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03-003102 Miami-Dade County School Board vs. Algernon J. Moore, Jr.
 Status: Closed
Recommended Order on Thursday, December 30, 2004.


View Dockets  
Summary: Pet. sought to suspend and dismiss Resp for misconduct in office (Count I); corporal punishment (Count II); violence in the workplace (Count III) and responsibilities and duties (Count IV). Counts I and IV were proven. Recommend suspension and dismissal.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8MIAMI - DADE COUNTY SCHOOL BOARD, )

15)

16Petitioner, )

18)

19vs. ) Case No. 03 - 3102

26)

27ALGERNON J. MOORE, JR., )

32)

33Respondent. )

35_______________________________ )

37RECOMMENDED ORDER

39Pursuant to notice, a final hearing was held in this case

50on May 12, 2004, by video teleconference with connecting sites

60in Miami and Tallahassee, Florida, before Errol H. Powell, a

70designated Administrative Law Judge of the Division of

78Administrative Hearings.

80APPEARANCES

81For Petitioner: Melinda L. McNichols, Esquire

87Miami - Dade County School Board

93Suite 400

951450 Northeast Second Avenue

99Miami, Florida 33132

102For Respondent: Larry R. Handfield, Esquire

108Office at Bay Point, Suite 1200

1144770 Biscayne Boulevard

117Miami, Florida 33137

120STATEMENT OF THE ISSUES

124The issues for determination are whether Respondent's

131suspension should be upheld and whether his employment with

140Petitioner should be terminated, as set forth in P etitioner's

150action letter dated August 21, 2003.

156PRELIMINARY STATEMENT

158By letter dated August 21, 2003, Miami - Dade County School

169Board (School Board) notified Algernon J. Moore, Jr. that at its

180scheduled meeting on August 20, 2003, the School Board suspend ed

191him from employment and initiated proceedings to terminate his

200employment with the School Board. Mr. Moore contested the

209suspension and termination and requested a hearing. On

217August 26, 2003, this matter was referred to the Division of

228Administrative Hearings.

230On September 16, 2003, the School Board filed a Notice of

241Specific Charges, consisting of four counts. Subsequently, the

249School Board was granted leave to file an Amended Notice of

260Specific Charges, consisting of four counts. The Amended

268Charg es charged Mr. Moore as follows: Count I, Misconduct In

279Office -- violating Florida Administrative Code Rules 6B -

2881.006(3)(a) and (e), 6B - 1.001(1), (2), and (3), 6B - 1.006(3)(b)

300and (e), so serious as to impair his effectiveness and

310committing misconduct const ituting just cause for suspension and

319dismissal pursuant to Sections 1.001.32(2), 1012.22(1)(f),

3251012.40, and 447.209, Florida Statutes (2002), and Article XXI,

334Sections 1.B.1.a. and e. of the United Teachers of Dade (UTD)

345Contract; Count II, Corporal Puni shment - Prohibited -- violating

355repeatedly School Board Rule 6Gx13 - 5D - 1.07 , constituting just

366cause for suspension and dismissal pursuant to Sections

3741.001.32(2), 1012.22(1)(f), 1012.40, and 447.209, Florida

380Statutes (2002), and Article XXI, Sections 1.B.1.a. and e. of

390the UTD Contract; Count III, Violence In The Workplace --

400violating repeatedly School Board Rule 6Gx13 - 4 - 1.08 ,

410constituting just cause for suspension and dismissal pursuant to

419Sections 1.001.32(2), 1012.22(1)(f), 1012.40, and 447.209,

425Florida Sta tutes (2002), and Article XXI, Sections 1.B.1.a.

434and e. of the UTD Contract; and Count IV, Responsibilities And

445Duties -- violating repeatedly School Board Rule 6Gx13 - 4A - 1.21 ,

457constituting just cause for suspension and dismissal pursuant to

466Sections 1.001. 32(2), 1012.22(1)(f), 1012.40, and 447.209,

473Florida Statutes (2002), and Article XXI, Sections 1.B.1.a.

481and e. of the UTD Contract.

487Prior to hearing, the parties entered into and filed a

497Joint Pre - Hearing Stipulation. At hearing, the School Board

507present ed the testimony of 13 witnesses and entered 16 exhibits

518(Petitioner's Exhibits numbered 1 - 8, 15 - 17, and 20 - 24) 1 into

533evidence. Mr. Moore testified in his own behalf and entered ten

544exhibits (Respondent’s Exhibits numbered 1 - 10) into evidence.

553A transcrip t of the hearing was ordered. At the request of

565the parties, the time for filing post - hearing submissions was

576set for more than ten days following the filing of the

587transcript. The Transcript was filed on July 26, 2004. The

597parties subsequently requeste d and were granted two extensions

606of time to file their post - hearing submissions. Also, after the

618close of the hearing, the School Board inadvertently failed to

628forward to the undersigned certain exhibits which were entered

637into evidence at the video tele conference hearing. The parties'

647filed post - hearing submissions which have been considered in the

658preparation of this Recommended Order.

663FINDINGS OF FACT

6661. At all times material hereto, the School Board was a

677duly - constituted school board charged with t he duty to operate,

689control, and supervise all free public schools within the school

699district of Miami - Dade County, Florida, pursuant to Article IX,

710Florida Constitution, and Section 1001.32, Florida Statutes

717(2002).

7182. At all times material hereto, Mr. M oore was employed

729full - time with the School Board as a paraprofessional at Robert

741Renick Educational Center (Renick) and subject to the rules and

751regulations of the School Board in accordance with Section

7601012.33, Florida Statutes (2002).

7643. The UTD Contr act, between the School Board and UTD,

775also governs the terms and conditions of Mr. Moore's employment.

7854. In April 1977, Mr. Moore began his employment with the

796School Board and was assigned to Renick. He remained at Renick

807as a paraprofessional throug h February 9, 2003.

8155. In December 1996, prior to beginning his employment

824with the School Board, Mr. Moore was charged with possession of

835stolen property and driving with a suspended license and an

845expired registration. A few months later, on February 2 0, 1997,

856Mr. Moore completed an application for employment with the

865School Board and indicated on the application that he had no

876criminal charges pending. However, at the time that he made

886application for employment, the charges of December 1996 were

895pend ing.

8976. Mr. Moore does not contest several performance problems

906and deficiencies for the period October 19, 1998 through

915March 10, 2002.

918a. By memorandum dated October 27, 1998, Mr. Moore was

928notified by the assistant principal, James DeWitt, that he

937vio lated School Board policy on October 19, 1998, by allowing a

949student to be in possession of the key to his classroom.

960Mr. DeWitt advised Mr. Moore that a reoccurrence of the

970violation would lead to a conference - for - the - record.

982b. By memorandum dated Octo ber 17, 2000, Mr. Moore was

993notified by Mr. DeWitt that he had arrived late at school that

1005same day without notifying the main office of his tardiness in

1016accordance with the UTD Contract. Mr. DeWitt directed Mr. Moore

1026to adhere to the established work hou rs and advised Mr. Moore

1038that further failure to adhere to his work schedule would result

1049in disciplinary action.

1052c. By memorandum dated November 2, 2000, Mr. Moore was

1062notified by Mr. DeWitt that, on November 1, 2000, he (Mr. Moore)

1074was playing a game on his computer while the students were

1085taking a test even though he was required to monitor the test;

1097and that his (Mr. Moore's) failure to supervise and monitor the

1108test resulted in a student writing the answers in the wrong

1119section of the test. Mr. DeWit t directed Mr. Moore to adhere to

1132his duties in his job description and advised Mr. Moore that,

1143among other things, his lack of supervision would not be

1153tolerated and that his failure to adhere to the duties would

1164result in disciplinary action.

1168d. By memo randum dated March 5, 2001, Mr. Moore was

1179notified by the principal, Eugenia Smith, that, among other

1188things, he was on leave without authorization for 17 days of the

12002000 - 2001 school year, from February 8, 2001 through March 5,

12122001. Ms. Smith directed M r. Moore to, within three (3) days of

1225the date of the memorandum, provide his intended date of return

1236or resign from employment with the School Board.

1244e. By memorandum dated December 20, 2001, Mr. Moore was

1254notified by Mr. DeWitt that, on December 5, 2001 , because of his

1266(Mr. Moore's) lack of supervision, a student pushed the

1275emergency call button twice even though no emergency existed.

1284Mr. DeWitt directed Mr. Moore to adhere to his duties in his job

1297description and advised Mr. Moore that his failure to a dhere to

1309the duties would result in disciplinary action.

1316f. By memorandum dated March 8, 2002, Ms. Smith notified

1326Mr. Moore that he had been tardy for several days, specifying

1337the days of tardiness.

1341g. On March 8, 2002, a conference - for - the - record was he ld

1357with Mr. Moore to address his tardiness, including noncompliance

1366with verbal and written directives regarding his tardiness.

1374Also present were, Ms. Smith, Mr. DeWitt, and a UTD

1384representative. At the conference - for - the - record Mr. Moore was

1397given speci fic directives regarding future tardiness, which were

1406to be to work on time and to adhere to procedures in the UTD

1420contract. A summary of the conference - for - the - record dated

1433March 10, 2002, was prepared and was subsequently signed by

1443Mr. Moore.

14457. By mem orandum dated November 8, 2002, Mr. Moore was

1456notified by Mr. DeWitt that, on November 7, 2002, Mr. Moore's

1467personal telephone was confiscated because it had been used in

1477the classroom as an extension of the school's telephone system.

14878. By memorandum dat ed November 13, 2002, Mr. Moore was

1498notified by Mr. DeWitt that his (Mr. Moore's) use of his

1509personal telephone as an extension of the school's telephone

1518system was a violation of the School Board's policy prohibiting

1528telephones in the classroom unless app roved by the

1537administration. Mr. DeWitt directed Mr. Moore to adhere to

1546School Board policies and advised Mr. Moore that failure to do

1557so would result in disciplinary action.

15639. Mr. Moore does not contest violating the School Board's

1573policy regarding the use of his personal telephone in the

1583classroom.

158410. By memorandum dated January 17, 2003, Mr. DeWitt

1593notified Mr. Moore that, on January 22, 2003, he (Mr. Moore)

1604left the school for approximately one and one - half hour, from

1616approximately 11:50 a.m. to 2: 20 a.m., without signing - out as

1628required by the School Board's policy. Mr. DeWitt directed

1637Mr. Moore to adhere to the scheduled work hours and advised

1648(Mr. Moore) that his failure to so adhere would result in

1659further disciplinary action.

166211. On January 2 2, 2003, Mr. Moore was arrested based on

1674an outstanding warrant for the December 1996 charges previously

1683indicated.

168412. Renick is a special center for emotionally handicapped

1693and severely emotionally disturbed students. The student's have

1701emotional probl ems, which interfere with their ability to learn.

1711The teachers, including paraprofessionals, at Renick are

1718specially trained to deal with the behavior problems of the

1728students.

172913. The School Board adheres to a graduated system of

1739discipline for students , which consists of the following: first,

1748student conferences are held, then parent conferences, and then

1757parent - teacher conferences; and after the conferences, indoor

1766suspension, then detention, and, lastly, outdoor suspension.

1773Also, located in each clas sroom is a call button to call

1785security for assistance if needed.

179014. The use of profanity and corporal punishment is

1799prohibited by School Board rules.

180415. As a paraprofessional with the School Board for

1813several years, Mr. Moore knew or should have known the School

1824Board's graduated system of discipline, rules, and policies.

1832aining is provided for teachers, including

1838paraprofessionals, in the management of students at Renick, who

1847are misbehaving. Also, in - house workshops are provided. The

1857trainin g is "crisis management," which was formerly safe

1866physical management. In crisis management, physical restraint

1873is the last resort; interventions are used instead. A student's

1883parent must consent in writing for the use of physical

1893restraint; however, eve n without consent, physical restraint may

1902be used for situations that do not de - escalate.

1912If physical restraint is used, the situation must be documented

1922and the student's parent must be notified.

192917. One intervention is a prearranged intervention in

1937whi ch the student and teacher agree on a technique to be used by

1951the teacher to make the student aware that his/her behavior is

1962escalating. The prearranged intervention may be, for instance,

1970a pulling of the student's ear.

197618. If the prearrange intervention fails to de - escalate

1986the student's behavior, another intervention referred to as

1994proximity control may be used. In this technique, the student

2004feels the teacher's presence by the teacher moving towards the

2014student, which interrupts the student's behavior .

202119. If no interventions, whether verbal or non - verbal, de -

2033escalates the student's behavior, which begins to get out - of -

2045control, forms of physical restraint may be used, as a last

2056resort. One form of physical restraint is for the teacher to

2067hold the stu dent with his/her hand to communicate to that

2078student that his/her behavior is escalating, with safety being

2087the primary issue.

209020. If the student's behavior continues to escalate, the

2099teacher may resort to a more restrictive restraint such as the

2110cradle. In using this technique, both the student and teacher

2120are standing, with the student having his/her back to the

2130teacher, and the teacher holding the student, with safety being

2140the primary issue. Again, the teacher is attempting to have the

2151student reali ze that his/her behavior is escalating.

215921. If the student's behavior continues to escalate, the

2168teacher may take the student to the floor. One technique used

2179is the cradle assist. In this technique, the student is brought

2190to the floor by the teacher an d the student is held by the

2204teacher in a cradle - like position.

221122. If the student's behavior continues to escalate, the

2220teacher, with the assistance of a colleague, may hold the

2230student to the floor. Using a colleague, assists the student in

2241calming dow n.

224423. Whenever physical restraint is used, the parents of

2253the student are notified. Furthermore, the student is

2261counseled, and the student's file must be documented regarding

2270the use of physical restraint.

227524. Mr. Moore received the training as to the

2284interventions and the physical restraints. Furthermore, he

2291attended at least one in - house workshop. Therefore, Mr. Moore

2302had knowledge of the behavior techniques.

230825. A past performance problem involving Mr. Moore and a

2318student was documented by a memor andum dated July 24, 1998 from

2330Mr. DeWitt to Mr. Moore. The memorandum addressed "alleged

2339misconduct" by Mr. Moore committed on July 20, 1998, in which

2350Mr. Moore allegedly choked a student, when he was putting the

2361student in time - out, and used inappropria te language by calling

2373the student a "faggot." Although the memorandum indicated that

2382Mr. Moore stated that he may have grabbed the student's neck,

2393the memorandum did not indicate that the allegation was

2402confirmed. Mr. DeWitt directed Mr. Moore to "refra in from using

2413inappropriate procedures and language" while performing his

2420duties. The statement by Mr. Moore showed that he admitted, not

2431denied, that he did take some action with the student.

244126. Regarding incidents with students, the Amended Notice

2449of Specific Charges alleges a specific incident, occurring on

2458December 19, 2002, between Mr. Moore and a student, J. G.

2469Allegedly, Mr. Moore told J. G. that he "was going to kill him"

2482and "for him [J. G.] to meet him [Mr. Moore] at the store in

2496five minutes since he [J. G.] was bad, so they could fight"; and

2509that he "was going to make him [J. G.] his girl"; Furthermore,

2521Mr. Moore allegedly called J. G. a "fat bitch." Additionally,

2531Mr. Moore allegedly told another student, X. W., that he would

"2542fuck X. W.'s mother in the grave" and called X. W. a "faggot."

2555Also, Mr. Moore allegedly grabbed another student, I. J., and

2565subsequently, another student, M. S., and pulled their arms

2574behind their backs and pushed them against a wall.

258327. Further, the Amended Notice of Specific Charges

2591contains a general allegation of how Mr. Moore treated students,

2601i.e., "Moore often hit students with a broomstick on the legs

2612and buttocks, pushed students to the ground, picked a student up

2623and slammed him to the floor, wrestled stud ents in the

2634classroom, and often called them gay."

264028. As to the general allegation, student D. J. testified

2650regarding Mr. Moore pushing a student to the ground. D. J.

2661testified that he did not want to do his work and attempted to

2674leave the classroom wit hout permission from Mr. Moore; that

2684Mr. Moore would not allow him to leave the room; and that

2696Mr. Moore placed him on the floor, face first, with his

2707(D. J.'s) arms behind his back in a manner that hurt him

2719(D. J.). No one else was in the classroom to wi tness the

2732alleged incident. No specific time period was provided for the

2742alleged incident. Mr. Moore's testimony did not address this

2751particular incident. In considering D. J.'s credibility, the

2759undersigned must include, as a factor, that the students a t

2770Renick have behavior problems but that also the students should

2780expect to be treated in accordance with the School Board's

2790established crisis management techniques. D. J.'s demeanor and

2798candor, during his testimony, detracted from the credibility of

2807his testimony. The undersigned does not find D. J.'s testimony

2817convincing.

281829. Even if Mr. Moore engaged in the physical restraint of

2829D. J., the evidence presented fails to demonstrate that

2838Mr. Moore's action was inappropriate under the circumstances.

2846D. J . was attempting to force his way out of the class.

2859However, Mr. Moore failed to document the incident and notify

2869D. J.'s parents that physical restraint was used.

287730. Also, as to the general allegation, student M. L.

2887testified regarding picking a studen t up and slamming the

2897student to the floor. M. L. testified that, except for him, all

2909the other students in the class had completed their work and

2920were in the rear of the classroom with the teacher; that he had

2933just completed his work and was walking to t he rear of the class

2947when Mr. Moore walked into the classroom; that Mr. Moore told

2958him that he was out of his seat without permission; and that

2970Mr. Moore picked him up and slammed him to the floor, placing

2982his (Mr. Moore's) knee in M. L.'s back. Mr. Moore testified

2993that M. L. was out of his seat without permission and that M. L.

3007was running in the classroom and would not sit down even though

3019Mr. Moore asked him to sit down and stop running. M. L.

3031admitted that he had been disciplined before for running ar ound

3042in the classroom. Mr. Moore admits that he put M. L. to the

3055floor, which de - escalated the situation, and that he then

3066allowed M. L. to get up. Furthermore, Mr. Moore admits that he

3078did not document the incident and did not notify the parents of

3090M. L . that physical restraint had been used on M. L.

3102No testimony was presented from Mr. Moore's supervising teacher,

3111Jaime Calaf, regarding the incident with M. L. No other

3121testimony was presented.

312431. As to the incident with M. L., the only witnesses

3135test ifying were M. L. and Mr. Moore. In considering M. L.'s

3147credibility, the undersigned must include, as a factor, that the

3157students at Renick have behavior problems but that also the

3167students should expect to be treated in accordance with the

3177School Board's established crisis management techniques.

3183M. L.'s demeanor and candor, during his testimony, and his

3193admission that he had been disciplined for the same action

3203previously detracted from the credibility of his testimony.

3211Specifically, the undersigned is not convinced that M. L. had

3221completed his work, that he was not disruptive, that Mr. Moore

3232slammed M. L. to the floor, and that Mr. Moore put his knee in

3246M. L.'s back. Mr. Moore admits that he put, not slammed, M. L.

3259to the floor. The undersigned does n ot find M. L.'s testimony

3271convincing. The evidence presented fails to demonstrate that

3279Mr. Moore's action was inappropriate under the circumstances.

3287However, Mr. Moore failed to document the situation and failed

3297to notify the parents of M. L. as required that physical

3308restraint had been used with M. L.

331532. Regarding the general allegation that Moore often hit

3324students with a broomstick on the legs and buttocks, wrestled

3334students in the classroom, and often called them gay, M. L.

3345testified as to Mr. Moore punching students in the arm, who were

3357misbehaving, and O. B. testified as to Mr. Moore hitting

3367students with a broom.

337133. M. L. testified that, at times, Mr. Moore punched him

3382and other students in the arm when they were misbehaving. The

3393undersigned's decision as to M. L.'s credibility remains the

3402same. The evidence fails to demonstrate that Mr. Moore punched

3412students who were misbehaving.

341634. O. B. testified that Mr. Moore attempted to hit him

3427once with a broom when he was misbehaving and, at times, hit

3439other students with a broom when they were misbehaving. In

3449considering O. B.'s credibility, the undersigned must include,

3457as a factor, that the students at Renick have behavior problems

3468but that also the students should expect to be treated in

3479accorda nce with the School Board's established crisis management

3488techniques. O. B. testified that he did not consider J. B. to

3500be a disruptive student; whereas, the evidence presented,

3508regarding J. B., clearly indicates that J. B. is a disruptive

3519student. O. B. 's demeanor and candor, during his testimony,

3529together with his unsupported conclusion that J. B. was not a

3540disruptive student, detracted from the credibility of his

3548testimony. The undersigned does not find O. B.'s testimony

3557convincing.

355835. Further, Mr. Calaf testified that, on occasions, he

3567observed Mr. Moore grabbing students in the back and getting

3577rough with them. Mr. Calaf did not testify that he reported his

3589observations to the principal or other person who could exact

3599discipline upon Mr. Moore. M oreover, Mr. Calaf did not testify

3610that what he observed was inappropriate or contrary to the

3620established crisis management training. Consequently,

3625Mr. Calaf's observations cannot be used to support the alleged

3635inappropriate conduct by Mr. Moore.

364036. Reg arding the specific incident involving J. G. in the

3651Amended Notice of Specific Charges, according to the principal

3660of Renick, Eugenia Smith, she would not have recommended the

3670dismissal of Mr. Moore if it had not been for the incident on

3683December 19, 2002, involving J. G., a middle school student at

3694the time. No dispute exists that the School Board uses

3704progressive discipline. For Ms. Smith, the incident involving

3712J. G. was the incident that triggered the dismissal of

3722Mr. Moore. As a result, this inciden t is the defining incident

3734for Ms. Smith's decision to recommend dismissal of Mr. Moore

3744and, therefore, if this incident is not proven, the basis for

3755her recommendation of Mr. Moore's dismissal no longer exists.

376437. As to the specific incident involving J . G., the

3775witnesses to the incident are J. G., other Renick students in

3786the class, and Mr. Moore. No dispute in the testimony exists

3797that, on December 19, 2002, Mr. Moore and J. G. got into a

3810shouting match and that Mr. Moore never touched J. G.

382038. At R enick, J. G. was disruptive in his classes and had

3833had many discipline problems. One psychologist at Renick,

3841Joseph Strasko, described J. G. as physically disruptive and

3850aggressive. Another psychologist at Renick, Theodore Cox, Jr.,

3858had observed J. G. en gaging in inappropriate behavior. Also,

3868Mr. Strasko described J. G. as a student who would not tell the

3881truth when it was detrimental to him (J. G.); whereas, Mr. Cox

3893had not known J. G. to tell an untruth. As to whether J. G.

3907would tell the truth, the u ndersigned finds Mr. Strasko to be

3919more credible and, therefore, finds that J. G. will not tell the

3931truth when it is detrimental to him (J. G.).

394039. As to what lead to the shouting match, only Mr. Moore

3952was certain as to what happened. The undersigned fi nds

3962Mr. Moore's testimony credible regarding this aspect of the

3971incident. J. G. was bullying a new student in the class and had

3984physically moved toward the new student. Mr. Moore interceded

3993to stop the bullying by J. G. and to protect the new student,

4006re questing J. G. to take his seat but J. G. refused. Mr. Moore

4020kept himself between J. G. and the new student, thereby,

4030preventing J. G. from advancing upon the new student.

403940. What Mr. Moore said during the shouting match is where

4050the testimony differs. However, no dispute exists as to certain

4060aspects of the incident: that J. G. became angry and

4070disrespectful toward Mr. Moore; that J. G. stated to Mr. Moore

4081that, if Mr. Moore put his hands on him, he (J. G.) would bring

4095his father and brother to Renick a nd they would deal with

4107Mr. Moore; and that J. G. used profanity with Mr. Moore.

411841. Mr. Moore denies that he used profanity or disparaging

4128remarks during the incident with J. G. The crisis management

4138expert, Mr. Strasko, 2 testified that it is not approp riate for a

4151teacher to shout profanities at a student who is shouting

4161profanities at the teacher; and that a teacher is required to be

4173professional even when students are being disruptive.

418042. X. W., a student who was at Renick in the class at the

4194time of the incident on December 19, 2002, testified that

4204Mr. Moore called J. G. a "fat bitch" and called him (X. W.) a

"4218punk." X. W. is J. G.'s cousin.

422543. D. J., a student who was at Renick in the class at the

4239time of the incident on December 19, 2002, testif ied that he did

4252not hear about what J. G. and Mr. Moore were arguing. However,

4264D. J. testified that, when J. G. told Mr. Moore that he (J. G.)

4278was going to bring his (J. G.'s) brother, Mr. Moore told J. G.

4291to bring his brother and that he (Mr. Moore) woul d "lay him on

4305the ground."

430744. O. B. a student who was at Renick in the class at the

4321time of the incident on December 19, 2002, testified that, when

4332J. G. told Mr. Moore that he (J. G.) was going to bring his

4346(J. G.'s) brother, Mr. Moore told J. G. to bri ng his brother to

4360the store and that they would deal with it then. O. B. further

4373testified that J. G. and Mr. Moore were calling each other gay

4385and other derogatory names.

438945. Further, regarding the incident on December 19, 2002,

4398Mr. Calaf did not witnes s the incident. Mr. Calaf returned to

4410the class after the incident had occurred and observed J. G.

4421crying and Mr. Moore and J. G. shouting at each other.

4432Mr. Calaf did not testify as to what Mr. Moore and J. G. were

4446shouting but did testify that he advis ed Mr. Moore that he

4458(Mr. Moore) should not shout at students and should always

4468remain professional, not getting on the level of the students.

4478As to J. G.’s being disruptive in the class, Mr. Calaf testified

4490that J. G. was generally disruptive and that us ually Mr. Moore

4502could calm J. G. down. The undersigned finds Mr. Calaf's

4512testimony credible.

451446. In considering J. G.'s credibility, the aforementioned

4522factors describing J. G. must be considered.

452947. In considering X. W.'s credibility, the undersigned

4537must include, as a factor, that the students at Renick have

4548behavior problems but also that teachers are required not to use

4559profanity and to be professional.

4564Further, the undersigned must consider the fact that X. W. is

4575J. G.'s cousin, which was unbekn ownst to Ms. Smith.

458548. In considering D. J.'s credibility, the undersigned

4593must consider the factor that D. J. complained that Mr. Moore

4604used physical restraint against him in an earlier incident in

4614which the only witnesses were he and Mr. Moore. The in cident

4626and D. J.'s credibility are addressed earlier in these findings.

463649. In considering O. B.'s credibility, the undersigned

4644must consider that O. B. complained that he observed Mr. Moore

4655hitting students at Renick with a broom. The incident and

4665O. B' s credibility are addressed earlier in these findings.

467550. In considering Mr. Moore's credibility, the character

4683testimony provided by Mr. Strasko and the character letters

4692provided by Mr. Moore's colleagues must be considered.

4700Mr. Strasko and Mr. Moore' s colleagues address, among other

4710things, what they consider the appropriate manner in which

4719Mr. Moore handled students who were having behavior problems.

4728Further, Mr. Moore's length of employment with the School Board,

4738and his aforementioned past perform ance situations must be

4747considered, including the one documented alleged inappropriate

4754crisis management technique and language used by Mr. Moore in

4764July 1998.

476651. Taking all of the aforementioned factors of

4774credibility into consideration, the undersigned finds

4780Mr. Moore's testimony more credible than the students, the

4789character testimony and letters persuasive, and the lack of

4798evidence, as to what was said, by a witness who was not involved

4811in the incident, i.e., Mr. Calaf. Therefore, the undersigned

4820fin ds that Mr. Moore did not use profanity during the incident

4832of December 19, 2002.

483652. Mr. Moore did not report the incident involving J. G.

4847Mr. Moore did not believe that the incident rose to the level

4859that reporting was necessary. Moreover, no physical restraint

4867was used.

486953. On May 1, 2003, a conference - for - the - record was held

4884with Mr. Moore by the School Board's Office of Professional

4894Standards (OPS) to review his employment history and future

4903employment with the School Board. Among those in attenda nce

4913with Mr. Moore were a UTD advocate, Ms. Smith, and the assistant

4925superintendent for the Office of Exceptional Student Education

4933and Student/Career Services. By a summary of the conference -

4943for - the - record, dated June 6, 2003, the conference - for - the

4958reco rd was memoralized.

496254. By memorandum dated May 28, 2003, Ms. Smith and the

4973assistant superintendent recommended the dismissal of Mr. Moore.

498155. By letter dated August 21, 2003, the School Board

4991notified Mr. Moore that at its meeting on August 20, 2003,

5002it took action to suspend him and initiate dismissal proceedings

5012against him from all employment with it.

5019CONCLUSIONS OF LAW

502256. The Division of Administrative Hearings has

5029jurisdiction over the subject matter of this proceeding and the

5039parties thereto p ursuant to Sections 120.569 and 120.57(1),

5048Florida Statutes (2003).

505157. The School Board has the burden of proof to show by a

5064preponderance of the evidence that Mr. Moore committed the

5073offenses in the Amended Notice of Specific Charges. McNeil v.

5083Pinella s County School Board , 678 So. 2d 476 (Fla. 2d DCA 1996);

5096Dileo v. School Board of Dade County , 569 So. 2d 883 (Fla. 3d

5109DCA 1990).

511158. Per the UTD Contract, the School Board reserves

5120exclusively the right for "separation, suspension, dismissal,

5127and termin ation of employees for just cause." Article V,

5137Section 1.

5139Count I, Misconduct In Office

514459. Florida Administrative Code Rule 6B - 4.009, Criteria

5153for Suspension and Dismissal, provides in pertinent part:

5161The basis for charges upon which dismissal

5168action ag ainst instructional personnel may

5174be pursued are set forth in Section 231.36,

5182Florida Statutes. The basis for each of such

5190charges is hereby defined:

5194* * *

5197(3) Misconduct in office is defined as a

5205violation of the Code of Ethics of the

5213Education Prof ession as adopted in Rule 6B -

52221.001, FAC., and the Principles of

5228Professional Conduct for the Education

5233Profession in Florida as adopted in Rule 6B -

52421.006, FAC., which is so serious as to

5250impair the individual's effectiveness in the

5256school system.

525860. Flor ida Administrative Code Rule 6B - 1.001 provides in

5269pertinent:

5270(1) The educator values the worth and

5277dignity of every person, the pursuit of

5284truth, devotion to excellence, acquisition

5289of knowledge, and the nurture of democratic

5296citizenship. Essential to th e achievement

5302of these standards are the freedom to learn

5310and to teach and the guarantee of equal

5318opportunity for all.

5321(2) The educator's primary professional

5326concern will always be for the student and

5334for the development of the student's

5340potential. The educator will therefore

5345strive for professional growth and will seek

5352to exercise the best professional judgment

5358and integrity.

5360(3) Aware of the importance of maintaining

5367the respect and confidence of one's

5373colleagues, of students, of parents, and of

5380oth er members of the community, the educator

5388strives to achieve and sustain the highest

5395degree of ethical conduct.

539961. Florida Administrative Code Rule 6B - 1.006 provides in

5409pertinent part:

5411(1) The following disciplinary rule shall

5417constitute the Principles of Professional

5422Conduct for the Education Profession in

5428Florida.

5429(2) Violation of any of these principles

5436shall subject the individual to revocation

5442or suspension of the individual educator's

5448certificate, or the other penalties as

5454provided by law.

5457(3) Obligation to the student requires that

5464the individual:

5466(a) Shall make reasonable effort to protect

5473the student from conditions harmful to

5479learning and/or to the student's mental

5485and/or physical health and/or safety.

5490* * *

5493(e) Shall not intentional ly expose a

5500student to unnecessary embarrassment or

5505disparagement.

550662. The School Board contends that the use of violent,

5516abusive, and inappropriate language with the students and wholly

5525inappropriate physical restraint of the students by Mr. Moore

5534const itute a violation of Florida Administrative Code Rule 6B -

55451.006(3)(a) and (e) and are so serious as to impair his

5556effectiveness in the school system; that Mr. Moore's arrest in

5566January 2003 for the criminal charges of December 1996 and his

5577failure to resolv e them for several years constitute a violation

5588of Florida Administrative Rule 6B - 1.001(1), (2), and (3), and

5599are so serious as to impair his effectiveness in the school

5610system; and that Mr. Moore's repeated tardiness, absences from

5619work, and careless supe rvision of students constitutes a

5628violation of Florida Administrative Code Rule 6B - 1.006(3)(a) and

5638(e) and are so serious as to impair his effectiveness in the

5650school system. Consequently, the School Board contends that

5658Mr. Moore's suspension and dismissa l for cause are justified.

566863. As to the violations, the School Board demonstrated

5677that Mr. Moore's arrest in January 2003 for the criminal charges

5688of December 1996 and his falsification of his employment

5697application violated Florida Administrative Code R ule 6B -

57061.001(1), (2), and (3); and that his repeated tardiness,

5715absences from work, and careless supervision of students

5723violated Florida Administrative Code Rule 6B - 1.006(3)(a). The

5732School Board failed to demonstrate that Mr. Moore used violent,

5742abusive, and inappropriate language and wholly inappropriate

5749physical restraint in violation of Florida Administrative Code

5757Rule 6B - 1.006(3)(a) and (e).

576364. Regarding whether the violations were so serious as to

5773impair Mr. Moore's effectiveness in the school syst em, the

5783evidence was insufficient to show that his effectiveness was

5792diminished in the school system; however, the evidence is

5801sufficient to infer that his effectiveness was impaired only as

5811to the pending criminal charges and their relationship to the

5821fal sification of his employment application. Walker v.

5829Highlands County School Board , 752 So. 2d 127 (Fla. 2d DCA

58402000). Mr. Moore's conduct, as to falsifying his employment

5849application, was "by its very nature, demonstrates his

5857ineffectiveness in the schoo l system" and "independent evidence"

5866of his effectiveness in such a situation would be "superfluous."

5876Id. , at 128.

587965. Consequently, the School Board has demonstrated that

5887Mr. Moore committed misconduct in office and that just cause

5897exists for suspension and dismissal.

5902Count II, Corporal Punishment - Prohibited

590866. School Board Rule 6Gx13 - 5D - 107 provides in pertinent

5920part:

5921The administration of corporal punishment in

5927Miami - Dade County Public Schools is strictly

5935prohibited. Miami - Dade County Public

5941Schools has implemented comprehensive

5945programs for the alternative control of

5951discipline. These programs include, but are

5957not limited to, counseling, timeout rooms,

5963in - school suspension centers, student

5969mediation and conflict resolution, parental

5974involvement, al ternative education programs,

5979and other forms of positive reinforcement.

5985In addition, suspensions and/or expulsions

5990are available as administrative disciplinary

5995actions depending upon the severity of the

6002misconduct. . . .

600667. The School Board contends t hat Mr. Moore engaged in

6017corporal punishment, which is strictly prohibited, and that he

6026was aware of alternative disciplinary methods but did not use or

6037attempt to use them. Therefore, the School Board contends that

6047Mr. Moore repeatedly violated School Bo ard Rule 6Gx13 - 5D - 107 and

6061that his repeated violations constitute just cause for

6069suspension and dismissal.

607268. The evidence fails to demonstrate that Mr. Moore

6081engaged in corporal punishment. As a result, the School Board

6091failed to demonstrate that Mr. M oore violated School Board Rule

61026Gx13 - 5D - 107 . Hence, the School Board failed to demonstrate

6115just cause for his suspension and dismissal.

6122Count III, Violence In The Workplace

612869. School Board Rule 6Gx13 - 4 - 1.08 provides in pertinent

6140part:

6141Nothing is more i mportant to Dade County

6149Public Schools (DCPS) than protecting the

6155safety and security of its students and

6162employees and promoting a violence - free work

6170environment. Threats, threatening behavior,

6174or acts of violence against students,

6180employees, visitors, g uests, or other

6186individuals by anyone on DCPS property will

6193not be tolerated. Violations of this policy

6200may lead to disciplinary action which

6206includes dismissal, . . .

6211* * *

6214Dade County Public Schools employees have a

6221right to work in a safe environ ment.

6229Violence or threat of violence by or against

6237students and employees will not be

6243tolerated.

624470. The School Board contends that Mr. Moore's actions of

6254threatening, punching, and hitting students and other acts of

6263physical violence violated School Bo ard Rule 6Gx13 - 4 - 1.08 .

6276Furthermore, the School Board contends that his repeated

6284violations of the said Rule constitute just cause for suspension

6294and dismissal.

629671. The School Board failed to demonstrate that Mr. Moore

6306committed the acts complained of and , therefore, failed to

6315demonstrate that he violated School Board Rule 6Gx13 - 4.108 .

6326Consequently, the School Board failed to demonstrate just cause

6335for Mr. Moore's suspension and dismissal.

6341Count IV, Responsibilities And Duties

634672. School Board Rule 6Gx13 - 4A - 1.21 provides in pertinent

6358part:

6359I. Employee Conduct

6362All persons employed by The School Board of

6370Miami - Dade County, Florida are

6376representatives of the Miami - Dade County

6383Public Schools. As such, they are expected

6390to conduct themselves, both in their

6396employment and in the community, in a manner

6404that will reflect credit upon themselves and

6411the school system.

6414Unseemly conduct or the use of abusive

6421and/or profane language in the workplace is

6428expressly prohibited.

643073. The School Board contends that the following actions

6439do not reflect credit upon Mr. Moore or the school system and

6451are, therefore, violations of School Board Rule 6Gx13 - 4A - 1.21 :

6464his repeated inappropriate, abusive, and profane language and

6472physical contact with the students; his repeated ta rdiness,

6481numerous and excessive absences from work and careless

6489supervision of students; his arrest for the criminal activity

6498described in the criminal charges of December 1996; and his

6508providing false information on his employment application. As a

6517resul t, the School Board contends that Mr. Moore's repeated

6527violations of School Board Rule 6Gx13 - 4A - 1.21 constitute just

6539cause for suspension and dismissal.

654474. The School Board only demonstrated that Mr. Moore

6553violated School Board Rule 6Gx13 - 4A - 1.21 as it r elates to his

6568arrest for the criminal activity described in the criminal

6577charges of December 1996 and to his providing false information

6587on his employment application. Hence, the School Board

6595demonstrated just cause for Mr. Moore's suspension and

6603dismissa l.

6605RECOMMENDATION

6606Based on the foregoing Findings of Fact and Conclusions of

6616Law, it is

6619RECOMMENDED that the Miami - Dade County School Board enter a

6630final order:

66321. Finding Algernon J. Moore, Jr. in violation of Counts I

6643and IV in accordance with this Reco mmended Order.

66522. Dismissing Counts II and III.

66583. Upholding the suspension of Algernon J. Moore, Jr.

66674. Dismissing Algernon J. Moore, Jr. from all employment

6676with the Miami - Dade County School Board.

6684DONE AND ENTERED this 30th day of December 2004, in

6694Tallahassee, Leon County, Florida.

6698S

6699__________________________________

6700ERROL H. POWELL

6703Administrative Law Judge

6706Division of Administrative Hearings

6710The DeSoto Building

67131230 Apalachee Parkway

6716Tallahassee, Florida 32399 - 3060

6721(850) 488 - 9675 SUNCOM 278 - 967 5

6730Fax Filing (850) 921 - 6847

6736www.doah.state.fl.us

6737Filed with the Clerk of the

6743Division of Administrative Hearings

6747this 30th day of December, 2004.

6753ENDNOTES

67541/ The School Board was required to submit to the Administrative

6765Law Judge Petitioner's Exhibits numbered 17, 20, and 22 - 24.

67762/ Mr. Strasko is also one of Renick's psychologists who was

6787referred to in Finding of Fact numbered 37.

6795COPIES FURNISHED:

6797Melinda L. McNichols, Esquire

6801Miami - Dade County School Board

6807Suite 400

68091450 Northeast Second Avenue

6813Miami, Florida 33132

6816Larry R. Handfield, Esquire

6820Office at Bay Point, Suite 1200

68264770 Biscayne Boulevard

6829Miami, Florida 33137

6832Dr. Rudolph F. Crew, Superintendent

6837Miami - Dade County School District

68431450 Northeast Second Avenue, No. 912

6849Miami, Florida 3 3132 - 1394

6855Daniel J. Woodring, General Counsel

6860Department of Education

6863325 West Gaines street, Room 1244

6869Tallahassee, Florida 32399 - 0400

6874John Winn, Commissioner

6877Department of Education

6880Turlington Building, Suite 1514

6884325 West Gaines Street

6888Tallahassee, F lorida 32399 - 0400

6894NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

6900All parties have the right to submit written exceptions within

691015 days from the date of this recommended order. Any exceptions

6921to this recommended order should be filed with the agency that

6932will i ssue the final order in this case.

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Date
Proceedings
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Date: 02/22/2005
Proceedings: Agency Final Order filed.
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Date: 02/17/2005
Proceedings: Agency Final Order
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Date: 01/18/2005
Proceedings: Motion for Extension of Time to Submit Exceptions filed.
PDF:
Date: 12/30/2004
Proceedings: Recommended Order
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Date: 12/30/2004
Proceedings: Recommended Order (hearing held May 12, 2004). CASE CLOSED.
PDF:
Date: 12/30/2004
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 11/17/2004
Proceedings: Letter to Judge Powell from M. McNichols enclosing exhbits (not available for viewing) filed.
PDF:
Date: 11/15/2004
Proceedings: Letter to M. McNichols from Judge Powell regarding receipt of exhibits which were entered into evidence.
PDF:
Date: 10/11/2004
Proceedings: Proposed Recommended Order of Employee (filed via facsimile).
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Date: 10/11/2004
Proceedings: Petitioner School Board`s Proposed Recommended Order (filed via facsimile).
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Date: 08/27/2004
Proceedings: Order Granting Extension of Time (Proposed Recommended Orders due October 11, 2004).
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Date: 08/25/2004
Proceedings: (Proposed) Order Granting Motion for Extension filed via facsimile.
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Date: 08/25/2004
Proceedings: Motion for Extension (filed by Respondent via facsimile).
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Date: 08/12/2004
Proceedings: Order Granting Enlargement of Time (Proposed Recommended Orders due August 30, 2004).
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Date: 08/11/2004
Proceedings: (Proposed) Order Granting Motion for Extension (filed via facsimile).
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Date: 08/11/2004
Proceedings: Motion for Extension (filed by Respondent via facsimile).
Date: 07/26/2004
Proceedings: Transcript filed.
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Date: 05/20/2004
Proceedings: Respondents Witness List filed.
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Proceedings: CASE STATUS: Hearing Held.
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Proceedings: Amended Notice of Video Teleconference (hearing scheduled for May 12, 2004; 9:00 a.m.; Miami and Tallahassee, FL; amended as to video and location).
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Proceedings: Joint Pre-hearing Stipulation (filed via facsimile).
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Date: 03/02/2004
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for May 12, 2004; 9:00 a.m.; Miami, FL).
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Proceedings: Joint Motion for Continuance (filed by Petitioner via facsimile).
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Proceedings: Order Granting Motion to Amend Notice of Specific Charges
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Date: 02/13/2004
Proceedings: Amended Notice of Specific Charges (filed by Petitioner via facsimile).
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Proceedings: Petitioner`s Motion to Amend its Notice of Specific Charges (filed via facsimile).
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Date: 11/21/2003
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Date: 11/07/2003
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Proceedings: Notice of Serving Exhibits and Witness List (filed by Petitioner via facsimile).
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Date: 09/22/2003
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Date: 09/16/2003
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Proceedings: Notice of Specific Charges (filed by Petitioner via facsimile).
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Proceedings: Order of Pre-hearing Instructions.
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Date: 09/11/2003
Proceedings: Notice of Hearing (hearing set for November 5, 2003; 9:00 a.m.; Miami, FL).
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Date: 08/29/2003
Proceedings: Petitioner`s Response to Initial Order (filed via facsimile).
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Date: 08/26/2003
Proceedings: Initial Order.
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Date: 08/26/2003
Proceedings: Notice of Action to Suspend and Initiate Dismissal Proceedings (filed via facsimile).
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Date: 08/26/2003
Proceedings: Request for Administrative Hearing (filed via facsimile).
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Date: 08/26/2003
Proceedings: Agency referral (filed via facsimile).

Case Information

Judge:
ERROL H. POWELL
Date Filed:
08/26/2003
Date Assignment:
08/26/2003
Last Docket Entry:
02/22/2005
Location:
Miami, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
 

Counsels

Related Florida Statute(s) (6):