20-005134TTS Miami-Dade County School Board vs. Halaine A. James Status: Closed Recommended Order on Thursday, April 1, 2021.

Summary: Respondent made fun of a young student with emotional and behavioral disabilities before his classmates. A reprimand is appropriate since she apologized to and maintained a good working relationship with the student and his mother more than a year later.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

M IAMI -D ADE C OUNTY S CHOOL B OARD ,

Petitioner,

vs. Case No. 20-5134TTS

H ALAINE A. J AMES ,

Respondent.

/

R ECOMMENDED O RDER

Pursuant to the notice of hearing, a disputed-fact hearing pursuant to

section 120.57(1), Florida Statutes (2020), was conducted by Zoom

teleconference, on January 14, 2021, before Administrative Law Judge

(“ALJ”) Robert S. Cohen of the Division of Administrative Hearings

(“DOAH”).

A PPEARANCES

For Petitioner: Michele Lara Jones, Esquire

Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 430

Miami, Florida 33132

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

S TATEMENT OF T HE I SSUE

Whether just cause exists to su stain Respondent’s ten-workday

suspension from employ ment with the Miami-Dade County School Board

(“School Board” or “Petitioner”).

P RELIMINARY S TATEMENT

On September 9, 2020, the School Board took action to suspend

Respondent without pay for ten workdays. Respondent timely requested a

hearing pursuant to sections 12 0.569 and 120.57(1), and the matter was

referred to DOAH to conduct a hearing.

The final hearing was held on January 14, 2021. Petitioner presented the

live testimony of students I.N. and D.J., Crystal Reyes, and Assistant

Principal Steven Rojas. Petitioner's Exhibits 1 through 6 and 8 through 10

were admitted into evidence.

Respondent testified on her own behalf and offered no exhibits.

A one-volume Transcript of the hear ing was filed on February 2, 2021,

and the parties timely filed proposed recommended orders.

References to the Florida Statutes are to the 2020 version, which was in

effect at the time the incidents giving rise to this matter are alleged to have

occurred.

F INDINGS OF F ACT

1. At all times material hereto, Petitioner was a duly-constituted school

board charged with the duty to operate, control, and supervise all free public

schools within the School District of Miami-Dade County, Florida (“School

District”), pursuant to article IX, sectio n 4(b) of the Florida Constitution and

section 1012.23, Florida Statutes.

2. Respondent was hired as a full-time teacher at Mandarin Lakes K-8

Center Academy (“Mandarin Lakes”) an d was employed there as a teacher

of emotionally behavior disabled (“EBD”) students when all events material

to this case took place. She has been employed in the School District for

14 years and, prior to that, for two year s in the School District of Broward

County, Florida. She has been an EBD teacher throughout her career.

3. As a teacher, Respondent was subject to School Board policies and the

collective bargaining agreement under United Teachers of Dade, as well as

the Florida State Board of Education.

4. During the 2019-2020 school year, D.J. and I.N. were students in

Respondent’s classroom. D.J. was in the EBD class, which is a class for

students with an emotional disability. No evidence of record concerning

whether I.N. is an EBD student, as well, was presented.

5. I.N. was a student along with D.J. in Respondent’s class who is

currently in the fourth grade, however, they are not friends he said. I.N. had

heard Respondent yell at D.J. prior to this incident.

6. On October 10, 2019, D.J. asked Re spondent to use the bathroom and

Respondent said, “No.” D.J. said he wa s going to pee on himself. This was

known by Respondent as behavior she had seen often after the lunch period

when the students were not eager to return to school work.

7. Respondent did not allow D.J. to use the bathroom. Respondent called

D.J. “pissy,” and it caused the students in the class, including I.N., to laugh.

8. After that, D.J. started to get mad or angry, and D.J. started to hit his

head with his hand. Also, D.J. felt “bad” about the situation.

9. Respondent did nothing to stop the students from laughing at D.J.

10. Respondent then asked D.J. if he wanted to be Baker Acted after she

observed him picking a scab, which caused it to bleed, and hitting himself on

the head.

11. When he got home later that day, D.J. was still upset, so he told his

mother what happened at school and asked her what a Baker Act was.

12. D.J.’s siblings have severe mental health issues and have been Baker

Acted before; therefore, it was concerning to C.R. (D.J.’s mother) that

Respondent made the Baker Act comment to D.J.

13. D.J. told his mother that Respondent called him “pissy” because he

went to the bathroom a lot. D.J. was taki ng medication at the time, of which

Respondent was aware, that caused hi m to have to use the bathroom a lot.

14. D.J. was seven years old when he testified at hearing and was

recalling an incident that happened wh en he was five to six years old.

15. After the incident, D.J. started to say that he wanted to be Baker

Acted so he could be with his brother, who at the time was subject to a Baker

Act commitment. At that time, C.R. wr ote a statement detailing the incident

from her perspective, which was consis tent with her testimony at hearing.

16. Respondent admitted to using the word “pissy.”

17. Respondent also admitted to making a comment about Baker Acting

D.J. because D.J. pulled at a scab and rubbed the blood on himself and also

because he smacked himself on the head . Later, Respondent admitted during

cross-examination that the scab incident did not occur on the same day as the

Baker Act comment and was unrelated. She further admitted that she is not

qualified to Baker Act someone and wa s not serious about D.J. being Baker

Acted. This was an “unfortunate incide nt,” and Respondent apologized for it.

18. D.J. has remained Respondent’s student for nearly a year and a half

since the two incidents occurred in 2019. Respondent has maintained a good

relationship with both D.J. and his mother.

19. The School Board and the United Teachers of Dade, the classroom

teachers’ union, have agreed to be bound by the principle of progressive

discipline and that discipline imposed sha ll be consistent with that principle.

Accordingly, they have agreed that the degree of discipline shall be

reasonably related to the seriousness of the offense.

C ONCLUSIONS OF L AW

20. DOAH has jurisdiction over the su bject matter and the parties to this

cause pursuant to sections 120. 569, 120.57(1), and 1012.33(6)(a).

21. In accordance with the provisions of article IX, section 4(b) of the

Florida Constitution, district school bo ards have the authority to operate,

control, and supervise all free public sc hools in their respective districts and

may exercise any power except as prohibited by the state constitution or

general law. A school board’s authority extends to personnel matters and

includes the power to suspend and dismiss employees. §§ 1001.32(2),

1001.42(5), 1012.22(1)(f), and 1012.23(1), Fla. Stat.

22. In Florida, the district superintendent has the authority to make

recommendations for discipline of sch ool board employees, and the school

board has the authority to suspend, wi thout pay, school board instructional

staff with professional service cont racts for “just cause.” §§ 1001.42(5),

1012.22(1)(f), and 1012.33(6)(a), Fla. Stat.

23. Since the School Board seeks to suspend Respondent’s employment for

ten workdays, the School Board bears th e burden of proving the allegations

in its Notice of Specific Charges by a preponderance of the evidence. See

McNeill v. Pinellas Cty. Sch. Bd. , 678 So. 2d 476, 477 (Fla. 2d DCA 1996);

Allen v. Sch. Bd. of Dade Cty. , 571 So. 2d 568, 569 (Fla. 3d DCA 1990); and

Dileo v. Sch. Bd. of Dade Cty. , 569 So. 2d 883, 884 (Fla. 3d DCA 1990).

24. “A ‘preponderance’ of the evidence is defined as the ‘the greater weight

of the evidence,’ Black’s Law Dictionary 1201 (7th ed. 1999), or evidence that

‘more likely than not’ tends to prove a certain proposition.” Gross v. Lyons ,

763 So. 2d 276, 280 n.1 (Fla. 2000) (relying on American Tobacco Co. v. State ,

697 So. 2d 1249, 1254 (Fla . 4th DCA 1997), quoting Bourjaily v. U.S. ,

483 U.S. 171, 175 (1987)).

Count I: Misconduct in Office

25. Petitioner’s Notice of Specific Charges, dated December 9, 2020, set

forth a one-count violation of Petitioner’s rules and policies, which constitutes

misconduct in office and, it argued , justifies its ten-workday suspension

without pay from employment.

26. Under Florida Administrative Code Rule 6A-5.056(2), “Misconduct in

Office,” means one or more of the following:

(a) A violation of the Code of Ethics of the

Education Profession in Florida as adopted in Rule

6A-10.080, F.A.C.;

(b) A violation of the Principles of Professional

Conduct for the Education Profession in Florida as

adopted in Rule 6A-10.081, F.A.C.;

(c) A violation of the ado pted school board rules;

(d) Behavior that disrupts the student’s learning

environment; or

(e) Behavior that reduces the teacher’s ability or his

or her colleagues’ ability to effectively perform

duties.

27. Florida Administrative Code Rule 6A-10.081, Principles of

Professional Conduct for the Education Profession in Florida, states, in

relevant part:

(1) Florida educators shall be guided by the

following ethical principles:

(a) 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 stan dards are the freedom to

learn and to teach and the guarantee of equal

opportunity for all.

(b) 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 profes sional growth and will

seek to exercise the best professional judgment and

integrity.

(c) 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.

* * *

(2)(a) Obligation to the student requires that the

individual:

1. Shall make reasonable effort to protect the

student from conditions ha rmful to learning and/or

to the student’s mental and/or physical health

and/or safety.

* * *

5. Shall not intentionally expose a student to

unnecessary embarrassment or disparagement.

6. Shall not intentionally violate or deny a student’s

legal rights.

28. School Board Policy 3210, Standards of Ethical Conduct, provides, in

relevant part:

All employees are represen tatives of the District

and shall conduct themselves, both in their

employment and in the community, in a manner

that will reflect credit upon themselves and the

school system.

A. An instructional staff member shall:

* * *

3. make a reasonable effort to protect the student

from conditions harmful to learning and/or to the

student's mental and/or physical health and/or

safety;

* * *

7. not intentionally expose a student to

unnecessary embarrassment or disparagement;

8. not intentionally violate or deny a student’s legal

rights[.]

29. Respondent’s actions violated bo th rule 6A-10.081, Principles of

Professional Conduct for the Education Profession in Florida, and School

Board Policy 3210, Standards of Ethical Conduct. Respondent should never

have called D.J. “pissy” or said he could be Baker Acted. These comments

made to any student would violate both the Principles of Professional

Conduct and School Board policy, but to make them to an EBD student is

particularly harmful. Under the Prin ciples of Professional Conduct,

Respondent is required to have great co ncern for her students; to strive to use

her best professional judgment; and to ac t with integrity. In this case, despite

her years of experience teaching EBD students, Respondent’s behavior fell

short of these goals. No evidence admi tted or presented at hearing justified

an educational professional making comments such as these to a student

with emotional disorders, who was also a member of a family with severe

mental health disorders. Whether Responde nt knew of D.J.’s family history is

inconsequential. Her comments caused D.J. ’s fellow students to laugh at him,

therefore embarrassing him, making him feel bad, and exposing him to

further embarrassment by his peers. Re spondent knew her actions did not

conform with the standards required of instructional staff members, which is

why she apologized and stated it would not happen again.

30. School Board Policy 3210.01, Code of Ethics, provides, in relevant part:

All members of the School Board, administrators,

teachers and all other employees of the District,

regardless of their position, because of their dual

roles as public servants and educators are to be

bound by the following Code of Ethics. Adherence

to the Code of Ethics will create an environment of

honesty and integrity and will aid in achieving the

common mission of providing a safe and high

quality education to all District students.

* * *

Application

This Code of Ethics app lies to all members of the

Board, administrators, teachers, and all other

employees regardless of full or part time status. It

also applies to all persons who receive any direct

economic benefit such as membership in Board

funded insurance programs.

Employees are subject to various other laws, rules,

and regulations including but not limited to The

Code of Ethics for the Education Profession in

Florida and the Principles of Professional Conduct

of the Education Professi on in Florida, F.A.C.

Chapter 6A-10.081, the Code of Ethics for Public

Officers and Employees, fo und in F.S. Chapter 112,

Part III, and Policy 3129, which are incorporated

herein by reference and this Code of Ethics should

be viewed as additive to these laws, rules and

regulations. To the extent not in conflict with any

laws, Board policies or governmental regulations,

this Code of Ethics shall control with regard to

conduct. In the event of any conflict, the law,

regulation or Board policy shall control.

Fundamental Principles

The fundamental principles upon which this Code

of Ethics is predicated [in pertinent part] are as

follows:

* * *

E. Integrity - Standing up for their beliefs about

what is right and what is wrong and resisting

social pressures to do wrong.

F. Kindness - Being sympathetic, helpful,

compassionate, benevolent, agreeable, and gentle

toward people and other living things.

* * *

H. Respect - Showing regard for the worth and

dignity of someone or something, being courteous

and polite, and judging all people on their merits. It

takes three (3) major form s: respect for oneself,

respect for other people, and respect for all forms of

life and the environment.

I. Responsibility - Thinking before acting and being

accountable for their actions, paying attention to

others and responding to their needs.

Responsibility emphasizes our positive obligation to

care for each other.

* * *

Each employee agrees and pledges:

A. To abide by this Code of Ethics, making the well-

being of the students and the honest performance

of professional duties core guiding principles.

B. To obey local, State, and national laws, codes

and regulations.

C. To support the principles of due process to

protect the civil and human rights of all

individuals.

D. To treat all persons with respect and to strive to

be fair in all matters.

E. To take responsibility and be accountable for

his/her actions.

* * *

G. To cooperate with others to protect and advance

the District and its students.

* * *

Conduct Regarding Students

Each employee:

A. shall make reasonable effort to protect the

student from conditions ha rmful to learning and/or

to the student’s mental and/or physical health

and/or safety;

B. shall not intentionally expose a student to

unnecessary embarrassment or disparagement;

C. shall not intentionally violate or deny a student’s

legal rights.

31. In responding to D.J.’s request and actions by taunting him, calling

him names, and saying he could be Bake r Acted, Respondent did not act with

kindness or show respect to D.J. Further, adding to her lack of judgment in

making those comments to D.J., when the class began to laugh at D.J. for

being called “pissy,” Respondent did no thing to stop them, further causing

harm to D.J. Stating that D.J. could be Baker Acted led to issues with D.J. at

home actually trying to get himself Baker Acted. There is no view that can be

taken of Respondent’s words or actions during this incident that comply with

School Board Policy 3210.01, Code of Ethics.

32. School Board Policy 3213, Student Supervision and Welfare, provides,

in relevant part:

Protecting the physical and emotional well-being of

students is of paramount importance. Each

instructional staff member shall maintain the

highest professional, moral, and ethical standards

in dealing with the supervision, control, and

protection of students on or off school property.

33. Respondent failed to protect the me ntal health and safety of D.J., not

only by making the comments she made and calling D.J. a name, but also by

allowing the other students to laugh at him. This had enough of an impact on

D.J. that he was still upset by it when he got home that evening and

continued to talk to his mother about be ing Baker Acted after this incident. It

is clear Respondent had no intention of Baker Acting D.J. and was,

apparently, just making a joke. That joke, however, made by an authority

figure who was his only teacher, made D.J. angry and feel bad. That is the

opposite of what a relationship betw een a teacher and student should be.

Thus, Respondent’s actions violated School Board Policy 3213, Student

Supervision and Welfare.

34. Respondent’s conduct, as set forth herein, constitutes conduct not in

conformance with provisions of the Florida Administrative Code and School

Board policies cited above.

35. Respondent’s actions here constitu te misconduct in office. The issue

here is not whether Respondent called D.J. “pissy,” refused him use of the

bathroom, or said he could be Baker Acted. Respondent admitted to making

those comments, both at the hearing and in her previously written statement,

as well as during the Conference for the Record. It is uncontroverted that

Respondent made those statements to D.J. The issue here is whether it is

ever appropriate for a teacher of EBD students to call students names or

make comments like this. It is not. Resp ondent knows that it is not. As such,

there is just cause for discipline to be imposed on Respondent.

36. There are two mitigating factors co ncerning what discipline should be

imposed in this matter. First, D.J. has remained Respondent’s student for

nearly a year and a half since the incident complained of in these

proceedings. During this time, Re spondent has maintained a good

relationship with both D.J. and his mother, so any damage done by the

incident has lessened, if not faded away over time, with no reported (at least

at the time of hearing) further damage to D.J.’s emotional or physical well-

being. Second, the only previous discipli ne ever received by Respondent from

Petitioner was a ten-day suspension due to a violation of the Safe Driver Plan

when she served as a bus driver back in 1997. That discipline was not based

upon any classroom behavior and is so distant in time as not to be

appropriate for counting against Respon dent for purposes of progressive

discipline in her lengthy role as a classroom teacher.

37. Accordingly, while some discip line is warranted in this matter,

because Respondent’s comments were hurtful and embarrassing to D.J., one

of her EBD students, and because joking about Baker Acting someone is

never a laughing matter, a written repr imand from Petitioner will serve the

purpose of reminding Respondent that her words and actions matter. When

dealing with special needs students , harsh words and actions can have

lasting and far reaching consequences. Fo rtunately, it appears in this matter

that D.J. has not suffered any long-term adverse effects from her actions. Her

apology shortly after the incident and her continuing positive relationship

with D.J. and his mother lead the undersigned to believe that this lesser

penalty than that sought to be impo sed by Petitioner is justified.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that Miami-Dade County School Board issue a written

reprimand to Respondent.

D ONE A ND E NTERED this 1st day of April, 2021, in Tallahassee, Leon

County, Florida.

S

R OBERT S. C OHEN

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of April, 2021.

C OPIES F URNISHED :

Michele Lara Jones, Esquire Mark Herdman, Esquire

Miami-Dade County School Board Herdman & Sakellarides, P.A.

1450 Northeast Second Avenue, Suite 430 29605 U.S. Highway 19 North, Suite 110

Miami, Florida 33132 Clearwater, Florida 33761-1526

Alberto M. Carvalho, Superintendent Matthew Mears, General Counsel

Miami-Dade County School Board Department of Education

1450 Northeast Second Avenue, Suite 912 Turlington Building, Suite 1244

Miami, Florida 33132 325 West Gaines Street

Tallahassee, Florida 32399-0400

Richard Corcoran, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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 th at will issue the Final Order in this

case.