02-001577 Miami-Dade County School Board vs. Fitzroy Salesman Status: Closed Recommended Order on Monday, March 31, 2003.

Summary: Substitute teacher who used and allowed the use of profanity during the making of a video lost effectiveness as teacher and is subject to discipline.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 02 - 1577

)

FITZROY SALESMAN, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this

case on November 19, 2002, in Miami, Florida, before J. D.

Parrish, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Melinda L. McNichols, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue

Suite 400

Miami, Florida 33132

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

2595 Tampa Road, Suite J

Palm Harbor, Florida 34684

STATEMENT OF THE ISSUE

Whether the Respondent, Fitzroy Salesman, should be

terminated from his employment with the Miami - Dade County

School District.

PRELIMINARY STATEMENT

On April 17, 2002, the Miami - Dade County School Board

(Pet itioner or School Board) took action to suspend and

initiate dismissal proceedings against the Respondent, Fitzroy

Salesman. The basis for the action was alleged misconduct in

office, violation of the Code of Ethics and the Principles of

Professional Conduct of the Education Profession in Florida,

as well as an alleged violation of School Board Rule 6Gx13 - 4A -

1.21, Responsibilities and Duties. The Respondent timely

challenged the proposed dismissal by letter dated April 15,

2002.

The matter was then forwar ded to the Division of

Administrative Hearings for formal proceedings and promptly

scheduled for hearing. Each party requested and was granted a

continuance in the cause. The matter was ultimately heard on

November 19, 2002.

At the hearing, the Petitioner presented testimony from

six witnesses. The Petitioner's Exhibits numbered 1 - 10 were

received in evidence. The Respondent testified in his own

behalf and offered testimony from two other witnesses.

The Transcript of the proceeding was filed with th e

Division of Administrative Hearings on January 13, 2003. Both

parties timely filed Proposed Recommended Orders that have

been fully considered in the preparation of this order.

FINDINGS OF FACT

1. The Petitioner is charged with the duty to operate,

control, and supervise all public schools within the Miami -

Dade County School District. As such, the employment of

school personnel is encompassed among its myriad of duties.

Further, the School Board is charged with the discipline of

its employees.

2. The Petitioner employed the Respondent on or about

August 28, 1988. The Respondent was employed pursuant to a

professional service contract. The Respondent was

continuously employed as a full - time teacher assigned to Miami

Lakes Educational Center (the Center). Throughout most of his

employment, the Respondent's primary job assignment was

related to his area of expertise: welding. Prior to the

instant case, the Respondent has never been the subject of a

disciplinary proceeding.

3. Due to a decrease in enrollment for welding classes

(such that a full - time welding position was not required), the

Respondent was assigned responsibilities as a substitute

teacher for other programs at the Center.

4. Specific to the allegations of this case, the

Respondent, on September 24, 25, 26, 27, 28, 29, and

October 1, 2, 3, and 4, 2001, was assigned to serve as a

substitute teacher in the Television Production Program at the

Center.

5. While being supervised by the Respondent, at least

ten students participated in t he production of a program

depicting inappropriate activities. For example, the students

were recorded using profanity, mimicking sex acts, and

discussing "getting high." The students talked openly and

without interruption or direction from the Respondent. During

part of the tape, the Respondent stood within the glassed

production area next to the studio set. Occupants of that

room are able to see and hear the activities on the set.

6. The Respondent knew or should have known what the

students were doi ng as he was responsible for the class.

Further, at one point, the Respondent appeared on camera and

stated, "ain't that some shit."

7. The Respondent was given an inadequate lesson plan

for the days he substituted in the Television Production

Program but did not seek assistance from administrators or the

department head. Such assistance is readily available to any

substitute teacher who advises he is in need of additional

materials or plans.

8. Further, the Respondent did not report the activities

of t he students. Specifically, he did not refer students to

the office based upon their inappropriate activities.

9. The Respondent does not deny that the students

engaged in the activities described. He maintains that he was

inadequately trained or prepared to lead the class.

10. On or about October 19, 2001, an administrator at

the Center discovered the tapes depicting inappropriate

conduct. At that time the Respondent was reassigned to

another location.

11. Based upon the Respondent's failure to pro perly

monitor the class, his effectiveness as a teacher has been

impaired.

12. On January 13, 2002, a conference - for - the record

(CFR) was conducted with the Respondent. At the CFR, the

Respondent was advised of concerns regarding the described

conduct during the time he served as substitute teacher for

the Television Production Program.

13. On January 15, 2002, ten students from the

television production class were suspended from school. The

suspensions stemmed from their activities depicted in the

vi deos described above.

14. On March 19, 2002, the Respondent attended a meeting

with the School Board's Office of Professional Standards. At

that time the Respondent was advised that the School District

would seek dismissal proceedings.

15. On April 17, 2002, the School Board took action to

initiate dismissal proceedings against the Respondent based

upon the activities that had occurred in the Television

Production Program during the Respondent's time as substitute.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of

these proceedings. Sections 120.569 and 120.57, Florida

Statutes.

17. Section 231.36, Florida Statutes, 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 s.

231.1726 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). The district school

board must notify the employee in writing

whenever charges are made against the

employee and may suspend such person

without pay; but, if the charges are not

sustained, the employee shall be

immediately reinstated, and his or her back

salary shall be paid. If the employee

wishes to contest the charges, the employee

must, within 15 days a fter receipt of the

written notice, submit a written request

for a hearing. Such hearing shall be

conducted at the district school board's

election in accordance with one of the

following procedures:

1. A direct hearing conducted by the

district school board within 60 days after

receipt of the written appeal. The hearing

shall be conducted in accordance with the

provisions of §. 120.569 and 120.57. A

majority vote of the membership of the

district school board shall be required to

sustain the superinte ndent of schools'

recommendation. The determination of the

district school board shall be final as to

the sufficiency or insufficiency of the

grounds for termination of employment; or

2. A hearing conducted by an

administrative law judge assigned by the

Division of Administrative Hearings of the

Department of Management Services. The

hearing shall be conducted within 60 days

after receipt of the written appeal in

accordance with chapter 120. The

recommendation of the administrative law

judge shall be mad e to the district school

board. A majority vote of the membership

of the district school board shall be

required to sustain or change the

administrative law judge's recommendation.

The determination of the district school

board shall be final as to the sufficiency

or insufficiency of the grounds for

termination of employment.

Any such decision adverse to the employee

may be appealed by the employee pursuant to

s. 120.68, provided such appeal is filed

within 30 days after the decision of the

district scho ol board.

18. "Misconduct in office" is defined by rule. Rule 6B -

4.009(3), Florida Administrative Code, provides:

(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.

19. As an educator, the Respondent is required to s trive

to achieve the highest degree of ethical conduct. Rule 6B -

1.001, Florida Administrative Code.

20. Additionally, Miami - Dade County School Board Rule

6Gx13 - 4A - 1.21 requires:

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.

21. In this case, the School Board bears the burden of

proof to establish the violation alleged. It has met that

burden. As set forth in the Pre - Hearing Stipulation, the

parties have agreed that the Respondent was employed as the

substitute teacher for the Television Production Program on

the dates identified in the record. The parties do not agree

that the Respondent should be disciplined for the activities

that occurred in the class. Nor do the parties agree that the

Respondent knew the details of the students' video.

Nevertheless, the Petitioner has established by a

preponderance of the evidence that the Respondent, as the

teacher for the class, knew or should have known the

activities of the class.

22. The Petitioner has requested that the Notice of

Charges be amended to conform to the evidence presented.

While unnecessary, such request is granted.

23. Activities conducted in the Television Production

Program d uring the Respondent's time there resulted in the

suspension of ten students.

24. The Respondent cannot dispute the existence of the

tapes or the language and images shown therein. Instead, the

Respondent maintains he was placed in a class setting for

which he was ill prepared. If so, he did not report the

matter to any appropriate authority. Instead, students had an

uncensored opportunity to video tape inappropriate subject

matter with inappropriate language.

25. The Respondent appeared on camera for one scene and

used profane language. The School Board rule expressly

prohibits such conduct.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the Miami - Dade County School

Board affirm the suspension of the Respondent and dismiss him

from employment with the School District.

DONE AND ENTERED this 31st day of March 2003, in

Tallahassee, Leon County, Florida.

___________________________________

J. D. PARRISH

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 w ith the Clerk of the

Division of Administrative Hearings

this 31st day of March, 2003.

COPIES FURNISHED :

Merrett R. Stierheim, Interim Superintendent

Miami - Dade County School Board

1450 Northeast Second Avenue, No. 912

Miami, Florida 33132 - 1394

Daniel J. Woodring, General Counsel

Department of Education

325 West Gaines Street

1244 Turlington Building

Tallahassee, Florida 32399 - 0400

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

2595 T ampa Road, Suite J

Palm Harbor, Florida 34684

Melinda L. McNichols, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

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.