04-002156 Miami-Dade County School Board vs. Larry J. Williams Status: Closed Recommended Order on Thursday, December 2, 2004.

Summary: Petitioner failed to prove that a teacher, who pushed a student who had just called him a "black ass nigger," should be suspended without pay for 30 workdays. Recommend a written reprimand for a technical violation of the corporal punishment rule.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 04 - 2156

)

LARRY J. WILLIAMS, )

)

Respondent. )

)

RECOMMENDED ORDER

This cas e came before Administrative Law Judge John G.

Van Laningham for final hearing on October 6, 2004, in Miami,

Florida.

APPEARANCES

For Petitioner: Madelyn P. Schere, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 4 00

Miami, Florida 33132

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

2595 Tampa Road, Suite J

Palm Harbor, Florida 34684

STATEMENT OF THE ISSUE

The issue in this case is wheth er a district school board

is entitled to suspend a teacher without pay for just cause

based principally upon the allegation that he slapped a student.

PRELIMINARY STATEMENT

At its regular meeting on June 16, 2004, Petitioner School

Board of Miami - Dad e County suspended Respondent Larry J.

Williams for 30 workdays, without pay, from his position as a

member of the district's instructional staff. This action

resulted from allegations that on January 30, 2004, Mr. Williams

had knocked a student named J. L. out of his desk, causing the

student to hit his head on the floor, and then had slapped the

student after J. L. uttered a profanity.

Having been notified in advance of Petitioner's likely

decision, Mr. Williams' legal counsel had requested a for mal

hearing by letter dated June 11, 2004. Thus, on June 18, 2004,

the matter was referred to the Division of Administrative

Hearings ("DOAH") for further proceedings. There, the final

hearing was scheduled for October 6 and 7, 2004.

At the final hearin g, Petitioner called the following

witnesses: Paul Greenfield, District Director, Office of

Professional Standards; and seven minor students, including the

alleged victim, J. L. In addition to these witnesses,

Petitioner offered into evidence Petitioner' s Exhibits 1 through

11, all of which were admitted.

Mr. Williams testified on his own behalf and offered no

exhibits.

The final hearing transcript was filed on October 29, 2004.

Each party timely filed a Proposed Recommended Order before the

establis hed deadline, which was November 8, 2004.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2004 Florida Statutes.

FINDINGS OF FACT

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

Petitioner in this case, is the constitu tional entity authorized

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

School System.

2. As of the final hearing, Respondent Larry J. Williams

("Williams") had been employed as a teacher in the Miami - Dade

County Public School System for approximately 16 years. At all

times relevant to this case, Williams was assigned to Parkway

Middle School, where he taught students with disabilities.

3. The events giving rise to this case occurred on January

30, 2004. About 20 minutes into one of Wi lliams' sixth grade

classes that day, the assistant principal brought a student

named J. L. into the room. (J. L. had been roaming the hallways

without authorization.) Upon his late arrival, J. L. took a

seat, put his head down, and promptly fell asleep.

4. Williams walked over to J. L.'s desk and shook it,

asking J. L. if he were all right. Evidently startled, J. L.

jumped up and shouted at Williams: "What the fuck are you

doing? You ain't my daddy, you black ass nigger," or words to

that effect. 1

5. Williams, who is a black man, was taken aback. "What

did you say?" he replied.

6. "What the fuck are you bothering me for, you black ass

nigger?" answered the student, who was now standing close to

Williams.

7. At that point, Williams quickly pu shed J. L. away.

Williams made physical contact with J. L. and probably touched

his face or head. This contact was, it is found, more of a

shove than a blow. 2 J. L. then left the classroom and went to

the office, to report that Williams had hit him. 3

8 . After J. L. had left, a student remarked, "Oh Mr.

Williams, you [ sic ] in trouble now." Not wanting to lose

control of his classroom, Williams tried to downplay the

incident, telling the student that nothing had happened. The

undersigned rejects as unf ounded the School Board's allegation

that Williams told his class to lie about the matter.

9. Before the period was over, the school administration,

acting on the word of J. L, a student who less than an hour

earlier had been wondering about the hal ls and hence needed to

be hauled into class by an assistant principal, pulled Williams

out of his room and sent him home. 4 Williams was not allowed to

return to work until September 23, 2004. He therefore missed

about seven months of school, namely the r emainder of the 2003 -

04 school year plus the beginning of the 2004 - 05 school year.

10. For using vulgar language and brazenly insulting

Williams with a hateful racial epithet, J. L. was suspended for

five days.

11. At its regular meeting on June 16, 20 04, the School

Board voted to accept the recommendation of Williams' principal

that the teacher be suspended without pay for 30 workdays.

(This means docking six weeks' worth of Williams' wages, or 12

percent of his annual salary.)

Ultimate Factual Dete rminations

12. Williams did not fail to make a reasonable protective

effort to guard J. L. against a harmful condition, in violation

of Florida Administrative Code Rule 6B - 1.006(3)(a).

13. Williams did not violate School Board Rule 6Gx13 - 4A -

1.21, which p rohibits unseemly conduct and abusive or profane

language.

14. Williams' conduct on January 30, 2004, did not entail

threats, threatening behavior, or acts of violence. Therefore,

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

proscribes violen ce in the workplace.

15. Williams committed a technical violation of School

Board Rule 6Gx13 - 5D - 1.07, pursuant to which the administration

of corporal punishment is strictly prohibited. This violation

was not so serious, however, as to impair Williams'

effectiveness in the school system.

16. Accordingly, it is determined that Williams is not

guilty of misconduct in office, an offense defined in Florida

Administrative Code Rule 6B - 4.009(3).

CONCLUSIONS OF LAW

17. The Division of Administrative Hearin gs has personal

and subject matter jurisdiction in this proceeding pursuant to

Sections 1012.33(6)(a)2., 120.569, and 120.57(1), Florida

Statutes.

18. In an administrative proceeding to suspend or 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); MacMillan v. Nassau County School Bd. , 629 So. 2d

226 (Fla. 1st DCA 1993).

19. Williams' 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 (F la. 1st DCA 1995);

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

20. In its Notice of Specific Charges served on June 22,

2004, the School Board advanced four theories for suspending

Williams: Conduct Unbecoming a School Board Employee (Count I);

Administration of Corporal Punishment (Count II); Violence in

the Workplace (Count III); and Misconduct in Office (Counts IV,

V, and VI).

21. In the following discussion, the charged offenses will

first be examined one - by - one, putting aside momentarily the

element of "resulting ineffectiveness," which, being common to

all counts, will thereafter be addressed separately.

A. Misconduct in Office

22. The School Board is authorized to suspend or dismiss

[a]ny member of the instructional staf f

. . . at any time during the term of [his

teaching] contract for just cause . . . .

The district school board must notify the

employee in writing whenever charges are

made against the employee and may suspend

such person without pay; but, if the charges

are not sustained, the employee shall be

immediately reinstated, and his or her back

salary shall be paid.

§ 1012.33(6)(a), Fla. Stat. The term "just cause"

includes, but is not limited to, the

following instances, as defined by rule of

the State Boa rd of Education: misconduct in

office, incompetency, gross insubordination,

willful neglect of duty, or conviction of a

crime involving moral turpitude.

§ 1012.33(1)(a), Fla. Stat.

23. The term "misconduct in office" is defined in Florida

Administrati ve Code Rule 6B - 4.009, which prescribes the

"criteria 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 Professio n 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.

24. The Code of Ethics of the Education Profession

(adopted 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 incorpor ated in the definition of "misconduct

in office," provide in pertinent part 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 excel lence, acquisition

of knowledge, and the nurture of democratic

citizenship. 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

conc ern will always be for the student and

for the development of the student’s

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and integrity.

(3) Aware of the importance of maint aining

the respect and confidence of one's

colleagues, of students, of parents, and of

other members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

* * *

6B - 1.006 Principles of Professional Co nduct

for the Education Profession in Florida.

(1) The following 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 r evocation

or suspension of the individual educator’s

certificate, 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

le arning and/or to the student's mental

and/or physical health and/or safety.

25. As shown by a careful reading of Rule 6B - 4.009, 5 the

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

A serious violation of a specific rule 6 that (2) causes (3) an

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

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

reference, into one component: "resulting ineffectiveness."

26. The School Board alleges that Williams violated

Florid a Administrative Code Rule 6B - 1.006(3)(a), which imposes

on teachers the affirmative duty to protect students from

harmful conditions. The standard against which a teacher's

performance of this duty is measured is an objective one: he

must make a "reason able effort." Therefore, a teacher's

subjective intent is not determinative of whether Rule 6B -

1.006(3)(a) was violated. See John Rolle v. Charlie Crist,

Commissioner of Education , DOAH Case No. 01 - 2644, 2001 WL

1638505, *9 (Fla.Div.Admin.Hrgs. Dec. 14, 2001), adopted in

toto , Feb. 28, 2002.

27. The specific standard of care owed under legal duty is

typically a question of fact. See Dennis v. City of Tampa , 581

So. 2d 1345, 1350 (Fla. 2d DCA), rev. denied , 591 So. 2d 181

(Fla. 1991); Spadafora v. Carlo , 569 So. 2d 1329, 1331 (Fla. 2d

DCA 1990). As such, it is susceptible to ordinary methods of

proof. Accordingly, when a teacher is charged with having

failed to make a reasonable protective effort under Rule 6B -

1.006(3)(a), Florida Administrative Code, the School Board must

adduce: (1) evidence regarding the teacher's actual actions in

the face of a harmful condition; (2) evidence from which the

trier of fact can conceptualize a standard of conduct in the

form of the action of a "reasonable teacher" und er the same or

similar circumstances; and (3) a comparison of the teacher's

conduct against the theoretical, objectively reasonable standard

of conduct. See Rolle , 2001 WL 1638505 at *9; cf. Wal - Mart

Stores, Inc. v. King , 592 So. 2d 705, 707 (Fla. 5th DCA 1991),

rev. denied , 602 So. 2d 942 (Fla. 1992)(enumerating facts that

must be proved in trial of premises liability action).

28. The School Board has not clearly articulated what,

exactly, it believes was the harmful condition. The evidence

shows, howev er, that J. L. created a harmful condition by

telling Williams, in effect, to "fuck off" and calling the

teacher a "black ass nigger." By using such foul and

derogatory language —— fighting words, basically —— J. L. exposed

himself to retaliation. The quest ion, then, becomes whether

Williams acted reasonably to protect J. L. from himself —— or, put

another way, whether Williams acted reasonably to prevent J. L.

from behaving in such a way as to endanger himself.

29. Alternatively, one might argue (though th e School

Board has not) that the teacher, having been inflamed by J. L.'s

vulgar and racist taunting, was the harmful condition, under

which theory the question would be whether Williams acted

reasonably to protect J. L. from Williams —— or, put differently,

whether Williams exercised reasonable self - restraint in the face

of extreme provocation.

30. As to the question whether Williams acted reasonably

to prevent J. L. from misbehaving, there is no persuasive

evidence of a standard of conduct, and even more f undamental, no

evidence that J. L.'s outburst was reasonably foreseeable.

There is, therefore, no sufficient basis for a finding that

Williams failed to make a reasonable effort to prevent J. L.

from exposing himself to harm.

31. As for the alternative theory, there is no persuasive

evidence from which the undersigned can conceptualize a standard

of conduct in the form of action a reasonable teacher should

take upon being called a "black ass nigger" in front of his

class. Perhaps a more patient teacher would have handled J.

L.'s extraordinarily malicious verbal abuse with greater skill

and aplomb. On the other hand, Williams did, in fact, exercise

self - restraint, in that he did not do anything to hurt J. L.,

under circumstances in which a less discipli ned and composed

teacher might well have. At bottom, the undersigned is not

persuaded that Williams failed to make a reasonable protective

effort to protect J. L. from Williams.

B. Conduct Unbecoming a School Board Employee

32. The School Board grounde d its charge of "conduct

unbecoming a school board employee" on Williams' alleged

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

follows:

All persons employed by the School Board of

Miami - Dade County, Florida are

representatives of the Mia mi - Dade County

Public Schools. As such, they are expected

to conduct themselves, both in their

employment and in the community, in a manner

that will reflect credit upon themselves and

the school system.

Unseemly conduct or the use of abusive

and/or prof ane language in the workplace is

expressly prohibited.

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

enumerated in Section 1012.33(1)(a), Florida Statutes, although

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

exclusive. Ye t, the doctrine of ejusdem generis 7 requires that

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

office, so that, to justify suspension or termination, a

violation of School Board Rule 6Gx13 - 4A - 1.21 must be "so serious

as to impair the indiv idual's effectiveness in the school

system." See Miami - Dade County School Board v. Michael W.

DePalo , DOAH Case No. 03 - 3242, 2004 WL 1151002, *9

(Fla.Div.Admin.Hrgs. May 20, 2004), adopted in toto , July 14,

2004; Miami - Dade County School Bd. v. Wallace , D OAH Case No. 00 -

4392, 2001 WL 335989, *12 (Fla.Div.Admin.Hrgs. Apr. 4, 2001),

adopted in toto , May 16, 2001.

34. This case does not involve allegations of abusive or

profane language in the workplace (by the teacher). Thus, the

question whether Willi ams violated School Board Rule 6Gx13 - 4A -

1.21 turns on whether his conduct was "unseemly."

35. Unfortunately for those who must abide by and apply

it, the Rule does not define the term "unseemly conduct." The

word "unseemly," however, usually suggests in appropriateness

manifesting indecency, bad taste, or poor form ( e.g. a crude

joke in mixed company). See DePalo , 2004 WL 1151002 at *9. In

this instance, it was the student's conduct, not the teacher's,

which was unseemly, if not outrageous. There is, m oreover, no

persuasive evidence that Williams' relative restraint in the

face of the student's angry racist outburst failed in some

specific way to reflect credit upon himself.

C. Violence in the Workplace

36. The School Board accused Williams of viola ting School

Board Rule 6Gx13 - 4 - 1.08, which 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. Thr eats, threatening behavior,

or acts of violence against students,

employees, visitors, or other individuals by

anyone on DCPS property will not be

tolerated. Violations of this policy may

lead to disciplinary action which includes

dismissal, arrest, and/o r prosecution.

Any person who makes substantial threats,

exhibits threatening behavior, or engages in

violent acts on DCPS property shall be

removed from the premises as quickly as

safety permits, and shall remain off DCPS

premises pending the outcome of an

investigation. DCPS will initiate an

appropriate response. This response may

include, but it is not limited to,

suspension and/or termination of any

business relationship, reassignment of job

duties, suspension or termination of

employment, and/or cri minal prosecution of

the person or persons involved.

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

that Williams engaged in "threats" or "threatening behavior."

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

committed an act of violence against J. L.; and, if so, (b)

whether the act was "so serious as to impair [Williams']

effectiveness in the school system." Cf. DePalo , 2004 WL

1151002 at *9.

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

"[u]njust or unwarra nted exercise of force, usually with the

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

Dictionary 1408 (5th ed. 1979). In this case, the evidence does

not persuade the undersigned that Williams committed an act of

violence. Williams is ther efore not guilty of violating School

Board Rule 6Gx13 - 4 - 1.08.

D. Administration of Corporal Punishment

38. Williams stands accused of violating School Board Rule

6Gx13 - 5D - 1.07, pursuant to which the "administration of corporal

punishment in Miami - Dade County Public Schools is strictly

prohibited." To warrant suspension, a violation of this Rule

must be so serious as to impair the teacher's effectiveness in

the school system. Cf. DePalo , 2004 WL 1151002 at *9.

39. The Rule does not define "corporal punishment." While

the term is arguably broad enough to encompass any penalty

inflicted on the person of an offender, in the present context

"corporal punishment" would usually be understood to mean

paddling or spanking. Williams certainly did not admini ster

corporal punishment of that nature on J. L. While Williams did

touch the student's body, it is debatable whether he did so to

"punish" J. L. At most the School Board has established a

technical violation of the corporal punishment Rule.

40. As m entioned above, but to repeat for emphasis, to

suspend Williams for just cause 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 impair his effectiveness

in the school syste m.

41. There was little, if any, direct evidence that

Williams' effectiveness in the school system was impaired as a

result of the incident of January 30, 2004. On this issue,

therefore, the Board must rely on inferences in aid of its

proof. Indeed, the Board invokes the concept of res ipsa

loquitur , arguing:

Respondent's loss of control in the

classroom speaks for itself. By its very

nature, such action demonstrates

Respondent's ineffectiveness in the

classroom. Respondent's misconduct, being

paten t and obvious, makes it clear from the

record that his effectiveness has been

impaired . . . .

Pet. Prop. Rec. Order at 9.

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

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

that the vio lation 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 sch ool system. See DePalo , 2004 WL 1151002

at *11; Miami - Dade County School Bd. v. Wallace , DOAH Case No.

00 - 4392, 2001 WL 335989, *19 (Fla.Div.Admin.Hrgs. Apr. 4, 2001),

adopted in toto , May 16, 2001.

43. The allegations against Williams do not involve

m isconduct of a private immoral nature, so the first condition

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

Williams' response to J. L.'s verbal abuse must have impaired

Williams' effectiveness in the school system. Contrary to the

School Board's assertion, Williams did not lose control in the

classroom or otherwise clearly demonstrate his ineffectiveness,

but rather handled himself fairly well in what should be a

singular situation. Indeed, the record shows that this was a

unique and iso lated occurrence; Williams' response to J. L.'s

race - baiting was in no way part of a pattern of conduct.

44. Past experience drawn from the fund of common

knowledge tells that calling a black man a "black ass nigger" is

racist and inexcusable; even fo r a middle school student, such

conduct is beyond the pale. The undersigned agrees with

Williams' observation that "[n]o teacher should ever have to

stand in a classroom and be called a 'nigger' by his students."

Resp. Prop. Rec. Order at 6. In deciding whether to infer

ineffectiveness, therefore, the undersigned has taken account of

the flagrant provocation to which Williams was subjected.

45. Ultimately, although an inference of resulting

ineffectiveness might be legally permissible under the

circum stances of this case, such an inference is not factually

justified and hence has not been drawn. Rather, taking into

consideration all of the evidence in this case, it is determined

that Williams continued to be effective, notwithstanding the

incident of January 30, 2004.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

rescinding its previous decision to suspend Williams without

pay; awarding Williams back salary, plus be nefits, that accrued

during the suspension period of 30 workdays, together with

interest thereon at the statutory rate; and directing that a

written reprimand for violating the corporal punishment rule be

placed in Williams' personnel file.

DONE AND ENTERED this 2nd day of December, 2004, in

Tallahassee, Leon County, Florida.

S

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, F lorida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of December, 2004.

ENDNOTES

1 / The allegation that Williams tipped over J. L.'s desk and

caused the student to hit his head on the floor was not

established by a preponderance of the evidence.

2 / The undersigned finds that Williams did not strike or punch

J. L.'s face sharply with his open hand, which is how one would

typically envision a "slap." At the same time, however, the

und ersigned is persuaded that, instead of carefully setting his

hand on J. L. before pushing the student, Williams landed his

hand on J. L.'s person and pushed the student in one quick

motion. The undersigned thinks this sort of contact is not

quite a slap b ut possibly could be perceived as such by others.

3 / J. L. claims, as do some of his classmates, that Williams

slapped J. L. hard across the face. The fact - finder

nevertheless has chosen to credit Williams' testimony as more

persuasive and credible than the children's. (Many of the

students' written statements are ungrammatical, full of

misspellings, and hard to follow —— in short, replete with indicia

of unreliability.)

The undersigned was struck particularly by one aspect of J.

L.'s testimony, whi ch cast doubt on his story. J. L. testified

that, after leaving Williams' classroom, he had gone directly to

the office, where a school police officer immediately took a

photograph of his face as evidence of the red mark supposedly

left by Williams' hand. Obviously, a contemporaneous picture of

J. L.'s purported injury would have been compelling evidence of

the alleged slap, and the School Board surely would have offered

it as such. Yet, neither the photograph nor the police officer

appeared at final hea ring. Two alternative explanations come to

mind, both of which undermine the School Board's case: Either

J. L. was not photographed as he said, in which case J. L. was

less than truthful on the witness stand, or the picture was

taken but showed no eviden ce of a slap.

4 / The school would later collect written statements from J.

L.'s classmates —— not individually, but sitting together as a

group in the classroom, talking about what they had seen and

heard. This particular method of gathering "evidence" cr eated

an obvious opportunity for the students to get their story

straight, further compromising the resulting statements, the

probative value of which the fact - finder has discounted

accordingly. See also endnote 3.

5 / 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 Occupati onal

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

6 / 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 concluded 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 misconduc t in office, it is necessary

but not sufficient that a violation 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 text refers.

7 / 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

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

things 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 listin g, 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.").

COPIES FURNISHED :

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

2595 Tampa Road, Suite J

Palm Harbor, Florida 34684

Madelyn P. Schere, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Daniel J. Woodring, General Counsel

Department of Education

325 West Gaines Street, Room 1244

Tallahassee, Florida 32399 - 0400

Jim Winn, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Dr. Rudolph F. Crew, Superintendent

Miami - Dade Coun ty School Board

1450 Northeast Second Avenue, No. 912

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 that

will issue the Final Order in this case.