaired. He wears hearing aids in both ears; he can

also read lips and understand a speaker in a face-to-face

conversation.

6. About three weeks prior to February 23, 2000, Mr. Rolle

was conducting a computer survey at Miami Jackson to determine

which computers needed to be configured for the school's

Internet connection. When he arrived at Ms. McElrath's

classroom, the class was watching a video on television, and the

classroom was dark. Mr. Rolle also noticed that the computer

and the Internet connection drop were on opposite sides of the

classroom. Ms. McElrath told Mr. Rolle that she would move the

computer closer to the Internet connection drop and that he

should come back later to work on the computer.

7. About ten days later, Ms. McElrath passed Mr. Rolle in

the hallway, and Ms. McElrath told Mr. Rolle that she had moved

the computer in her classroom. Ms. McElrath asked that

Mr. Rolle come to her classroom to configure the computer.

Ms. McElrath felt that her class was getting behind because

there was no Internet connection in her classroom. Mr. Rolle

did not go to Ms. McElrath's classroom as she had requested.

8. Shortly before 11:00 a.m. on February 23, 2000,

Ms. McElrath went to Dr. Choate, Mr. Rolle's supervisor, a nd

asked if Dr. Choate could expedite Mr. Rolle's visit to her

classroom to configure her computer. While Ms. McElrath was in

Dr. Choate's office, Dr. Choate paged Mr. Rolle, and he

immediately called back. Dr. Choate asked Mr. Rolle if he could

go to Ms. McElrath's classroom; he told her that he was working

in Room 137, the Language Arts lab, but that he would be

finished soon and would go to Ms. McElrath's classroom in about

30 minutes, after he had finished a few tasks on the first floor

of the school building. Dr. Choate gave Ms. McElrath this

information.

9. Ms. McElrath left Dr. Choate's office and went directly

to Room 137. She was frustrated because Mr. Rolle had told her

before that he would configure her classroom computer but had

not done so. Ms. McElrath thought that if she went to Room 137

and waited for him, Mr. Rolle would be more motivated to go to

her classroom immediately.

10. When Ms. McElrath entered Room 137, Mr. Rolle was

helping Ludgerte Jean- Baptiste, a school paraprofessional,

create a school map for a job career fair. Both Ms. Jean-

Baptiste and Mr. Rolle were facing away from the door to the

room. At first, Ms. McElrath looked for some novels she had

seen previously in the Language Arts lab, but they weren't

there. She jiggled her keys to make noise so Mr. Rolle and

Ms. Jean-Baptiste would notice her. Mr. Rolle did not turn

around, but, after a few moments, Ms. Jean-Baptiste turned

around and asked if she could help Ms. McElrath. Ms. McElrath

told her she was waiting for Mr. Rolle.

11. Ms. Jean-Baptiste touched Mr. Rolle on the shoulder,

and he turned around. Ms. McElrath asked him to come with her

to her classroom to configure the computer for the Internet.

Mr. Rolle told her that he needed to finish helping Ms. Jean-

Baptiste and would go to Ms. McElrath's classroom within 30

minutes. Ms. McElrath was very persistent and repeatedly

inquired as to why he could not come to her classroom

immediately. Ms. Jean-Batiste told Mr. Rolle that she could

finish with the map if there was something else that he needed

to do.

12. Mr. Rolle got up to leave Room 137, and Ms. McElrath

asked Mr. Rolle if he was ready to go to her classroom.

Mr. Rolle told Ms. McElrath that he would go to her classroom

within 30 minutes, that he needed to go to his office to get the

computer software, the configuration information, and the

drivers before he went to her classroom.

13. Ms. McElrath was annoyed. She became confrontational

and blocked Mr. Rolle's path to the door of Room 137. When

Mr. Roll e moved to his left to go around her, Ms. McElrath moved

to her right to block his path. She continually asked him why

he could not go to her classroom "now," and she persisted in

moving to block his path to the door. Mr. Rolle stated several

times to Ms. Jean-Baptiste that she should watch, that she was a

witness.

14. When Mr. Rolle reached the door, Ms. McElrath's back

was to the door. Mr. Rolle tricked Ms. McElrath by feinting in

one direction and actually moving in the other direction. As he

stepped to his right to go through the door, Mr. Rolle moved his

left arm between his body and Ms. McElrath's, pushed her aside ,

3/ and opened the door with his right hand with sufficient

force that the door hit the outside wall. Ms. McElrath was

startled when Mr. Rolle pushed her, and she took a step back;

she and Mr. Rolle pivoted as he moved through the doorway, so

that she was facing the patio outside and Mr. Rolle was facing

her.

15. While the door was open, and without any further

provocation from Mr. Rolle , 4/ Ms. McElrath raised her keys

and sprayed a substance into Mr. Rolle's face from a canister on

her key ring. The door closed, and Mr. Rolle fell to his knees,

holding his eyes. Ms. Jean-Baptiste, who was inside Room 137,

saw Ms. McElrath spray the substance into Mr. Rolle's face, and

she went to help him to the bathroom to flush out his eyes with

water. Ms. McElrath fled upstairs to her classroom.

16. At least five students and one staff member observed

this incident.

17. Immediately after the incident, Ms. McElrath and

Mr. Rolle were summoned to the principal's office. Ms. McElrath

completed a written statement in which she asserted that she had

sprayed Mr. Rolle with a fluid she used to clean her dry-erase

board. In her statement, Ms. McEl rath stated only that she had

a heated discussion with Mr. Rolle, that she had felt threatened

when he said that he would not be responsible for what he might

do to her , 5/ and that he had shoved her.

18. Mr. Rolle suffered temporary damage to his eyes and

was required to wear dark glasses for several weeks. His eyes

were blurry and watery and light-sensitive for about a week, and

he had difficulty doing his work. He also had to drop several

classes he was taking at Florida International University

because he missed several classes as a result of the injury to

his eyes.

19. A Conference-for-the-Record was held on May 1, 2000,

to discuss with Ms. McElrath the Preliminary Personnel

Investigative Report of the incident involving Mr. Rolle, in

which it was concluded that the charge that Ms. McElrath

assaulted Mr. Rolle was substantiated, and to discuss

Ms. McElrath's violation of School Board policy and rules, as

well as her future employment status with the Miami-Dade County

school system. Ms. McElrath wa s advised at the Conference-for-

the-Record that she would be notified of the "recommended action

or disciplinary measures to include any of the following: a

letter of reprimand, a TADS Category VII prescription for the

Professional Responsibilities Component infraction which could

impact the annual evaluation decision, suspension or dismissal."

20. At this conference, Ms. McElrath conceded that the

substance she had sprayed in Mr. Rolle's face was actually

pepper spray. She stated that she was seeing a counselor

recommended to her by the Employee Assistance Plan. She

acknowledged that her actions were precipitated because she

perceived that Mr. Rolle was ignoring her and that there was no

excuse for her actions toward Mr. Rolle.

21. The first time Ms. Mc Elrath alleged to the School

Board that Mr. Rolle had moved his hands to her throat and that

she was fearful that he intended to attack her was in a letter

dated July 26, 2000, which she wrote "to clarify, explain,

and/or respond" to the information contained in the summary of

the May 1, 2000, Conference-for-the-Record. In this letter,

Ms. McElrath stated that she sprayed Mr. Rolle with pepper spray

because she was defending herself; he had shoved her and was

bringing his hands up to her throat, and she felt threatened.

Ms. McElrath asked that this letter be included as part of her

record.

Summary

22. It is uncontroverted that Ms. McElrath sprayed

Mr. Rolle in the face with pepper spray and that she lied when

she asserted in the statement she gave immediately after the

incident that the chemical she sprayed in Mr. Rolle's face was a

solution she used to clean her dry-erase marker board. The

disputed factual issues that are presented for resolution in

this case are whether Ms. McElrath conducted herself i n her

employment as a teacher in a manner that failed to reflect

credit on herself and the school system; whether Ms. McElrath

committed misconduct in office and thereby impaired her

effectiveness in the school system; whether Ms. McElrath

committed violence in the workplace; and whether Ms. McElrath

acted in self-defense when she sprayed Mr. Rolle with pepper

spray.

23. Having considered all of the evidence submitted with

respect to Ms. McElrath's conduct during the incident involving

Mr. Rolle, the under signed finds that Ms. McElrath was acting in

the course of her employment as a teacher and that her conduct

certainly did not reflect credit on her. In making this

finding, consideration has been given to Ms. McElrath's actions

in blocking Mr. Rolle's pat h as he tried to leave Room 137 and

in repeatedly demanding to know why he would not go directly to

her classroom, after he had explained that he needed to obtain

materials necessary to configure her computer for the Internet,

as well as to her spraying Mr. Rolle with pepper spray.

24. The undersigned further finds that Ms. McElrath

committed misconduct in office. Ms. McElrath did not value

Mr. Rolle's worth as an employee of the School Board entitled to

make judgments regarding his professional responsibilities or

Mr. Rolle's dignity as a person. Furthermore, Ms. McElrath used

exceedingly poor professional and personal judgment both in

spraying Mr. Rolle with pepper spray and in her actions toward

Mr. Rolle as he was trying to leave Room 137. The eviden ce

presented by the School Board is not sufficient, however, to

establish that Ms. McElrath failed to sustain the highest degree

of ethical conduct, that she interfered with Mr. Rolle's

exercise of his political and civil rights, or that she used

coercion to influence Mr. Rolle's professional judgment.

25. Having considered all of the evidence presented on

which findings of fact can be based, the undersigned finds that

Ms. McElrath's actions with respect to Mr. Rolle were so serious

that they impair her effectiveness in the school system. In

making this finding, the undersigned is mindful that, based on

the record herein, during her tenure as a teacher in the Miami-

Dade County public schools, Ms. McElrath has not been the

subject of any other disciplinary action and that she has

consistently received "acceptable" annual evaluations, the

highest overall rating a teacher in the Miami-Dade County school

system may earn. Nonetheless, the lack of control Ms. McElrath

exhibited in her behavior towards Mr. Rolle raises serious and

disturbing questions regarding her ability to resolve in a

reasonable manner those frustrating situations that sometimes

occur when one works with busy colleagues, her ability to

respond in an appropriate manner to the stresses of classroom

teaching, and her ability to appreciate the consequences of her

actions.

26. Without question, the act of spraying someone in the

face with pepper spray is an act of violence that, the evidence

herein establishes, took place at Miami Jackson, the public

school in which Ms. McElrath worked as a teacher. The greater

weight of the evidence is sufficient to establish that Mr. Rolle

pushed Ms. McElrath aside as he was moving to open the door to

leave Room 137, but Ms. McElrath testified that Mr. Rolle's

"shove" did not harm her but merely startled her and did not

precipitate her action in spraying Mr. Rolle with the pepper

spray. Rather, Ms. McElrath asserts that she took this action

in response to Mr. Rolle's moving his hands upward to grab her

throat.

27. Having carefully considered all of the evidence on

which findings of fact can be based, the undersigned finds that

Ms. McElrath did not have a reasonable basis for believing that

Mr. Rolle was about to attack and choke her. It is notable in

this regard that, as far as can be discerned from the record

herein, Ms. McElrath did not, as one would expect, immediately

explain her action as self-defense but, rather, waited

approximately five months before presenting this justification

to the School Board. The testimony of Andrea Zuniga, the only

witness who corroborated Ms. McElrath's claim that Mr. Rolle was

moving his hands up to grab her throat, has been considered and

found not sufficiently persuasive to outweigh the testimony of

Ms. Jean-Baptiste, Diane M cKnight, and Mercedes Thompson that

they saw no such action by Mr. Rolle.

CONCLUSIONS OF LAW

28. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2000).

29. Because this case is a proceeding to terminate

Ms. McElrath's employment with the School Board and does not

involve the loss of a license or certification, the School Board

has the burden of proving the allegations in the Second Amended

Notice of Specific Charges by a preponderance of the evidence.

McNeill v. Pinellas County School Board , 678 So. 2d 476 (Fla. 2d

DCA 1996) ; Allen v. School Board of Dade County , 571 So. 2d 568,

569 (Fla. 3d DCA 1990) ; Dileo v. School Board of Lake County ,

569 So. 2d 883 (Fla. 3d DCA 1990).

30. The "preponderance of the evidence" standard "requires

proof by 'the greater weight of the evidence' . . . or evidence

that 'more likely than not' tends to prove a certain

proposition." Chancellor Media Whiteco Outdoor v. Department of

Transportation, State of Florida , 26 Fla. L. Weekly D627 (Fla.

5th DCA Mar. 2, 2001)(citations omitted).

31. Section 230.23(5), Florida Statutes (1999), provides

that a school board has the power to suspend and dismiss

employees as follows:

(f ) Suspension and dismissal and return

to annual status.--Suspend, dismiss, or

return to annual contract members of the

instructional staff and other school

employees; however, no administrative

assistant, supervisor, principal, teacher,

or other member of the instructional staff

may be discharged, removed or returned to

annual contract except as provided in

chapter 231.

32. Prior to her suspension, Ms. McElrath was employed

with the School Board under a professional service contract.

Section 231.36, Florida Statutes (1999), provides in pertinent

part:

(1)(a ) Each person employed as a member

of the instructional staff in any district

school system shall be properly certificated

pursuant to s. 231.17 or employed pursuant

to s. 231.1725 and shall be entitled to and

shall receive a written contract as

specified in chapter 230. All such

contracts, except continuing contracts as

specified in subsection (4), shall contain

provisions for dismissal during the term of

the contract only for just cause. Just

cause includes, but is not limited to, the

following instances, as defined by rule of

the State Board of Education: misconduct in

office, incompetency, gross insubordination,

willful neglect of duty, or conviction of a

crime involving moral turpitude.

* * *

(6)(a ) Any member of the instructional

staff, excluding an employee specified in

subsection (4), may be suspended or

dismissed at any time during the term of the

contract for just cause as provided in

paragraph (1)(a). . . . [6/]

33. In Count I of the Second Amended Notice of Specific

Charges, the School Board has charged Ms. McElrath with

violating School Board Rule 6Gx13- 4A-1.21 , Responsibilities and

Duties, by engaging in conduct unbecoming a School Board

employee. Rule 6Gx13- 4A-1.21 provides in pertinent part:

I. Employee conduct.

All persons employed by The School

Board of Miami-Dade County, Florida, are

representatives of the Miami-Dade County

Public Schools. As such, they are expected

to conduct themselves, both in their

employment and in the community, in a manner

that will reflect credit upon themselves and

the school system.

Unseemly conduct or the use of abusive

and/or profane language in the workplace is

expressly prohibited.

34. In Count II of the Second Amended Notice of Specific

Charges, the School Board has charged Ms. McElrath with

misconduct in office, which is defined in Rule 6B-4.009, Florida

Administrative Code, as follows:

(3 ) Misconduct in office is defined as a

violation of the Code of Ethics of the

Education Profession as adopted in Rule 6B-

1.001, FAC., and the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B-

1.006, FAC., which is so serious as to

impair the individual's effectiveness in the

school system.

35. The School Board's charge that Ms. McElrath committed

misconduct in office is predicated on allegations that she

violated Rule 6B-1.001(1) ,(2) and/or (3), Florida Administrative

Code, and Rule 6B-1.006(5)(c) and/or (f) , Florida Administrative

Code.

a. Rule 6B-1.001, Florida Administrative Code, the Code of

Ethics of the Education Profession, provides:

(1 ) The educator values the worth and

dignity of every person, the pursuit of

truth, devotion to excellence, acquisition

of knowledge, and the nurture of democratic

citizenship. Essential to the achievement

of these standards are the freedom to learn

and to teach and the guarantee of equal

opportunity for all.

(2 ) 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.

(3 ) Aware of the importance of

maintaining the respect and confidence of

one's colleagues, of students, of parents,

and of other members of the community, the

educator strives to achieve and sustain the

highest degree of ethical conduct.

b. Rule 6B-1.006, Florida Administrative Code, provides in

pertinent part:

(1 ) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

(2 ) Violation of any of these principles

shall subject the individual to revocation

or suspension of the individual educator's

certificate, or the other penalties as

provided by law.

* * *

(5 ) Obligation to the profession of

education requires that the individual:

* * *

(c ) Shall not interfere with a

colleague's exercise of political or civil

rights and responsibilities.

* * *

(f ) Shall not use coercive means or

promise special treatment to influence

professional judgments of colleagues.

36. In Count III of the Second Amended Notice of Specific

Charges, the School Board has charged Ms. McElra th with

violating Rule 6Gx13- 4-1.08 , which provides:

VIOLENCE IN THE WORKPLACE

Nothing is more important to Dade County

Public Schools (DCPS) than protecting the

safety and security of its students and

employees and promoting a violence-free work

environment. Threats, threatening behavior,

or acts of violence against students,

employees, visitors, guests, or any other

individuals by anyone on DCPS property will

not be tolerated. Violations of this policy

may lead to disciplinary action which

includes dismissal, arrest, and/or

prosecution.

Any person who makes substantial threats,

exhibits threatening behavior, or engages in

violent acts on DCPS property shall be

removed from the premises as quickly as

safety permits, and shall remain off DCPS

premises pending the outcome of an

investigation. DCPS will initiate an

appropriate response. This response may

include, but it is not limited to,

suspension and/or termination of any

business relationship, reassignment of job

duties, suspension or termination of

employment, and/or criminal prosecution of

the person or persons involved.

Dade County Public Schools employees have a

right to work in a safe environment.

Violence or the threat of violence by or

against students and employees will not be

tolerated.

37. "Whether a particular action constitutes a violation

of a rule . . . 'is a factual question to be decided in the

context of the alleged violation.'" McKinney v. Castor , 667 So.

2d 387, 389 (Fla. 1st DCA 1995)(quoting Langston v. Jamerson ,

653 So. 2d 489, 491 (Fla. 1st DCA 1995)). See also Holmes v.

Turlington , 480 So. 2d 150, 153 (Fla. 1st DCA 1985)(Whether

there was a deviation from the required standard of conduct is

not a conclusion of law, it is an ultimate finding of fact

within the fact-finding discretion of the hearing officer.)

38. Based on the findings of fact herein, the School Board

has satisfied its burden of proving that Ms. McElrath committed

misconduct in office and that she violated School Board

Rules 6Gx13- 4.1.08 and 6Gx13- 4A-1.21(I) .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the decision of the School Board of

Miami-Dade County, Florida, suspending Mary Jane McElrath

without pay be sustained and that her employment with the School

Board of Miami-Dade County, Florida, be terminated.

DONE AND ENTERED this 3rd day of August, 2001, 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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of August, 2001.

ENDNOTES

1 / On April 26, 2001, Leslie A. Meek, Esquire, was substituted

as counsel for the Respondent.

2 / In cases involving the termination of a teacher, the School

Board is treated as the petitioner and the Notice of Specific

Charges is the charging document in an administrative

proceeding. Accordingly, a Notice of Specific Charges is

analogous to a "petition." Cf. Rule 28-107.004 (1) and (4),

Florida Administrative Code (An agency cannot revoke a license

without serving an administrative complaint on the licensee; the

agency complaint shall be considered the petition.)

3 / In making this finding of fact, the totality of the evidence

on this point has been carefully considered. Mr. Rolle asserted

in his testimony that he remained calm throughout the entire

incident with Ms. McElrath and that he did not touch her,

although he did testify that he placed his left arm between them

as he reached with his right hand to open the door.

Ms. McElrath testified that Mr. Rolle shoved her as he was

moving to open the door, which startled her, but she also

testified that Mr. Rolle did not appear aggressive. Ms. Jean-

Baptiste was working at the computer with her back to the room,

but she observed portions of the encounter between Mr. Rolle and

Ms. McElrath. Ms. Jean- Baptiste saw Mr. Rolle move his left arm

between his body and Ms. McElrath's as he moved with his right

hand to open the door.

4 / In making this finding of fact, the totality of the evidence,

including the statement made by Ms. McElrath immediately after

the incident, has been carefully considered. Ms. McElrath

testified at the hearing that, as they moved through the

doorway, Mr. Rolle raised his hands toward her throat. She

asserted that she thought he was going to choke her and, because

she felt threatened and was frightened, she sprayed Mr. Rolle

with the substance in the canister on her key ring.

Ms. Jean- Baptiste testified that she did not see Mr. Rolle raise

his hands to Ms. McElrath's throat but that, when she heard the

door open and turned around, she saw Ms. McElrath extend her arm

and spray Mr. Rolle with the substance. Two students who

observed the incident from about 25 feet away saw Mr. Rolle and

Ms. McElrath in the open doorway as Ms. McElrath raised her arm

to spray Mr. Rolle, and neither saw Mr. Rolle raise his arms to

Ms. McElrath's throat. A student who observed the incident from

the second floor, across an open patio, saw Mr. Rolle and

Ms. McElrath in the open door and testified that she saw

Mr. Rolle grab Ms. McElrath by the throat. It should be noted

with respect to this testimony that Ms. McElrath has never

asserted that Mr. Rolle actually grabbed her throat.

5 / There is no evidence in the record except for this statements

and Ms. McElrath's testimony to establish that Mr. Rolle, in

fact, made this statement to Ms. McElrath. This evidence is not

sufficient to establish that Mr. Rolle more likely than not made

this statement.

6 / Section 1.B.1.a. of Article XXI of the Contract between the

Dade County Public Schools and the United Teachers of Dade

provides that "[a] ny member of the instructional staff may be

suspended or dismissed at any time during the school year,

provided that the charges against him/her are based upon Florida

Statutes."

COPIES FURNISHED:

Madelyn P. Schere, Esquire

Miami-Dade County School Board

1450 Northeast Second Avenue

Suite 400

Miami, Florida 33132

Lisa N. Pearson, Esquire

United Teachers of Dade

2929 Southwest Third Avenue

Miami, Florida 33129

Dr. Roger Cuevas, Superintendent

Miami-Dade County School Board

1450 Northeast Second Avenue

Miami, Florida 33132

Honorable Charlie Crist

Commissioner of Education

Department of Education

The Capitol, Plaza Level 08

Tallahassee, Florida 32399-0400

James A. Robinson, General Counsel

Department of Education

The Capitol, Suite 1701

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.