03-003102
Miami-Dade County School Board vs.
Algernon J. Moore, Jr.
Status: Closed
Recommended Order on Thursday, December 30, 2004.
Recommended Order on Thursday, December 30, 2004.
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 (Respondents 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.
- Date
- Proceedings
- 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: Petitioner School Board`s Proposed Recommended Order (filed via facsimile).
- PDF:
- Date: 08/27/2004
- Proceedings: Order Granting Extension of Time (Proposed Recommended Orders due October 11, 2004).
- PDF:
- Date: 08/25/2004
- Proceedings: (Proposed) Order Granting Motion for Extension filed via facsimile.
- PDF:
- Date: 08/12/2004
- Proceedings: Order Granting Enlargement of Time (Proposed Recommended Orders due August 30, 2004).
- PDF:
- Date: 08/11/2004
- Proceedings: (Proposed) Order Granting Motion for Extension (filed via facsimile).
- Date: 07/26/2004
- Proceedings: Transcript filed.
- Date: 05/12/2004
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 05/11/2004
- Proceedings: Memo to DOAH from M. McNichols enclosing Petitioner`s Exhibit No. 18 (filed via facsimile).
- PDF:
- Date: 05/10/2004
- Proceedings: Letter to Judge Powell from M. McNichols enclosing copy of exhibits to used at the scheduled video conference filed.
- PDF:
- Date: 05/06/2004
- 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).
- PDF:
- Date: 03/02/2004
- Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for May 12, 2004; 9:00 a.m.; Miami, FL).
- PDF:
- Date: 02/26/2004
- Proceedings: Joint Motion for Continuance (filed by Petitioner via facsimile).
- PDF:
- Date: 02/13/2004
- Proceedings: Amended Notice of Specific Charges (filed by Petitioner via facsimile).
- PDF:
- Date: 02/13/2004
- Proceedings: Petitioner`s Motion to Amend its Notice of Specific Charges (filed via facsimile).
- PDF:
- Date: 12/09/2003
- Proceedings: Notice of Hearing (hearing set for March 9, 2004; 9:00 a.m.; Miami, FL).
- PDF:
- Date: 11/21/2003
- Proceedings: Order Granting Continuance (parties to advise status by December 1, 2003).
- PDF:
- Date: 11/20/2003
- Proceedings: Amended Notice of Appearance (filed by L. Handfield, Esquire, via facsimile).
- PDF:
- Date: 11/17/2003
- Proceedings: Order Requiring Response. (Respondent shall file a notice of appearance by November 21, 2003).
- PDF:
- Date: 11/07/2003
- Proceedings: Notice of Appearance (filed by L. Handfield, Esquire, via facsimile).
- PDF:
- Date: 10/28/2003
- Proceedings: Notice of Serving Exhibits and Witness List (filed by Petitioner via facsimile).
- PDF:
- Date: 09/22/2003
- Proceedings: Letter to G. Austin from M. McNichols requesting subpoenas (filed via facsimile).
- PDF:
- Date: 09/16/2003
- Proceedings: Notice of Service of Petitioner`s First Set of Interrogatories to the Respondent (filed via facsimile).
- PDF:
- Date: 09/11/2003
- Proceedings: Notice of Hearing (hearing set for November 5, 2003; 9:00 a.m.; Miami, FL).
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
-
Larry R Handfield, Esquire
Address of Record -
Melinda L. McNichols, Esquire
Address of Record -
Larry R. Handfield, Esquire
Address of Record