04-004478 Miami-Dade County School Board vs. Anthony C. Brooks Status: Closed Recommended Order on Monday, October 17, 2005.

Summary: It was not established that a high-school assistant principal made inappropriate remarks to two female students on campus during school hours, and later harassed one of them; therefore, Petitioner should not suspend Respondent 30 workdays without pay.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 04 - 4478

)

ANTHONY C. BROOKS, )

)

Respondent. )

)

RECOMMENDED ORDER

This case ini tially came before Administrative Law Judge

John G. Van Laningham for final hearing on April 22, 2005, in

Miami, Florida, and resumed, by video teleconference, on

June 27, 2005, at sites in Tallahassee and West Palm Beach,

Florida.

APPEARANCES

For Petitioner: Madelyn P. Schere, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Larry R. Handfield, Esquire

4770 Biscayne Boulevard

Miami, Florida 33137

STATEMENT OF THE ISSUE

The issue in this case is whether a high - school assistant

principal made inappropriate remarks to two female students on

campus during school hours, and then later harassed one of them,

thereby entitling the district school board to suspend the

administrator for 30 workdays without pay.

PRELIMINARY STATEMENT

At its regular meeting on December 15, 2004, Petitioner

School Board of Miami - Dade County suspended Respondent

Anthony C. Brooks for 30 workdays, with out pay, from his

position as a high - school assistant principal. This action

resulted from allegations that on February 12, 2004, Mr. Brooks

had made inappropriate comments to two female students about

modeling and had proposed to at least one of them tha t he take

pictures of her at the beach.

Anticipating Petitioner's adverse decision, Mr. Brooks had

requested a formal hearing by letter dated December 9, 2004.

Thus, on December 16, 2004, the matter was referred to the

Division of Administrative Hearings for further proceedings.

There, the final hearing was scheduled for April 22, 2005.

At the final hearing, Petitioner called the following

witnesses: students M. D. and F. J.; Miranda J. (F. J.'s

mother); DanySu Pritchett, an administrator in Petitioner 's

Office of Professional Standards; and Deborah Love, principal of

the school where Mr. Brooks worked. In addition to these

witnesses, Petitioner offered into evidence Petitioner's

Exhibits 1 through 16, all of which were admitted.

Mr. Brooks testified on his own behalf and called Frantzy

Pojo and Derek Edwards as witnesses. No Respondent's Exhibits

were received in evidence as part of Mr. Brooks's case.

The third and last volume of the final hearing transcript

was filed on August 2, 2005. Each part y timely filed a Proposed

Recommended Order before the established deadline, which was

September 1, 2005.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2005 Florida Statutes.

FINDINGS OF FACT

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

Petitioner in this case, is the constitutional entity authorized

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

School System.

2. As of the final hearing, Respondent Anthony C. Brooks

("Brooks") had been employed a s either a teacher or

administrator in the Miami - Dade County Public School System for

approximately 23 years. At all times relevant to this case,

Brooks was an assistant principal at Miami Jackson Senior High

School, where his primary responsibility was d iscipline.

3. The operative contract of employment between Brooks and

the School Board required Brooks to "observe and enforce

faithfully the state and federal laws, rules, regulations, and

School Board Rules insofar as such laws, rules, regulations, and

policies are applicable to the position of employment."

Pursuant to the contract, Brooks agreed "to become familiar and

comply with state and federal laws, rules, regulations and

policies of the School Board and of the Department of Education

for which [h e] w[ould] be held accountable and subject to[.]"

The agreement entitled the School Board to suspend or dismiss

Brooks for just cause including "the failure to fulfill the

obligations under this Contract."

The Alleged Inappropriate Remarks

4. The School Board alleges that on February 12, 2004,

Brooks told M. D., a female student, that she should consider

becoming a model, and that he would take pictures of her at the

beach. The School Board alleges further that, the same day,

Brooks separately encourage d another female student, F. J., to

think about modeling. The evidence presented at hearing failed

persuasively to substantiate these charges. The findings that

follow in this section, based on evidence that is in substantial

conflict, depict the likelie st scenario derivable from the

instant record, 1 though the undersigned's confidence in the

accuracy of some aspects of this historical narrative is

relatively limited. 2

5. On the morning of February 12, 2004, a security monitor

called Brooks to a classro om where some students were creating a

disturbance. Upon his arrival, the teacher pointed out to

Brooks the four students who had been causing problems. Brooks

asked them to step outside. One of the four was M. D.

6. Brooks told the students, in effec t, to straighten up.

In the course of lecturing the students, Brooks said to M. D.,

"You could be a model or something like that." Brooks was not

attempting to proposition M. D. His remark was intended to

boost her self - esteem and encourage M. D. to set higher

standards of personal behavior for herself.

7. Later that day, Brooks ran into M. D. outside the

cafeteria. M. D. was talking to a security monitor, and Brooks

overheard her say, "Mr. Brooks said I could be a model." The

security monitor loud ly and rudely scoffed at that idea.

Thereafter, Brooks took M. D. aside, to the doorway of the SCSI

(indoor suspension) room, and warned her not to discuss her

personal business with everyone.

8. Sometime later (perhaps the same day), Brooks was

walking in the cafeteria, and F. J., a friend of M. D.'s,

stepped on his foot. F. J. continued on her way without pausing

and sat down at a table outside the SCSI room. Brooks walked

over to her and invited an apology. F. J. declined. Brooks

informed her that he would "model" good manners for her and

proceeded to deliver an apology. Then, he left.

9. Soon M. D. and F. J. reported to their cheerleading

coach that Brooks had expressed interest in taking them to the

beach for a photo shoot. The coach passed this allegation along

to the administration, which in turn called the school police

and the State Attorney's Office. The prosecutor declined to

press criminal charges against Brooks; the Office of

Professional Standards ("OPS") requested a personnel

inve stigation.

10. Detective Pedro Valdes conducted the investigation.

He interviewed M. D., F. J., Brooks, and Trust Counselor

Patricia Manson (who disclaimed personal knowledge of the events

in dispute). The detective evidently did not believe (or at

lea st gave little weight to) Brooks's denial of wrongdoing, for

he determined that the students' statements were sufficiently

credible to support the conclusion that Brooks had violated a

School Board rule prohibiting improper employee/student

relationships. The detective's report announcing that this

charge had been "substantiated" was released in July 2004.

11. Having effectively been found guilty by the detective,

Brooks was summoned to a conference - for - record ("CFR"), which

was held on August 11, 2004. There, Brooks was given an

opportunity to deny the charge (but not to confront M. D. and

F. J., whose statements comprised the "evidence" against him).

He failed to persuade the administrators that the detective had

reached the wrong conclusion. The ad ministrators issued several

directives to Brooks, including the following:

1. Refrain from contacting anyone involved

in this investigation at any time.

2. Refrain from inappropriate contact

and/or comments with students.

The Alleged Harassment

12. O n August 25, 2004, F. J. came to school dressed

inappropriately, in a short skirt and tank top. At the

beginning of second or third period, a security monitor named

Frantzy Pojo noticed that F. J. was in violation of the dress

code and attempted to remove her from class. The teacher

refused to let F. J. leave with the security monitor. Faced

with the teacher's obstructiveness, Mr. Pojo called Brooks, the

assistant principal in charge of discipline whose portfolio

included dress code enforcement.

13. Mr . Brooks came to the classroom and spoke with the

teacher. He asked that the teacher instruct F. J. to put on a

jacket to cover up. The teacher —— and F. J. —— complied.

14. The very next day, Mr. Pojo spotted F. J. and saw that

she was, once again, not dr essed appropriately. Mr. Pojo called

Brooks to handle the situation. Brooks found F. J. in the

library and agreed that she was in violation of the dress code.

He observed that two or three other girls were also dressed

inappropriately. Mr. Pojo and Bro oks escorted these girls to

the SCSI room and left them there. Brooks instructed the

teacher - in - charge not to suspend the students but rather to let

them call their parents and request that appropriate clothes be

brought to school.

15. F. J. called her mother and complained that Brooks was

harassing her. F. J.'s mother became angry and arranged to meet

with the principal, Deborah Love, that afternoon.

16. When F. J., her mother, and Ms. Love met as scheduled,

F. J. accused Brooks of having followed her to classes and

singled her out unfairly for discipline in connection with the

dress code violations. At Ms. Love's request, F. J. submitted

written statements concerning the events of August 25 and August

26, 2004. 3

17. Ms. Love believed F. J. and a pparently had heard

enough. Without investigating F. J.'s allegations or even

asking Brooks to respond to them, Ms. Love prepared a

memorandum, dated August 27, 2004, in which she charged Brooks

with insubordination. Specifically, Ms. Love alleged that

B rooks had violated the directive, given at the recent CFR, to

refrain from contacting anyone involved in the investigation

stemming from the allegation that Brooks had made inappropriate

remarks to M. D. and F. J.

18. On or about August 27, 2004, Ms. Lov e ordered Brooks

not to return to campus but instead to report to an alternate

worksite pending further action on the charges against him.

19. At its regular meeting on December 15, 2004, the

School Board voted to accept the recommendation of OPS that

Br ooks be suspended without pay for 30 workdays.

Ultimate Factual Determinations

20. Brooks's conduct was not shown to have been outside

the bounds of accepted standards of right and wrong. He is

therefore not guilty of immorality, as that offense is def ined

in Florida Administrative Code Rule 6B - 4.009(2).

21. Brooks did not fail to make a reasonable protective

effort to guard either M. D. or F. J. against a harmful

condition; had he neglected such duty, Brooks could have been

disciplined for misconduct in office.

22. Brooks did not intentionally expose either M. D. or

F. J. to unnecessary embarrassment or disparagement; had he done

so, Brooks could have been disciplined for misconduct in office.

23. Brooks did not harass or discriminate against M. D. or

F. J. on the basis of any improper consideration, such as race,

color, or religion; had he done so, Brooks could have been

disciplined for misconduct in office.

24. Brooks did not exploit a relationship with either M.

D. or F. J. for personal gain or a dvantage; had he done so,

Brooks could have been disciplined for misconduct in office.

25. Brooks did not constantly or continually refuse

intentionally to obey a direct and reasonable order, which

willful defiance, had he shown it, would have constituted "gross

insubordination" under Florida Administrative Code Rule 6B -

4.009(4).

26. Brooks did not violate School Board Rule 6Gx13 - 4A -

1.21, which prohibits unseemly conduct and abusive or profane

language.

27. Brooks did not violate School Board Rule 6Gx13 - 4 - 1.09,

which prohibits unacceptable relationships and/or communications

with students.

28. Accordingly, it is determined that Brooks is not

guilty of the charges that the School Board has brought against

him.

CONCLUSIONS OF LAW

29. The Division of Adm inistrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

Sections 1012.33, 120.569, and 120.57(1), Florida Statutes.

30. In an administrative proceeding to suspend or dismiss

an employee, the School Board, as the ch arging 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).

31. Brooks'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).

32. In its Amended Notice of Specific Charges served on

March 18, 2005, the School Board advanced five theories for

suspending Brooks: Immorality (Count I); Mis conduct in Office

(Count II); Gross Insubordination (Count III); Unbecoming

Conduct for a School Board Employee (Count IV); and Prohibited

Employee - Student Relationship. (Count V)

A. Statutory Grounds for Dismissal

33. The School Board is authorized to suspend or dismiss

[a]ny member of the district administrative

or supervisory staff . . . any time during

the term of the contract; however, the

charges against him or her must be based on

immorality , misconduct in office ,

incompetency, gross insubordinati on , willful

neglect of duty, drunkenness, or conviction

of any crime involving moral turpitude, as

these terms are defined by rule of the State

Board of Education . Whenever such charges

are made against any such employee of the

district school board, the district school

board may suspend the employee without pay;

but, if the charges are not sustained, he or

she shall be immediately reinstated, and his

or her back salary shall be paid.

§ 1012.33(6)(b), Fla. Stat. (emphasis added).

34. The terms "immora lity," "misconduct in office," and

"gross insubordination" are defined in Florida Administrative

Code Rule 6B - 4.009, which prescribes the "criteria for

suspension and dismissal of instructional personnel" and

provides, in pertinent part, as follows:

(2) I mmorality is defined as conduct that

is inconsistent with the standards of public

conscience and good morals. It is conduct

sufficiently notorious to bring the

individual concerned or the education

profession into public disgrace or

disrespect and impair the individual’s

service in the community.

(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.

(4) Gross insubordination or willful

neglect of duties is defined as a constant

or continuing intentional refusal to obey a

direct order, reasonable in nature, and

given by and with proper authority.

1. Immorality

35. The undersigned has determined, as a matter of

ultimate fact, that Brooks's conduct was not shown to have been

beyond the bounds of accepted standards of ri ght and wrong .

Because the relevant definition of "immorality" can be applied

to the historical facts as found herein without analysis, i t is

unnecessary to make additional legal conclusions with regard to

this charge .

2. Misconduct in Office

36. 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 incorpora ted 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 excell ence, 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

conce rn 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 mainta ining

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 Con duct

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 re vocation

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

lea rning and/or to the student's mental

and/or physical health and/or safety.

* * *

(e) Shall not intentionally expose a

student to unnecessary embarrassment or

disparagement.

* * *

(g) Shall not harass or discriminate

against any student 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 prot ected from

harassment or discrimination.

(h) Shall not exploit a relationship with a

student for personal gain or advantage.

37. As shown by a careful reading of Rule 6B - 4.009, 4 the

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

A seri ous violation of a specific rule 5 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."

38. The S chool Board alleges that Brooks breached the

duty, imposed under Florida Administrative Code Rule 6B -

1.006(3)(a), to protect students from harmful conditions; and

that he committed the offenses described in subparagraphs

(3)(e), (3)(g), and (3)(h) of that Rule. The undersigned has

determined, however, as a matter of ultimate fact, that Brooks

did not: (a) fail to make a reasonable protective effort to

guard either M. D. or F. J. against a harmful condition; (b)

intentionally expose either M. D. or F. J. t o unnecessary

embarrassment or disparagement; (c) harass or discriminate

against M. D. or F. J. on the basis of any improper

consideration, such as race, color, or religion; or (d) exploit

a relationship with either M. D. or F. J. for personal gain or

adva ntage. Because the relevant provisions of Rule 6B - 1.006(3)

can be applied to the historical facts as found herein without

analysis, i t is unnecessary to make additional legal conclusions

with regard to these allegations .

3. Gross Insubordination

39. To constitute gross insubordination or willful neglect

of duties, an employee's "intentional" defiance must be

"constant or continuing," and involve the disobedience of a

"direct" order. Fla. Admin. Code R. 6B - 4.009(4). Accordingly,

"one isolated act of con tempt is not synonymous with 'gross

insubordination,'" Smith v. School Bd. of Leon County , 405

So. 2d 183, 185 (Fla. 1st DCA 1981), nor is contemptuous conduct

that "does not involve a violation of any direct order or a

gross violation of any personnel rul e," Rosario v. Burke , 605

So. 2d 523, 524 (Fla. 2d DCA 1992).

40. The School Board contends that Brooks violated the

directives that had been given to him at the CFR, which, to

repeat for convenience, included these:

1. Refrain from contacting anyone involved

in this investigation at any time.

2. Refrain from inappropriate contact

and/or comments with students.

More precisely, the School Board maintains that Brooks violated

the first directive by twice "contacting" F. J. in August 2004

in connection with her violations of the dress code.

41. The School Board's position is premised on the belief

that the directive clearly forbade Brooks from having any

contact —— even obviously appropriate, job - related contact —— with

either M. D. or F. J. To accept th is premise requires that the

phrase "anyone involved in this investigation" be understood

expansively to include, among others, the persons who made the

allegations against Brooks —— namely his accusers, M. D. and F. J.

Yet, while this might be a reasonable interpretation of the

language in question, it is certainly not the only one.

42. Another reading of the phrase "anyone involved in this

investigation" understands it more narrowly as referencing only

the persons who had taken part in the official inquir y into

whether the allegations against Brooks had a basis in provable

fact. These would be certain school police personnel and

perhaps some OPS administrators —— but not the accusers/alleged

victims who, for good reason, should never be (and were not in

thi s instance) allowed to investigate their own allegations. 6

43. The preceding interpretation is reinforced by the

legal conclusion that the second directive, being explicit in

its prohibition of inappropriate contact with students (a

category that unambig uously includes M. D. and F. J.), controls

over the first directive, which latter, if it includes the

student - accusers within its field of operation, does so only in

broad, general terms. See Gretz v. Florida Unemployment Appeals

Com'n , 572 So. 2d 1384, 1 386 (Fla. 1991)(specific statute

controls over general statue covering the same subject matter);

accord , Cone v. State Dept. of Health , 886 So. 2d 1007, 1012

(Fla. 1st DCA 2004).

44. Accordingly, it is concluded that the second directive

can reasonably be construed as applying exclusively to students

such as M. D. and F. J., while concomitantly reading "anyone

involved in this investigation" as excluding students, including

M. D. and F. J., who would not be investigators. This being the

case, the first directive is at least ambiguous, as a matter of

law, with respect to the question whether it includes the

student - accusers among the persons "involved in this

investigation."

45. Because the first directive is not a clear,

unambiguous, and direct order to refrain from having

appropriate, job - related contact with either M. D. or F. J.,

Brooks cannot be found guilty of having intentionally violated

said directive.

46. Further, even if the School Board's interpretation of

the first directive were the only reasonable one (which it is

not), there is no persuasive evidence —— and hence the undersigned

has not found —— that Brooks intentionally refused to obey the

directive. Thus, Brooks cannot be found guilty, in fact, of

having intentionally violated the direct ive at issue.

47. Further still, even if Brooks had intentionally

violated the first directive (which he did not do), there is no

persuasive evidence —— and hence the undersigned has not found ——

that Brooks constantly or continually refused to obey the

dire ctive. To the contrary, and contrary to the School Board's

argument, Brooks had no direct "contact" with F. J. on

August 25, 2004 —— he spoke, instead, with her teacher. At most,

Brooks had "contact" with F. J. —— and appropriate contact at

that —— only on Au gust 26, 2004, when he escorted her and other

dress code violators to the SCSI room. One act of defiance

(which this was not) is not "gross insubordination."

48. In short, Brooks is not guilty of gross

insubordination.

B. Contractual Grounds for Dismi ssal 7

49. The School Board alleges that Brooks failed to comply

with School Board Rules 6Gx13 - 4A - 1.21 and 6Gx13 - 4 - 1.09. The

first of these Rules provides as follows:

All persons employed by the School Board

. . . are expected to conduct themselves,

bot h 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 profane language in the workplace is

expressly prohibited.

S.B.R. 6Gx13 - 4A - 1.21.

50. Sc hool Board Rule 6Gx13 - 4 - 1.09 provides in relevant

part as follows:

[A]ll School Board personnel are strictly

prohibited from engaging in unacceptable

relationships and/or communications with

students. Unacceptable relationships and/or

communications with students include, but

are not limited to the following: dating;

any form of sexual touching or behavior;

making sexual, indecent or illegal

proposals, gestures, or comments; exploiting

an employee - student relationship for any

reason; and/or demonstrating any other

behavior which gives an appearance of

impropriety.

1. Unseemly Conduct; Use of Abusive or Profane Language

51. There is no evidence —— indeed the School Board made no

attempt to prove —— that Brooks used abusive or profane language

in the workp lace. Thus, he cannot be found guilty of that

offense, which is specifically described in School Board Rule

6Gx13 - 4A - 1.21.

52. The Rule proscribes but does not define "unseemly

conduct." In ordinary usage, the word "unseemly" usually

suggests inappropri ateness manifesting indecency, bad taste, or

poor form ( e.g. a crude joke in mixed company). Brooks's

conduct, as described herein, was not indecorous in that sense,

and thus he is not guilty of having acted in an "unseemly"

fashion.

53. The School B oard has charged Brooks with having

engaged in unbecoming conduct. Assuming, however, that School

Board Rule 6Gx13 - 4A - 1.21 can reasonably be read (as the School

Board seems to urge) as prohibiting any public or work - related

conduct which, if known, would cause someone or some persons not

to feel esteem for the employee or the school system, the School

Board has failed to prove that Brooks is guilty of committing a

prohibited act.

54. As an initial observation, it should be pointed out

that the Rule fails to identify the person or persons whose

opinions about the relative worthiness of the employee's conduct

must be considered. Yet credit (or "esteem," which is

synonymous in this context), like beauty, is in the eye of the

beholder. Whether a person's be havior entitles him to esteem or

respect is a value judgment, reflecting an evaluation that is

inherently subjective. Thus, the question whether certain

conduct "reflected credit" upon the actor is unanswerable in the

abstract; to respond to the query, on e must know whose regard

for the actor is relevant.

55. Consequently, if Rule 6Gx13 - 4A - 1.21 makes it a

disciplinable offense to behave in a way that causes someone not

to hold the employee or the school system in high regard, then

the decision - maker co uld apply the Rule in accordance with the

rule of law only if he were able to conceptualize an objective

standard of conduct, a neutral principle for defining reasonably

esteem - worthy behavior under the circumstances at hand.

56. The School Board neithe r proved nor argued for the

existence of such a standard of conduct. Without a neutral

principle to apply, the undersigned, were he to attempt to pass

judgment on Brooks's behavior, would be merely voicing a

personal opinion —— the very antithesis of the ru le of law.

57. Accordingly, to the extent the School Board has

charged Brooks with a general failure to behave in a manner that

reflects credit on himself and the school system, it has failed

to offer sufficient evidence to sustain the charge.

2. Prohib ited Employee - Student Relationship

58. The undersigned has found, as a matter of ultimate

fact, that Brooks did not have an unacceptable relationship, or

engage in an unacceptable communication, with either M. D. or

F. J.

59. The School Board argues t hat Brooks's behavior at

least gave the "appearance of impropriety." Whether conduct

"appeared" improper is a value judgment. Consequently, just as

the undersigned could not, for reasons just explained,

appropriately render an opinion as to whether he pe rsonally

considers Brook's conduct worthy of esteem, neither can he

properly hold Brooks accountable (or acquit him) for having

behaved in a manner that the undersigned might (or might not)

personally believe gave an "appearance of impropriety."

60. To d etermine in accordance with the rule of law (as

opposed to personal preference) whether particular behavior gave

the appearance of impropriety, the fact - finder would need to

employ a neutral standard of conduct —— a principle defining

reasonably appropriate - looking behavior under the particular

circumstances —— against which the behavior in question could be

measured. It was the School Board's burden to prove such a

standard. Cf. Purvis v. Department of Professional Regulation,

Bd. of Veterinary Medicine , 461 So. 2d 134, 137 (Fla. 1st DCA

1984). The School Board failed to carry its burden.

61. Therefore, Brooks must be found not guilty of the

charge that he engaged in an unacceptable relationship or

communication.

RECOMMENDATION

Based on the foregoing Findi ngs of Fact and Conclusions of

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

(a) rescinding its previous decision to suspend Brooks without

pay and (b) awarding Brooks back salary, plus benefits, that

accrued during the suspension period of 30 workdays, together

with interest thereon at the statutory rate.

DONE AND ENTERED this 17th day of October, 2005, in

Tallahassee, Leon County, Florida.

S

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of A dministrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th da y of October, 2005.

ENDNOTES

1 / To the extent any finding of materia l 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 entitled to greater weight.

2 / That said, the likelihood that any given affirmative finding

above is accurate is not less than 50 percent. The difficulty

here is that Brooks's testimony, while being on balance more

credible than that of his two accusers (whose respective prior

inconsi stent statements called each one's truthfulness into

question), was not always readily believable. But,

significantly, Brooks did not have the burden of proof and thus

was not required to substantiate any exculpatory fact by a

preponderance of the evidenc e. The School Board, in contrast,

needed to persuade the undersigned that the likelihood of its

charges being true is at least a little better than 50 percent,

and this it failed to do.

3 / In the undersigned's opinion, there are material

inconsistencies between these written statements and F. J.'s

verbal report as recorded in Ms. Love's contemporaneous

memorandum of the meeting, but the principal evidently thought

otherwise. In any event, the findings above reflect the

undersigned fact - finder's determin ation of what likely occurred,

based on the conflicting evidence in the record.

4 / Florida Administrative Code Rules 6B - 4.009, 6B - 1.001, and 6B -

1.006 are penal in nature and must be strictly construed, with

ambiguities being resolved in favor of the empl oyee. 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).

5 / 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 de fining 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 teach ers 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 v iolation 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 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.

6 / One problem with construing the phrase "anyone involved in

t his investigation" so broadly as to encompass putative

witnesses such as M. D. and F. J. is that the phrase would then

also reference others who, though not themselves investigators,

nevertheless played some part in the events that followed the

students' m aking allegations against Brooks. For example, Ms.

Love was a participant in the CFR at which Brooks was given the

directives at issue. Thus, if M. D. and F. J. were involved in

the investigation because their allegations triggered it, then

so too was Ms . Love who, as Brooks's principal, was involved in

the administrative response to the investigation. But to

include Ms. Love among those whom Brooks was not to contact

would make little or no sense; she was, after all, his direct

supervisor, and thus some one with whom Brooks would be expected

to have regular contact. Because absurd or improbable results

are presumed not to have been intended, it is reasonable to

avoid construing the first directive so broadly as to bring

about such results. See , e.g. , Hu ntington on the Green

Condominium v. Lemon Tree I - Condominium , 874 So. 2d 1 (Fla. 5th

DCA 2004)( "[I]f one interpretation would lead to an absurd

conclusion, then such interpretation should be abandoned and the

one adopted which would accord with reason an d probability[.]").

Along the same line, to include students M. D. and F. J. in

the "no contact" category (as opposed to the "no inappropriate

contact" category) would have prevented Brooks, who was in

charge of student discipline, from disciplining M. D. or F. J.,

were either of them to misbehave, as F. J. in fact would do.

While it is undoubtedly true, as the School Board insists, that

other administrators were available to discipline M. D. and

F. J. should the need have arisen, the undersigned believe s that

if the intent of the administrators at the CFR had been to order

Brooks not to fulfill his ordinary responsibilities as assistant

principal vis - à - vis M. D. and F. J., then the directives would

have (and should have) said so explicitly.

7 / Because § 1012.33(6)(b), Fla. Stat., does not specifically

empower the School Board to suspend or dismiss an administrator

for reasons other than the ones enumerated in the statute, it is

possible that the employment contract between Brooks and the

School Board is not enforceable to the extent it purports to

authorize such adverse employment actions based on violations of

School Board Rules and other offenses not listed in the statute.

Brooks has not made this particular argument, however, and so

the undersigned w ill proceed to decide the merits of the

remaining charges.

COPIES FURNISHED :

Larry R. Handfield, Esquire

4770 Biscayne Boulevard

Miami, Florida 33137

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 L. Winn, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0 400

Dr. Rudolph F. Crew, Superintendent

Miami - Dade County 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 th e 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.