03-003242 Miami-Dade County School Board vs. Michael W. Depalo Status: Closed Recommended Order on Thursday, May 20, 2004.

Summary: District school board is not entitled to terminate a teacher`s employment for just cause, because the evidence failed to establish that the teacher had violently picked up an administrator and suddenly dropped her to the floor.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 03 - 3242

)

MICHAEL W. DEPALO, )

)

Respondent. )

)

RECOMMENDED ORDER

This cas e came before Administrative Law Judge John G.

Van Laningham for final hearing on January 27, 2004, in Miami,

Florida.

APPEARANCES

For Petitioner: Denise Wallace, Esquire

Miami - Dade County Public Schools

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Marcelle B. Poirier, Esquire

The Law Firm of Marcelle Poirier

2701 South Bayshore Drive, Suite 402

Miami, Florida 33133

STATEMENT OF THE ISSUE

The issue in this c ase is whether a district school board

is entitled to terminate a teacher's employment for just cause

based upon the allegation that he picked up an administrator and

dropped her to the floor.

PRELIMINARY STATEMENT

At its regular meeting on September 1 0, 2003, Petitioner

School Board of Miami - Dade County suspended Respondent Michael

De Palo without pay from his position as a member of the

district's instructional staff pending the outcome of dismissal

proceedings. This action resulted from the allegati on that on

January 23, 2003, Mr. De Palo had picked up and dropped an

administrator at the school where he worked.

Having been notified in advance of Petitioner's likely

decision, Mr. Depalo's legal counsel had requested a formal

hearing by letter dated September 4, 2003. Thus, on September

11, 2003, the matter was referred to the Division of

Administrative Hearings ("DOAH") for further proceedings.

There, after two continuances for good cause, the final hearing

was scheduled for January 27, 2004.

At the final hearing, Petitioner called the following

witnesses, each of whom was, at all times material to this case,

an employee in the Miami - Dade County Public School System:

William B. Turner, Principal, Miami Norland Senior High School;

Gladys Huds on, Assistant Principal, North Miami Middle School;

Benjamin Cowins, TRUST Counselor, Miami Norland Senior High

School; Detective Steven Hadley, Miami - Dade County Public

Schools Police Department; Paul Greenfield, District Director,

Office of Professional Standards; and Mr. De Palo. In addition

to these witnesses, Petitioner offered into evidence six

Petitioner's Exhibits, numbered 1 - 3 and 5 - 7, all of which were

admitted. 1

Mr. De Palo testified on his own behalf and successfully

introduced Respondent’s Ex hibits 2 and 3 into evidence.

Respondent's Exhibit 1 was identified and offered but not

received over objection.

The final hearing transcript was filed on April 19, 2004.

Each party timely filed a Proposed Recommended Order before the

established deadli ne, which was April 29, 2004.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2003 Florida Statutes.

FINDINGS OF FACT

Introduction

1. The Miami - Dade County School Board ("School Board"),

Petitioner in this case, is the constit utional entity authorized

to operate, control, and supervise the Miami - Dade County Public

School System.

2. Respondent Michael De Palo ("De Palo") is a teacher.

He was employed in the Miami - Dade County Public School System

from September 1999 until Septe mber 10, 2003, on which date the

School Board suspended him without pay pending termination. At

all times relevant to this case, De Palo was assigned to Miami

Norland Senior High School ("Norland"), where he taught social

studies.

3. The School Board's preliminary decision to dismiss De

Palo was based on an incident that occurred at Norland on

January 23, 2003. De Palo is alleged to have committed at least

a technical battery that day upon the person of Gladys Hudson,

an Assistant Principal, in the pres ence of Benjamin Cowins, a

school counselor. These three are the only individuals who have

personal knowledge of the January 23, 2003, incident.

4. De Palo, Ms. Hudson, and Mr. Cowins testified in person

at the final hearing. Also, proof of some prior s tatements

about the incident was introduced into evidence. The most

reliable such proof, in terms of establishing what was actually

said, consists of the signed, written statements of Ms. Hudson

and Mr. Cowins, dated February 3, 2003, and January 27, 2003 ,

respectively, as these documents contain the witness' own words.

Ms. Hudson and Mr. Cowins also gave verbal accounts to Detective

Hadley, the school police officer who investigated the incident.

Detective Hadley recorded their statements in his March 5 , 2003,

Preliminary Personnel Investigation Report, which is in

evidence. De Palo, too, made a brief oral statement about the

matter to Detective Hadley, which statement is recounted in the

investigative report. De Palo also gave an oral statement at a

c onference - for - the - record held on May 14, 2003, and this

statement is set forth in a Summary of Conference - for - the - Record

dated May 19, 2003, which is in evidence. The aforementioned

writings memorializing the several witness' prior oral

statements, having been prepared by (and thus filtered through)

someone other than the witness himself or herself, do not

necessarily capture the witness' actual words and therefore have

been accorded relatively little weight, as compared with the

testimony given under oath at hearing.

5. Ms. Hudson and Mr. Cowins are largely in agreement as

to what happened on January 23, 2003. Their version of the

incident, however, conflicts irreconcilably with De Palo's on

crucial points. After carefully reviewing the entire record a nd

reflecting upon the respective impressions that each of the

participant - eyewitnesses made on the undersigned at hearing, the

fact - finder has determined that De Palo's testimony, for the

most part, is more credible than that of Hudson/Cowins. To the

ext ent any finding of material fact herein is inconsistent with

the testimony of one witness or another, the finding reflects a

rejection of all such inconsistent testimony in favor of

evidence that the undersigned deemed to be more believable and

hence entit led to greater weight.

Material Historical Facts

6. On the morning of January 23, 2003, Ms. Hudson and Mr.

Cowins were standing and talking in the hallway outside the door

to Mr. Cowins' office. De Palo approached the pair as he walked

through the hallw ay on his way to the copy machine.

7. The hallway where this encounter took place is narrow

and does not afford sufficient space for three adults to pass by

each other with ease. Consequently, Ms. Hudson, whose feet hurt

almost every day due to preex isting conditions, requested that

De Palo please take care not to step on her feet when he passed. 2

This plea for caution was not given because De Palo had stepped

on Ms. Hudson's feet in the past, or because De Palo was

approaching in a manner that threa tened to injure her feet, but

rather because the passage was so narrow. (Ms. Hudson would

have said the same thing to any colleague who happened down the

hallway at that particular time.)

8. In response to Ms. Hudson's entreaty, De Palo remarked

that he would "sweep her off her feet" and help Ms. Hudson back

to her office. De Palo, who was in good spirits at the time,

made these comments in a lighthearted, even jovial manner. His

demeanor was good - natured —— not hostile, threatening, or

menacing.

9. D e Palo proceeded to pick Ms. Hudson up. At this

point, it is relevant to note that De Palo is a retired

firefighter and paramedic who had returned to teaching after a

28 - year career with the fire department. From his work

experience, De Palo was familiar with body mechanics, and he

knew how to lift and transport someone without injuring himself

or the person being carried.

10. To lift Ms. Hudson, De Palo placed one hand and arm on

her back at around shoulder level, and another hand and arm

under her leg s, at the knees. Once he had her off the ground,

De Palo held Ms. Hudson close to his body, more - or - less at his

waist level, in a semi - reclining position, her head somewhat

higher than her legs. (To envisage the way he held her, imagine

the iconic pictur e of the groom carrying his bride across the

threshold. 3 )

11. Ms. Hudson is relatively small woman —— she weighed

approximately 110 pounds at the time of the incident —— but

nevertheless De Palo likely could not have lifted her as he did,

the undersigned rea sonably infers, without her cooperation or

acquiescence. This is because, in order to pick her up, De Palo

needed to set his own feet and arms, during which maneuvering ——

which would have revealed his intentions —— Ms. Hudson easily

could have moved out of p osition ( e.g. by stepping forward), had

she objected to being lifted. 4 There is no persuasive evidence,

and thus it is not found, that De Palo grabbed Ms. Hudson and

forcibly wrestled her into his arms to be lifted. 5

12. Ms. Hudson did not protest or ob ject when De Palo

picked her up. Indeed, the persuasive evidence establishes that

she said nothing at all. The undersigned finds that had she

been physically or verbally resistant (which she was not), De

Palo would have refrained from lifting Ms. Hudson off her feet.

It is found as well that De Palo had no intent to harm Ms.

Hudson in any way, including through the infliction of emotional

distress. Rather, De Palo, the former fireman, believed that he

was doing a good deed, in a playful manner.

13. Wi th Ms. Hudson in his arms, De Palo walked a short

distance (15 feet or so) to her office, which is around a

corner, and hence cannot be seen, from Mr. Cowins' office. Mr.

Cowins did not follow along. The door to Ms. Hudson's office

was open, and De Palo carried her into the room, where he set

her down on her feet. De Palo did not drop Ms. Hudson onto the

floor, nor did she fall down, and any evidence suggesting

otherwise is explicitly rejected. De Palo bade Ms. Hudson a

good day and left. The entire ep isode had lasted no more than

30 seconds.

14. The next day, Ms. Hudson summoned De Palo to her

office and told him that his lifting and carrying her had been

inappropriate. De Palo agreed and apologized.

15. At some point after January 23, 2003, Ms. Hudson filed

a workers' compensation claim relating to the incident, during

which, she maintained, her back had been hurt. Ms. Hudson

remained off duty for about one month. While these particular

facts are not disputed, the evidence in the record does n ot

persuade the undersigned that Ms. Hudson was injured as a result

of De Palo's actions on January 23, 2003. 6

Ultimate Factual Determinations

16. De Palo's conduct on January 23, 2003, did not entail

threats, threatening behavior, or acts of violence. T herefore,

De Palo did not violate School Board Rule 6Gx13 - 4 - 1.08, which

proscribes violence in the workplace.

17. De Palo's conduct on January 23, 2003, constituted

horseplay. His spur - of - the - moment behavior, like most on - the -

job tomfoolery, while fool ish and inappropriate in hindsight,

and certainly neither authorized nor praiseworthy, was

nevertheless relatively harmless in the grand scheme. De Palo's

actions for a half - minute that day were plainly out of place and

unprofessional, but his conduct was not "unseemly" —— an adjective

that, as ordinarily used, denotes something offensive to good

taste. Moreover, De Palo did not use abusive or profane

language in the presence of Ms. Hudson and Mr. Cowins.

Therefore, it is determined that De Palo did not vi olate School

Board Rule 6Gx13 - 4A - 1.21, which prohibits unseemly conduct and

abusive or profane language.

18. The School Board has not identified, and the

undersigned has not located, a specific principle in Florida

Administrative Code Rule 6B - 1.006 (presc ribing the Principles of

Professional Conduct for the Education Profession in Florida)

that clearly proscribes the conduct in which De Palo engaged on

January 23, 2003. Accordingly, it is determined that De Palo is

not guilty of misconduct in office, an o ffense defined in

Florida Administrative Code Rule 6B - 4.009(3).

19. Finally, it is determined that De Palo's conduct was

not so serious as to impair his effectiveness in the school

system.

CONCLUSIONS OF LAW

I.

20. The Division of Administrative Hearin gs has personal

and subject matter jurisdiction in this proceeding pursuant to

Sections 120.569 and 120.57(1), Florida Statutes.

21. In an administrative proceeding to dismiss a teacher,

the school board, as the charging party, bears the burden of

proving , by a preponderance of the evidence, each element of the

charged offense(s). See McNeill v. Pinellas County School Bd. ,

678 So. 2d 476, 477 (Fla. 2d DCA 1996); Sublett v. Sumter County

School Bd. , 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995).

22. De Palo 's guilt or innocence is a question of ultimate

fact to be decided in the context of each alleged violation.

McKinney v. Castor , 667 So. 2d 387, 389 (Fla. 1st DCA 1995);

Langston v. Jamerson , 653 So. 2d 489, 491 (Fla. 1st DCA 1995).

II.

23. In its Notic e of Specific Charges served October 13,

2003, the School Board advanced three theories for De Palo's

removal: Violence in the Workplace (Count I); Conduct

Unbecoming a School Board Employee (Count II); and Misconduct in

Office (Count III).

24. Counts I and II are grounded in School Board Rules,

namely School Board Rule 6Gx13 - 4 - 1.08 and School Board Rule

6Gx13 - 4A - 1.21. These Rules, like all rules applicable to only

one school district, are not published in the Florida

Administrative Code. See § 120.5 5(1)(a)2., Fla. Stat.

25. The School Board neither introduced copies of its

Rules into evidence nor asked that official recognition be taken

of them. Thus, although the undersigned thinks he knows the

contents of these Rules, based on experience and acc ess to

DOAH's Recommended Orders, he does not have before him, in this

record, the complete text of either Rule as offered during the

hearing, where the accused party would have had opportunities to

inspect and object to the admission or official recogniti on

thereof.

26. Though unlikely to be applauded on appeal, it is

possibly within the undersigned's discretion to initiate the

process, on his own motion, for taking official recognition of,

or reopening the record to receive in evidence, the pertinent

Sc hool Board Rules. See Collier Medical Center, Inc. v. State

Dept. of Health and Rehabilitative Services , 462 So. 2d 83, 86

(Fla. 1st DCA 1985)(Allowing "a party to produce additional

evidence after the conclusion of an administrative hearing below

would s et in motion a never - ending process of confrontation and

cross - examination, rebuttal and surrebuttal evidence, a result

not contemplated by the Administrative Procedures [ sic ] Act.").

Such a process would entail (a) requesting copies of the Rules

and (b) affording each party an opportunity to present

information relevant to the propriety of supplementing the

record in this manner. Cf. § 90.204, Fla. Stat. (setting forth

the procedure for sua sponte taking judicial notice of a fact).

The undersigned is di sinclined to do this, however, believing it

reasonable to insist that the School Board produce at hearing,

without prompting, a complete copy of any unpublished rule upon

which it relies —— or suffer the consequence of failure.

27. The ordinary consequen ce of failing properly to

introduce a pertinent rule would be, of course, a determination

that the School Board had failed to prove a violation of the

rule —— and that is what would happen here. The undersigned

cannot ultimately determine that De Palo viola ted either School

Board Rule 6Gx13 - 4 - 1.08 or School Board Rule 6Gx13 - 4A - 1.21,

regardless of what the other evidence might establish, unless he

can examine the Rules in question. Thus, the undersigned's

refusal to initiate a process for receiving these Rul es into the

record necessarily would be outcome determinative as to Counts I

and II.

28. It so happens in this case, however, that when the

undersigned applies what he thinks the Rules in question provide

to the historical facts as found above, ultimate determinations

of innocence result. Thus, in this case, receiving the Rules

would not change the outcome, assuming the Rules say what the

undersigned believes they say. The question of whether to

receive the Rules sua sponte will therefore be sidestepped . For

the purposes of this Recommend Order, it will simply be assumed,

for the sake of reaching the merits, that the Rules are properly

before the undersigned. 7

III.

29. In this section, the three charged offenses will be

examined one - by - one, putting a side momentarily the element of

"resulting ineffectiveness," which, being common to all counts,

will be addressed separately in the next section. For

organizational convenience, the counts will be taken up in

reverse order, starting with Count III.

A. Mi sconduct in Office

30. The School Board is authorized to terminate the

employment of a teacher such as De Palo "only for just cause."

See § 1012.33 (1)(a), Fla. Stat.; see also § 1012.33(6)(a), Fla.

Stat. ("Any member of the instructional staff . . . ma y be

suspended or dismissed at any time during the term of the

contract for just cause[.]") The term "just cause”

includes, but is not limited to, the

following instances, as defined by rule of

the State Board of Education: misconduct in

office, incomp etency, gross insubordination,

willful neglect of duty, or conviction of a

crime involving moral turpitude.

§ 1012.33(1)(a), Fla. Stat.

31. The term “misconduct in office” is defined in Florida

Administrative Code Rule 6B - 4.009, which prescribes the

"c riteria for suspension and dismissal of instructional

personnel" and provides, in pertinent part, as follows:

(3) Misconduct in office is defined as a

violation of the Code of Ethics of the

Education Profession as adopted in Rule 6B -

1.001, F.A.C., and the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B -

1.006, F.A.C., which is so serious as to

impair the individual's effectiveness in the

school system.

32. The Code of Ethics of the Education Profession

(a dopted in Florida Administrative Code Rule 6B - 1.001) and the

Principles of Professional Conduct for the Education Profession

in Florida (adopted in Florida Administrative Code Rule 6B -

1.006), which are incorporated in the definition of "misconduct

in offic e," provide as follows:

6B - 1.001 Code of Ethics of the Education

Profession in Florida.

(1) The educator values the worth and

dignity of every person, the pursuit of

truth, devotion to excellence, acquisition

of knowledge, and the nurture of democratic

c itizenship. Essential to the achievement

of these standards are the freedom to learn

and to teach and the guarantee of equal

opportunity for all.

(2) The educator’s primary professional

concern will always be for the student and

for the development of th e student’s

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and integrity.

(3) Aware of the importance of maintaining

the respect and confidence of one's

colleagues, of studen ts, of parents, and of

other members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

* * *

6B - 1.006 Principles of Professional

Conduct for the Education Profession in

Florida.

(1) The follo wing disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

(2) Violation of any of these principles

shall subject the individual to revocation

or suspension of the individual educator’s

certific ate, or the other penalties as

provided by law.

(3) Obligation to the student requires that

the individual:

(a) Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the student’s mental

and/or physical health and/or safety.

(b) Shall not unreasonably restrain a

student from independent action in pursuit

of learning.

(c) Shall not unreasonably deny a student

access to diverse points of view.

(d) Shall not intentionally suppress or

distort subject matter relev ant to a

student’s academic program.

(e) Shall not intentionally expose a

student to unnecessary embarrassment or

disparagement.

(f) Shall not intentionally violate or deny

a student’s legal rights.

(g) Shall not harass or discriminate

against any stude nt on the basis of race,

color, religion, sex, age, national or

ethnic origin, political beliefs, marital

status, handicapping condition, sexual

orientation, or social and family background

and shall make reasonable effort to assure

that each student is pr otected from

harassment or discrimination.

(h) Shall not exploit a relationship with a

student for personal gain or advantage.

(i) Shall keep in confidence personally

identifiable information obtained in the

course of professional service, unless

disclos ure serves professional purposes or

is required by law.

(4) Obligation to the public requires that

the individual:

(a) Shall take reasonable precautions to

distinguish between personal views and those

of any educational institution or

organization with w hich the individual is

affiliated.

(b) Shall not intentionally distort or

misrepresent facts concerning an educational

matter in direct or indirect public

expression.

(c) Shall not use institutional privileges

for personal gain or advantage.

(d) Shall a ccept no gratuity, gift, or

favor that might influence professional

judgment.

(e) Shall offer no gratuity, gift, or favor

to obtain special advantages.

(5) Obligation to the profession of

education requires that the individual:

(a) Shall maintain honest y in all

professional dealings.

(b) Shall not on the basis of race, color,

religion, sex, age, national or ethnic

origin, political beliefs, marital status,

handicapping condition if otherwise

qualified, or social and family background

deny to a colleague professional benefits or

advantages or participation in any

professional organization.

(c) Shall not interfere with a colleague’s

exercise of political or civil rights and

responsibilities.

(d) Shall not engage in harassment or

discriminatory conduct wh ich unreasonably

interferes with an individual’s performance

of professional or work responsibilities or

with the orderly processes of education or

which creates a hostile, intimidating,

abusive, offensive, or oppressive

environment; and, further, shall ma ke

reasonable effort to assure that each

individual is protected from such harassment

or discrimination.

(e) Shall not make malicious or

intentionally false statements about a

colleague.

(f) Shall not use coercive means or promise

special treatment to in fluence professional

judgments of colleagues.

(g) Shall not misrepresent one’s own

professional qualifications.

(h) Shall not submit fraudulent information

on any document in connection with

professional activities.

(i) Shall not make any fraudulent sta tement

or fail to disclose a material fact in one’s

own or another’s application for a

professional position.

(j) Shall not withhold information

regarding a position from an applicant or

misrepresent an assignment or conditions of

employment.

(k) Shall p rovide upon the request of the

certificated individual a written statement

of specific reason for recommendations that

lead to the denial of increments,

significant changes in employment, or

termination of employment.

(l) Shall not assist entry into or

co ntinuance in the profession of any person

known to be unqualified in accordance with

these Principles of Professional Conduct for

the Education Profession in Florida and

other applicable Florida Statutes and State

Board of Education Rules.

(m) Shall self - report within forty - eight

(48) hours to appropriate authorities (as

determined by district) any arrests/charges

involving the abuse of a child or the sale

and/or possession of a controlled substance.

Such notice shall not be considered an

admission of guil t nor shall such notice be

admissible for any purpose in any

proceeding, civil or criminal,

administrative or judicial, investigatory or

adjudicatory. In addition, shall self -

report any conviction, finding of guilt,

withholding of adjudication, commitment to a

pretrial diversion program, or entering of a

plea of guilty or Nolo Contendre for any

criminal offense other than a minor traffic

violation within forty - eight (48) hours

after the final judgment. When handling

sealed and expunged records disclosed u nder

this rule, school districts shall comply

with the confidentiality provisions of

Sections 943.0585(4)(c) and 943.059(4)(c),

Florida Statutes.

(n) Shall report to appropriate authorities

any known allegation of a violation of the

Florida School Code or State Board of

Education Rules as defined in Section

231.28(1), Florida Statutes.

(o) Shall seek no reprisal against any

individual who has reported any allegation

of a violation of the Florida School Code or

State Board of Education Rules as defined in

Section 231.28(1), Florida Statutes.

(p) Shall comply with the conditions of an

order of the Education Practices Commission

imposing probation, imposing a fine, or

restricting the authorized scope of

practice.

(q) Shall, as the supervising

administrator, cooperate with the Education

Practices Commission in monitoring the

probation of a subordinate.

33. As shown by a careful reading of Rule 6B - 4.009, 8 the

offense of misconduct in office consists of three elements: (1)

A serious violation of a specific r ule 9 that (2) causes (3) an

impairment of the employee's effectiveness in the school system.

The second and third elements can be can be conflated, for ease

of reference, into one component: "resulting ineffectiveness."

34. A school board seeking to t erminate an employee on the

basis of misconduct in office must prove "each and every element

of the charge." MacMillan v. Nassau County School Bd. , 629 So.

2d 226 (Fla. 1st DCA 1993).

35. Here, the School District did not allege or prove, nor

has it arg ued, that De Palo violated a particular Principle of

Professional Conduct. Further, none of the Principles appear,

to the undersigned, to be obviously applicable to the situation

at hand. Accordingly, it is concluded that the offence of

misconduct in off ice has not been established.

B. Conduct Unbecoming a School Board Employee

36. The School Board grounded its charge of "conduct

unbecoming a school board employee" on De Palo's alleged

violation of School Board Rule 6Gx13 - 4A - 1.21, which provides

(the u ndersigned assumes) as follows:

All persons employed by the School Board of

Miami - Dade County, Florida are

representatives of the Miami - Dade County

Public Schools. As such, they are expected

to conduct themselves, both in their

employment and in the commu nity, in a manner

that will reflect credit upon themselves and

the school system.

Unseemly conduct or the use of abusive

and/or profane language in the workplace is

expressly prohibited.

37. This particular offense is not one of the just causes

enumerat ed in Section 1012.33(1)(a), Florida Statutes, although

that statutory list, by its plain terms, is not intended to be

exclusive. Yet, the doctrine of ejusdem generis 10 requires that

"conduct unbecoming" be treated as a species of misconduct in

office, so that, to justify termination, a violation of School

Board Rule 6Gx13 - 4A - 1.21 must be "so serious as to impair the

individual's effectiveness in the school system." See Miami -

Dade County School Bd. v. Wallace , DOAH Case No. 00 - 4392, 2001

WL 335989, *12 (Fl a.Div.Admin.Hrgs. Apr. 4, 2001), adopted in

toto , May 16, 2001.

38. This case does not involve allegations of abusive or

profane language in the workplace. Thus, the question whether

De Palo violated School Board Rule 6Gx13 - 4A - 1.21 turns on

whether h is conduct was "unseemly."

39. This is admittedly a fairly close question, made more

difficult by the fact that the term "unseemly conduct," which is

not defined in the Rule, has a kind of "I know it when I see it"

quality. In view of the Rule's elastic ity, it would be possible

without straining to label De Palo's inappropriate behavior

"unseemly." The word "unseemly," however, usually suggests

inappropriateness manifesting indecency, bad taste, or poor form

( e.g. a crude joke in mixed company), and whi le De Palo's

conduct displayed a little of each, it was a lot more sophomoric

than indecorous —— a silly, rather than unseemly, prank. Thus, it

is concluded, De Palo acted inappropriately but not in violation

of School Board Rule 6Gx13 - 4A - 1.21.

C. Violence in the Workplace

40. In Count I of its Notice of Specific Charges, the

School Board accused De Palo of violating School Board Rule

6Gx13 - 4 - 1.08, which (apparently) provides in pertinent part:

Nothing is more important to Dade County

Public Schools (DCPS) than protecting the

safety and security of its students and

employees and promoting a violence - free work

environment. Threats, threatening behavior,

or acts of violence against students,

employees, visitors, or other individuals by

anyone on DCPS propert y will not be

tolerated. Violations of this policy may

lead to disciplinary action which includes

dismissal, arrest, and/or prosecution.

(Emphasis added.) The School Board neither alleged nor proved

that De Palo engaged in "threats" or "threatening be havior."

The questions at hand, therefore, are: (a) whether De Palo

committed an act of violence against Ms. Hudson; and, if so, (b)

whether the act was "so serious as to impair [De Palo's]

effectiveness in the school system." Cf. Miami - Dade County

Scho ol Bd. v. Wallace , DOAH Case No. 00 - 4392, 2001 WL 335989,

*12 (Fla.Div.Admin.Hrgs. Apr. 4, 2001), adopted in toto , May 16,

2001.

41. In support of its case, the School Board asserts

(correctly, as far as it goes) that School Board Rule 6Gx13 - 4 -

1.08 encomp asses acts that constitute battery under the criminal

law and tort law. From this premise, the School Board turns to

statutes and cases dealing with battery, a wrong of which the

essence is the intentional touching of another person against

such person's will. As the School Board then points out, it is

often not necessary, in making out a battery case, to prove that

the offensive contact was actually harmful or even intended to

cause harm. Thus, the School Board concludes, De Palo violated

School Board R ule 6Gx13 - 4 - 1.08 because he intentionally touched

Ms. Hudson against her will.

42. The flaw in the School Board's logic is its casual

equation of "acts of violence" (which the Rule proscribes) with

"battery" (which the Rule does not mention). The fact is ,

although the two categories of misbehavior overlap to some

extent, they are not synonymous. And significantly, of the two,

"battery" is the broader, more inclusive class.

43. The term "violence" is commonly understood to mean an

"[u]njust or unwarrante d exercise of force, usually with the

accompaniment of vehemence, outrage, or fury." Black's Law

Dictionary 1408 (5th ed. 1979). A battery —— that is, an

offensive or nonconsensual touching —— can be committed with or

without violence. 11 Thus, while all or m ost acts of violence by

one person against another constitute battery, 12 all forms of

battery clearly do not entail acts of violence. 13

44. In this case, the evidence does not persuade the

undersigned that De Palo committed an act of violence. 14 De

Pal o, therefore, is not guilty of violating School Board Rule

6Gx13 - 4 - 1.08.

IV.

45. To terminate De Palo's employment, the School Board

needed to show that his conduct not only violated a specific

rule, but also that the violation was so serious as to impai r

his effectiveness in the school system. Although the School

Board's failure to prove that De Palo violated a specific rule

is reason enough to recommend against termination, the issue of

resulting ineffectiveness will be discussed anyway, providing an

a lternative basis for decision.

46. There was little, if any, direct evidence that De

Palo's effectiveness in the school system was impaired as a

result of the incident of January 23, 2003. On this issue,

therefore, the Board must rely on inferences in a id of its

proof.

47. For the School Board to profit from an inference of

resulting ineffectiveness, it must establish two things: (1)

that the violation was not of a private immoral nature, and (2)

that, on the basis of past experience as drawn from the fund of

common knowledge, the violation would not, in the ordinary

course of events, have failed to impair the individual's

effectiveness in the school system. See Miami - Dade County

School Bd. v. Wallace , DOAH Case No. 00 - 4392, 2001 WL 335989,

*19 (Fla.D iv.Admin.Hrgs. Apr. 4, 2001), adopted in toto , May 16,

2001.

48. The allegations against De Palo do not involve

misconduct of a private immoral nature, so the first condition

is satisfied. The undersigned is not persuaded, however, that

De Palo's carry ing of Ms. Hudson back to her office could not

have happened without impairing De Palo's effectiveness in the

school system. Rather, taking into consideration all of the

evidence in this case, it is determined that De Palo continued

to be effective, notwi thstanding the incident of January 23,

2003.

49. Thus, while an inference of resulting ineffectiveness

might be legally permissible under the circumstances of this

case, such an inference is not factually justified and hence has

not been drawn. Ultimate ly, therefore, the School Board failed

to prove that De Palo's effectiveness in the school system was

impaired by his conduct. For that independent reason, he must

be found not guilty of the charges brought against him.

RECOMMENDATION

Based on the forego ing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board enter a final order:

(a) exonerating De Palo of all charges brought against him in

this proceeding; (b) providing that De Palo be immediately

reinstated to the position from wh ich he was suspended without

pay; and (c) awarding De Palo back salary, plus benefits, that

accrued during the suspension period, together with interest

thereon at the statutory rate.

DONE AND ENTERED this 20th day of May, 2004, in

Tallahassee, Leon Coun ty, Florida.

S

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (8 50) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of May, 2004.

ENDNOTES

1 / Petitioner's post - hearing Motion to Supplement the Record was

granted on May 18, 2004, and consequently the record has been

supplemented with a copy o f Article XXI of the Contract Between

the Miami - Dade County Public Schools and the United Teachers of

Dade.

2 / As an Assistant Principal, Ms. Hudson was De Palo's immediate

supervisor; thus, she had the authority to issue directives to

him. Ms. Hudson 's statement to De Palo regarding her feet was

not , however, an order, command, or instruction, as from a boss

to his subordinate, but merely a polite request, analogous to

her asking him to "please pass the salt" during lunch.

3 / In its Proposed Recomme nded Order, the School Board argues

that this "analogy" is inappropriate because it implies that Ms.

Hudson consented, as would a new wife, to be carried in this

fashion. The undersigned, however, uses the image here simply

in aide of explaining how De Pa lo carried Ms. Hudson, not to

insinuate that Ms. Hudson consented.

4 / It should be understood that lifting even a relatively small

adult from a standing position cannot be done suddenly and

immediately; several steps must be taken. For one thing, the

pe rson doing the lifting needs to set his feet and legs in such

a way as to establish a base of support, to maintain his

balance. It is reasonably inferred that this is what De Palo

did. Moreover, it is inferred that, more likely than not, De

Palo used his leg muscles to lift Ms. Hudson off the ground,

which required him to bend at the knees after setting his feet.

These movements would not have taken De Palo a great deal of

time, to be sure, but they would have signaled to Ms. Hudson

what he was doing (es pecially coupled with his comment about

sweeping her off her feet) —— and given her time to react.

Although Ms. Hudson and Mr. Cowins described the lifting as a

kind of "sucker punch" (albeit without using that term), coming

suddenly and without warning, th e fact - finder rejects this

characterization as implausible.

5 / It is of passing interest that the record gives no reason to

suppose De Palo caused a commotion in the hallway or even

attracted any attention. One would expect that had there been a

violent struggle, altercation, or other disturbance of the

peace, someone might have emerged from an office to see what was

going on; apparently, however, no one did.

6 / There is no nonhearsay expert testimony in evidence, as from

a treating or examining physic ian, concerning Ms. Hudson's

condition or its likely cause(s). The out - of - court statement

attributed to Dr. Krestow, which appears in Detective Hadley's

investigative report, is simply hearsay for which no exception

was (or probably could have been) estab lished. The undersigned

does not believe that Dr. Krestow's hearsay statement (assuming

Detective Hadley recorded it accurately) explains or supplements

other, nonhearsay evidence, and therefore it cannot legitimately

be used for any fact - finding purpose. See § 120.57(1)(c), Fla.

Stat. In any event, to the extent that the Dr. Krestow hearsay

could be used in aid of other evidence, the undersigned regards

it as having little probative value.

7 / The undersigned leaves open the possibility that subsequent

developments might necessitate his making the discretionary

decision whether to reopen the record or take official

recognition of the Rules in question.

8 / Rules 6B - 4.009, 6B - 1.001, and 6B - 1.006, Florida

Administrative Code, are penal in nature and must be strictly

construed, with ambiguities being resolved in favor of the

employee. See Rosario v. Burke , 605 So. 2d 523, 524 (Fla. 2d

DCA 1992); Lester v. Department of Professional and Occupational

Regulations , 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

9 / To elaborate on this a bit, the Rule plainly requires that a

violation of both the Ethics Code and the Principles of

Professional Education be shown, not merely a violation of one

or the other. The precepts set forth in the Ethics Code,

however, are so general and so obviously aspirational as to be

of little practical use in defining normative behavior. It is

one thing to say, for example, that teachers must "strive for

professional growth". See Fla. Admin. Code R. 6B - 1.001(2). It

is quite another to define the behavior which constitutes such

striving in a way that puts teachers on notice concerning what

conduct is forbidden. The Principles of Professional Conduct

accomplish the latter goal, enumerating specific " do s" and

" don't s." Thus, it is conclu ded that that while any violation

of one of the Principles would also be a violation of the Code

of Ethics, the converse is not true. Put another way, in order

to punish a teacher for misconduct in office, it is necessary

but not sufficient that a violati on of a broad ideal articulated

in the Ethics Code be proved, whereas it is both necessary and

sufficient that a violation of a specific rule in the Principles

of Professional Conduct be proved. It is the necessary and

sufficient condition to which the te xt refers.

10 / See generally Green v. State , 604 So. 2d 471, 473 (Fla.

1992)("Under the doctrine of ejusdem generis, where an

enumeration of specific things is followed by some more general

word, the general word will usually be construed to refer to

thin gs of the same kind or species as those specifically

enumerated."); see also Robbie v. Robbie , 788 So. 2d 290, 293

n.7 (Fla. 4th DCA 2000)(When, in implementing a non - exhaustive

statutory listing, the use of an unenumerated criterion is

indicated, "that ad hoc factor will have to bear a close

affinity with those enumerated in the statute —— i.e., the factor

employed must be ejusdem generis with the enumerated ones.").

11 / For a good example of a nonviolent battery, read Gouveia v.

Phillips , 823 So. 2d 215 ( Fla. 4th DCA 2002), a scholarly

opinion wherein the court explains how a surgeon who operates

without his patient's consent commits a battery against the

patient for which damages can be awarded, even if the surgery

was performed competently according to t he standard of care.

12 / For this reason, School Board Rule 6Gx13 - 4 - 1.08 does

encompass acts that constitute battery, namely, those which are

accompanied by violence.

13 / In other words, acts of violence (by one person against

another) are, as a class, a subset of the set of all batteries,

not the other way around, as the School Board mistakenly posits.

14 / It is not necessary to decide whether the teacher committed

a nonviolent battery against Ms. Hudson, for School Board Rule

6Gx13 - 4 - 1.08 does not proh ibit such batteries.

COPIES FURNISHED :

Marcelle B. Poirier, Esquire

The Law Firm of Marcelle Poirier

2701 South Bayshore Drive, Suite 402

Miami, Florida 33133

Denise Wallace, Esquire

Miami - Dade County Public Schools

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Daniel J. Woodring, General Counsel

Department of Education

325 West Gaines Street, Room 1244

Tallahassee, Florid a 32399 - 0400

Jim Horne, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Merrett R. Stierheim

Interim Superintendent

Miami - Dade County School Board

1450 NE Second Avenue, No. 91 2

Miami, Florida 33132 - 1394

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency t hat

will issue the Final Order in this case.