02-003446 Miami-Dade County School Board vs. Charles J. Boldwyn Status: Closed Recommended Order on Tuesday, May 13, 2003.

Summary: Teacher terminated for repeated, serious breaches of ethical requirements and professionalism.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL )

BOARD, )

)

Petitioner, )

)

vs. ) Case No. 02 - 3446

)

CHARLES J. BOLDWYN, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Ro bert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in

Miami, Florida, on February 4 - 5, 2003.

APPEARANCES

For Petitioner: Melinda L. McNichols

Legal Counsel

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Mark Herdman

Herdman & Sakellarides, P.A.

2595 T ampa Road, Suite J

Palm Harbor, Florida 34684

STATEMENT OF THE ISSUE

The issue is whether Petitioner may terminate Respondent's

teaching contract for just cause.

PRELIMINARY STATEMENT

By letter dated August 22, 2002, Petitioner i nformed

Respondent that it was initiating proceedings to dismiss him for

just cause, including misconduct in office, gross

insubordination, and violation of School Board Rule

6Gx13 - 4A - 1.21, pursuant to Sections 230.03(2), 230.23(5)(f),

231.36, and 447.209 , Florida Statutes. Respondent timely

requested a hearing.

By Amended Notice of Specific Charges filed January 27,

2003, Petitioner alleged that it initially employed Respondent

in August 1983, and he has engaged in repeated insubordinate,

threatening, a nd violent behavior at work.

Petitioner alleged that, on October 31, 1990, the principal

of Southwood Middle School held an emergency conference - for - the -

record to discuss Respondent's noncompliance with administrative

directives and refusal to present req uested lesson plans during

three attempts at formal observations. Petitioner alleged that,

on October 23, 1991, Respondent required seven or eight black

students to remain after class, at which time he made

inappropriate and disparaging remarks to them. Petitioner

alleged that, on October 31, 1991, the principal held another

conference - for - the - record with Respondent to address his lack of

judgment and future employment status with Petitioner.

Petitioner alleged that Respondent received an unacceptable

ev aluation following a classroom observation on October 5, 1998,

while teaching at Miami Killian Senior High School. Petitioner

alleged that, on October 21, 1998, the principal conducted a

conference - for - the - record and issued Respondent a prescription

for i mprovement, pursuant to the Teacher Assessment and

Development System then in effect.

Petitioner alleged that, on October 16, 1998, Respondent

verbally confronted the principal and threatened to punch him.

Petitioner alleged that, following a conferenc e - for - the - record

about the October 16 incident, Respondent was required to

undergo a medical - fitness evaluation. Petitioner alleged that,

at this time, Respondent was directed not to visit the school

campus and not to contact any staff or students. Petit ioner

alleged that it placed Respondent on alternative assignment at a

region office from October 1998 through May 14, 1999.

Petitioner alleged that, in May 1999, Respondent took a leave of

absence following the results of a psychiatric examination that

h e was unfit to be a teacher.

Petitioner alleged that, on February 16, 1999, it conducted

another conference - for - the - record to reconsider Respondent's

fitness to return to his assigned duties and future employment

status. Petitioner alleged that its rep resentatives required a

psychiatric reevaluation and directed Respondent not to contact

staff or students at Miami Killian Senior High School.

Petitioner alleged that Respondent repeatedly telephoned another

science teacher from December 1, 1998, to June 1999, at which

time he also contacted two students on several occasions.

Petitioner alleged that Respondent also contacted the chair of

the science department at the school on or before August 12,

1999. Petitioner alleged that, on August 12, 1999, it con ducted

another conference - for - the - record, at which its representatives

restated the no - contact directive.

Petitioner alleged that, on September 17, 1999, it

conducted another conference - for - the - record, at which its

representatives informed Respondent th at he remained unfit to

return to his assigned duties and restated the no - contact

directive. Petitioner alleged that, on February 4, 2000, it

conducted another conference - for - the - record for the same

purposes.

Petitioner alleged that, on February 17, 2000 , it assigned

Respondent to Palmetto Middle School. Petitioner alleged that

Respondent contacted another science teacher at Miami Killian

regarding his former problems at the school.

Petitioner alleged that, on November 9, 2001, Respondent

made inappropr iate and disparaging comments to a group of

students by referring to them as learning disabled. When the

exceptional student education chair confronted him, Respondent

allegedly used threatening and abusive language toward her.

Petitioner alleged that, o n December 5, 2001, a school

administrator, following a classroom observation that she had

conducted, informed Respondent that he did not meet standards in

various categories. Petitioner alleged that Respondent verbally

threatened her.

Petitioner alleged that, on March 20, 2002, it conducted a

conference - for - the - record to cover the previously discussed

matters. Petitioner alleged that its representatives told

Respondent to refrain from verbally or physically threatening

staff and students, refrain from d emeaning students, refrain

from contacting parties named in a pending investigation, and

refrain from entering School Board property without permission

from the region director.

Petitioner alleged that, on June 19, 2002, it took action

to suspend and init iate dismissal proceedings against Respondent

for just cause, including misconduct in office, gross

insubordination, and violation of School Board rules.

Count I of the amended notice alleges that Respondent's

repeated exhibition of threatening and improp er conduct and

chronic use of inappropriate and abusive language violate Rules

6B - 1.001(2) and (3) and 6B - 1.006(3)(a) and (e), Florida

Administrative Code, and these violations are so serious as to

impair Respondent's effectiveness as a school teacher in t he

school system, so as to constitute misconduct in office, as

defined in Rule 6B - 4.009(3), Florida Administrative Code. Count

I alleges that these acts constitute just cause for dismissal,

pursuant to Sections 231.36(1)(a) and (6)(a), Florida Statutes,

a nd Article XXI of the United Teachers of Dade contract.

Count II of the amended notice alleges that Respondent's

willful neglect of duties and repeated refusal to obey direct

orders constitute gross insubordination and willful neglect of

duty, as defined in Rule 6B - 4.009(4), Florida Administrative

Code. Count II alleges that these acts constitute just cause

for dismissal, pursuant to Sections 231.36(1)(a) and (6)(a),

Florida Statutes, and Article XXI of the United Teachers of Dade

contract.

Count III of the amended notice alleges that Respondent's

repeated threats to administrators and coworkers and chronic use

of disparaging and demeaning language constitute violations of

School Board Rules 6Gx13 - 4A - 1.21, 6Gx13 - 5D - 1.07, and

6Gx13 - 4 - 1.08. Count III alleg es that these acts constitute just

cause for dismissal, pursuant to Sections 231.36(1)(a) and

(6)(a), Florida Statutes.

Count IV of the amended notice alleges that Respondent's

conduct constitutes conduct unbecoming a School Board employee,

in violation o f School Board Rule 6Gx13 - 4A - 1.21. Count IV

alleges that this conduct is just cause for dismissal, pursuant

to Sections 231.36(1)(a) and (6)(a), Florida Statutes, and

Article XXI of the United Teachers of Dade contract.

At the hearing, Petitioner called fifteen witnesses and

offered into evidence 19 exhibits: Petitioner Exhibits 1 - 16 and

18 - 20. Respondent called three witnesses and offered into

evidence seven exhibits: Respondent Exhibits 1 - 7. All exhibits

were admitted except Petitioner Exhibit 4, wh ich was proffered.

The court reporter filed the transcript on April 14, 2003.

Respondent filed his proposed recommended order on May 9, 2003.

Petitioner filed its proposed recommend order on May 12, 2003.

On April 22, 2003, the court reporter filed the transcript of

the depositions of seven witnesses. These transcripts are

admitted as late - filed exhibits.

FINDINGS OF FACT

1. Respondent has been a science teacher since 1974.

After six and one - half years of service in the military, which

included servi ce in Vietnam, Respondent attended college and

graduated from St. Louis University with bachelor's and master's

degrees in chemistry.

2. After a short career in private industry, Respondent

entered the teaching profession in Pennsylvania. In 1983,

Respon dent moved to Miami to continue teaching. For the first

year, Respondent obtained a temporary position, filling in for a

teacher out on pregnancy leave, teaching honors physics and

biology at Palmetto Senior High School. For the next three

years, Respond ent taught earth science and physical science at

Palm Springs Junior High School, both as a permanent substitute

and regular teacher. Starting in August 1987, Respondent taught

unspecified science courses at North Dade Junior High School for

a year.

3. R espondent's first extended assignment at one school

was at Southwood Middle School, where he taught from August 1988

through June 1993. At Southwood Middle School, Respondent was a

problem employee from the start; he was explosive, defiant,

temperamental, and a bundle of nerves. From March 1989 through

October 1991, different Southwood principals had to summon

Respondent to the office for six conferences - for - the - record

(CFR).

4. In October 1990, the principal at Southwood Middle

School directed his assis tant principal to schedule an

observation of Respondent, who repeatedly deflected her request

to schedule a mutually convenient time for an observation. On

one occasion, Respondent lacked a lesson plan, but the

principal, rather than placing Respondent on probation for that

deficiency, instead conducted a CFR on October 31, 1990, at

which he reminded Respondent of the requirement of lesson plans.

5. Eventually, the regional coordinator of the science

department conducted the observation on November 26, 19 90. The

science coordinator assessed Respondent as deficient in

preparation and planning, subject - matter knowledge, and

instructional techniques. At a CFR on December 14, 1990, the

principal prescribed appropriate remedies for these

deficiencies. The CF R notes that Respondent claimed that the

science coordinator had not judged him fairly.

6. Next, Respondent taught at North Miami Senior High

School from August 1993 to June 1997. Having obtained

certification in physics, Respondent taught physics to adv anced

placement, international baccalaureate, honors, and regular

classes, as well as earth - space science.

7. During the 1997 - 98 school year and start of the 1998 - 99

school year, Respondent taught at Killian Senior High School.

At Killian, he taught thre e physics and two chemistry classes.

8. In the late summer and early fall of 1998, district

office personnel began painting the interior of Killian Senior

High School. The smell of paint was oppressive to students and

staff. Based on numerous complaints , as well as his own

experience, the principal contacted the district office and

asked that they monitor the odor. Respondent was among the

persons complaining about the paint, but he was far from alone.

9. On October 5, 1998, unrelated to the paint situ ation,

the principal conducted an observation of Respondent. The

resulting evaluation notes numerous deficiencies in preparation

(including the lack of a lesson plan), the delivery of

instruction, and the management of the classroom. At the

hearing, Resp ondent rejected the validity of this observation

largely due to the principal's lack of background in science.

10. In the ensuing days, the principal tried without

success to arrange a CFR to discuss the observation and

evaluation, although the scheduling problems were not shown to

have been due to Respondent. Finally, on October 16, 1998 -- a

teacher workday -- the principal directed his assistant principal

to get with Respondent and schedule the CFR.

11. The assistant principal summoned Respondent to her

o ffice and asked Respondent to sign a notice of CFR setting a

date for the conference. Respondent became very angry and

called the principal, who is black, a "nigger." Respondent said

the entire matter was a "bunch of bullshit." He then promised

that he would see that the assistant principal "was taken care

of" and "she would be sorry." The assistant principal replied

that she only wanted him to sign the notice, but Respondent

would not be mollified. In her 38 years in Petitioner's school

system, the as sistant principal has never seen an outburst like

this from a teacher.

12. Shaken, the assistant principal immediately telephoned

the principal, who was downtown at a school meeting. She

relayed to him what had happened and all that Respondent had

said. The principal responded by telling her that he would call

Petitioner's police and return to the school immediately.

13. Arriving at the school, the principal met with several

school police officers in his office. The officers wanted to

arrest Respondent without delay, but the principal said that he

wanted to speak to him first. The principal then walked up to

the teacher's workroom where Respondent, alone, was working.

14. The accounts of what happened next do not overlap very

much. The principal, a sizeable man, claims that Respondent hit

him. Respondent, a small man with a sizeable temper, claims

that the principal hit him. It is impossible to credit either

story. The principal's testimony is inconsistent, and he was an

evasive witness. As refl ected throughout these findings,

Respondent's distorted perceptions, disordered thinking, poor

insight, and lack of candor deprive him of credibility. Likely,

neither man struck the other, although they may have grabbed or

jostled a little. Wisely, Petit ioner did not pursue the matter

in a manner consistent with a teacher battery upon a principal,

nor does Petitioner allege in the present case that Respondent

struck the principal. Clearly, though, the two men quarreled

loudly, and, when the confrontation escalated into an

altercation, the school police entered the room and removed

Respondent from the building.

15. Petitioner reassigned Respondent to a region office.

On October 21, 1998, Petitioner conducted a CFR for the

October 5 observation. This CFR listed various prescribed

remedies, but recognized that Respondent's nonacademic placement

prevented the accomplishment of most of them.

16. On December 10, 1998, Petitioner conducted a CFR for

the October 16 incident. Petitioner presented Respondent wi th a

list of physicians from whom he could choose, so that he could

obtain a medical evaluation of his fitness to return to work.

The letter memorializing the CFR directs Respondent not to visit

the campus of Killian High School or contact any student or

staff at the school by any means.

17. Undoubtedly, Respondent had reached a breaking point

by the time of the October 16 incident. The primary source of

his increasing anxiety seems to have been the paint situation.

Eventually, the district office had t o have its personnel remove

the paint due to toxic substances contained in the paint, and it

is not unlikely that Respondent played an important role in the

process that led to the eventual removal of the unhealthy paint.

However, it is impossible to dete rmine exactly when Respondent

obtained evidence of the paint's toxicity. At some point,

although not immediately, Respondent obtained the material

safety data sheets for the paint and learned that the paint was

unsuitable for a school. It is difficult to determine exactly

when this occurred, and it is therefore difficult to assess

Respondent's behavior. It appears likely, though, that, for a

time at least, Respondent, fashioning himself a whistleblower

beleaguered by the principal, bypassed normal admini strative

channels, proclaimed to his class that he would protect them

from this toxic paint, and encouraged his students to have their

parents complain about the paint.

18. The evidence is sketchy as to whether Respondent

violated the directive not to c ontact students or staff.

Respondent probably contacted teachers and possibly contacted

students in violation of the directive, but, absent detailed

evidence of the conversations, it is impossible to find that

these conversations constituted material viol ations of the

directive.

19. After some difficulties in selecting a psychiatrist

acceptable to Respondent, he chose Dr. Anastasio Castiello from

the names provided to him by Petitioner. Dr. Castiello

conducted a psychiatric evaluation of Respondent on Ja nuary 25,

1999. Based on a 50 - minute interview and history largely

supplied by Petitioner, Dr. Castiello diagnosed Respondent as

suffering from a ”moderately severe psychiatric disorder

warranting a recommendation for relatively intensive psychiatric

trea tment. The condition would also warrant the diagnosis of an

involutional disorder with intertwined elements of paranoid and

the affective disorders."

20. Dr. Castiello conducted another 50 - minute evaluation

session with Respondent on August 16, 1999, a nd reached the same

conclusions as he had in the previous session. On January 24,

2000, Dr. Castiello conducted a third and final evaluation

session and concluded that Respondent was better and could

return to teaching.

21. The two - and - one - quarter, singl e - spaced report of

Dr. Castiello covering the last session casts little light on

the means by which Respondent journeyed from a moderately severe

psychiatric disorder warranting relatively intensive psychiatric

treatment to sufficiently better to return to teaching. It is

odd that, after Dr. Castiello opined that Respondent would need

relatively intensive psychiatric treatment, Dr. Castiello never

obtained the records of other psychiatric treatment, to which

Respondent alluded, or discussed Respondent's as sertion that the

course of that treatment never required medication. For the

most part, judging from Dr. Castiello's final report, he seems

to have been impressed by Respondent's politeness and lack of

pressured, frenzied speech, as well as vague assuranc es that

Respondent had learned his lesson. Unless the lesson was not to

pick up another moderately severe psychiatric disorder requiring

relatively intensive psychiatric treatment, Dr. Castiello's

reasoning remains elusive.

22. Although it almost goes without saying that

Dr. Castiello's diagnoses of severe illness and substantial

recovery are entitled to no weight, he legitimately observed

that his focus was on how Respondent responded to the paint

problem, not on whether, eventually, Respondent was pro ved

correct in his claims of toxicity.

23. In February 2000, Petitioner assigned Respondent to

teach at Palmetto Middle School. Respondent enjoyed his new

assignment, at least for awhile.

24. However, on November 3, 2001, the assistant principal,

who had been a science teacher, conducted an observation of

Respondent in his classroom. On December 5, 2001, the assistant

principal met with Respondent and told him that she had found

several deficiencies during the observation and offered him a

professiona l growth team, which he declined. When she offered

Respondent help, he told the assistant principal, who is black,

that he had been beaten by a black administrator, and the matter

was still in litigation.

25. From the start, the observation had been an u nofficial

observation, meaning that the results would not go into

Respondent's personnel file. When the assistant principal

informed Respondent of this fact and that she would return for

an official observation later, he angrily replied that, if he

did no t pass the next observation, the assistant principal would

have a problem. He told her that he had been a Green Beret in

the military and had a considerable background in science.

Surprised by Respondent's response to a "freebie" observation,

as she call ed it, and stunned by his threatening behavior, the

assistant principal reasonably feared for her personal safety.

26. During November 2001, probably between the observation

and meeting with the assistant principal described above,

Respondent also had a confrontation with students and a teacher.

A teacher across the hall from Respondent had been late

returning from lunch, so the students for her next class were

milling about in the hallway, waiting for her. Respondent

confronted the students and, think ing they were exceptional

student education (ESE) students, called them a "bunch of

L[earning] D[isabled] students" and said that "LD students were

always in trouble." When the students yelled back that they

were not LD students, Respondent said, "You're all a bunch of LD

losers."

27. As this exchange took place, the teacher who was the

ESE department head was approaching the students and Respondent.

Her first response was to turn to the students and tell them

that LD students are not losers. As she did so, Respondent

stood behind her, laughing. The ESE department head then

followed Respondent into his room and demanded to know why he

was saying such things about ESE students and saying them to

other students. Respondent denied saying anything and adde d

that the matter was not any of her business. After a couple of

inconsequential exchanges between the two teachers, Respondent

warned the ESE department head that she should not be "messing"

with him and that he has sued people. The ESE department head

told him to do what he wanted to do and that she was going to

file a grievance.

28. Twelve years ago, a science coordinator observed

Respondent and found him deficient in preparation and planning,

subject - matter knowledge, and instructional technique.

Re spondent's response was to say the science coordinator was

unfair. Four years ago, a principal without a science

background observed Respondent and found him deficient in

preparing a lesson plan, classroom management, and instructional

technique -- two of t he same areas identified in the assessment

eight years earlier. Respondent's response was to fault the

principal's lack of science background and, to his assistant

principal, call the man a "nigger" and the observation

"bullshit." Not satisfied, Responde nt then threatened the

assistant principal, who was merely trying to schedule a CFR.

Still not satisfied, Respondent engaged in an altercation with

the principal. Three years ago, an assistant principal with a

background in science observed Respondent an d found several

deficiencies. Even though he had been out of work for one year

as medically unfit and even though the assistant principal had

told him that the observation and evaluation would not go into

his personnel file, Respondent's response was to t ell her that,

if he failed the next observation, she would have a problem. In

the same month, Respondent gratuitously confronted students whom

he thought to be in the ESE program, demeaned such students,

laughed as a teacher tried to repair the damage tha t he had

caused, and, when confronted privately by the teacher, told her

to mind her own business and threatened her. This is misconduct

in office, and this misconduct is so serious as to impair

Respondent's effectiveness as a teacher in the school system .

CONCLUSIONS OF LAW

29. The Division of Administrative Hearings has

jurisdiction over the subject matter. Section 120.57(1),

Florida Statutes. (All references to Sections are to Florida

Statutes. All references to Rules are to the Florida

Administra tive Code.)

30. Section 231.36(1)(a) authorizes Petitioner to

terminate Respondent's contract for "just cause," which includes

"misconduct in office." It is necessary only to address this

allegation.

31. Rule 6B - 4.009(3) defines "misconduct in office" as any

violation of Rule 6B - 1.001 or 6B - 1.006, which is so serious as

to impair the individual's effectiveness in the school system.

32. Rules 6B - 1.001(2) and (3) provide:

(2) The educator’s primary professional

concern will always be for the student an d

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.

33. Petitioner has proved that Respondent is guilty of

repeated instances of serious br eaches of civility and

professionalism, as Respondent has responded to numerous

attempts to address his shortcomings as a teacher with threats,

name - calling, and irrational behavior. Petitioner has thus

proved that Respondent has violated Rules 6B - 1.001(2 ) and (3),

and Petitioner has just cause to dismiss Respondent.

RECOMMENDATION

It is

RECOMMENDED that the Miami - Dade County School Board enter a

final order dismissing Respondent and terminating his contract.

DONE AND ENTERED this 13th day of May, 20 03, in

Tallahassee, Leon County, Florida.

___________________________________

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative H earings

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 13th day of May, 2003.

COPIES FUR NISHED:

Merrett R. Stierheim,

Interim Superintendent

Miami - Dade County School Board

1450 Northeast Second Avenue

Number 912

Miami, Florida 33130 - 1394

Honorable Jim Horne

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Daniel J. Woodring, General Counsel

Department of Education

325 West Gaines Street

1244 Turlington Building

Tallahassee, Florida 32399 - 0400

Melinda L. McNichols

Legal Counsel

Miami - Dade County Sc hool Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Mark Herdman

Herdman & Sakellarides, P.A.

2595 Tampa Road, Suite J

Palm Harbor, Florida 34684

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written ex ceptions within

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

to this recommended order must be filed with the agency that

will issue the final order in this case.