06-001758 Miami-Dade County School Board vs. Manuel Brenes Status: Closed Recommended Order on Tuesday, February 27, 2007.

Summary: Having failed to prove that Respondent, a teacher, physically assaulted three third-graders in his music class, Petitioner district School Board is not entitled to dismiss him.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 06 - 1758

)

MANUEL BRENES, )

)

Respondent. )

)

RECOMMENDED ORDER

This case c ame before Administrative Law Judge John G.

Van Laningham for final hearing on September 7, 2006, in Miami,

Florida.

APPEARANCES

For Petitioner: Ana I. Segura, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miam i, Florida 33132

For Respondent: Mark F. Kelly, Esquire

Kelly & McKee, P.A.

1718 East Seventh Avenue

Tampa, Florida 33675

Carol Buxton, Esquire

Florida Education Association

140 South Univer sity Drive, Suite A

Plantation, Florida 34493

STATEMENT OF THE ISSUE

The issue in this case is whether a schoolteacher

physically assaulted three third - graders in his music class,

thereby giving his employer, the district school board, just

cause to t erminate his employment.

PRELIMINARY STATEMENT

At its regular meeting on May 10, 2006, Petitioner School

Board of Miami - Dade County suspended Respondent Manuel Brenes

without pay pending his dismissal as a member of the district's

instructional staff. This action resulted from the allegation

that on November 18, 2005, Mr. Brenes had physically attacked

several third - grade boys in his music class.

Mr. Brenes timely requested a formal administrative hearing

to contest Petitioner's intended action. Thus, on May 12, 2006,

the matter was referred to the Division of Administrative

Hearings ("DOAH") for further proceedings. Thereafter, on

May 26, 2006, the School Board filed its Notice of Specific

Charges. (Later, on September 5, 2006, Petitioner filed an

amended charging document.)

At the final hearing, which took place on September 7,

2006, Petitioner presented the testimony of students K. C.

(male), K. M., C. P., and K. C. (female). Petitioner also

called as witnesses: Isabel Castillo, principal of Lit tle River

Elementary School; Pedro Valdes, a detective with the Miami - Dade

County School Police Department; Pamela C., a colleague of

Brenes's and mother of K. C. (male); Lucy Iturrey, Director of

the Office of Professional Standards; Dr. Isabel Siblesz, a n

administrator in the district's Human Resources Department; and

Mr. Brenes.

Petitioner offered Petitioner's Exhibits numbered 1 through

33, inclusive, and each was received in evidence.

Mr. Brenes rested on the record made during Petitioner's

case - in - chi ef.

The final hearing transcript was filed on December 15,

2006. Each party timely filed a Proposed Recommended Order

before the established deadline, which was January 16, 2007.

Unless otherwise indicated, citations to the Florida

Statutes refer to t he 2006 Florida Statutes.

FINDINGS OF FACT

Background

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 . At all times relevant to this case, Respondent Manuel

Brenes ("Brenes") was a music teacher at Little River Elementary

School ("Little River"), which is within the Miami - Dade County

Public School System.

3. The alleged events giving rise to this case a llegedly

occurred on November 18, 2005. The School Board alleges that on

that date, Brenes lost his temper in the classroom and

physically assaulted three students, each of whom was in the

third grade at the time and about nine or 10 years old. More

part icularly, it is alleged that Brenes poked a boy named K. C.

in the head several times; choked, slapped, and/or picked up and

dropped another boy, K. M.; and threw a chair at a third boy,

whose name is C. P. For his part, Brenes denies these charges,

claim ing that his interventions were neither assaultive nor

potentially harmful, but rather were reasonably necessary either

to protect students from harm or to maintain order.

4. There is no question that an incident occurred in

Brenes's classroom on November 18, 2005, and that the students

K. C., K. M., and C. P. were involved. The evidence adduced at

hearing, however, is conflicting, confusing, and often

incredible, affording the fact - finder little more than a fuzzy

picture, at best, of what actually happen ed.

5. Five eyewitnesses to the disputed incident testified.

These were four student - accusers (comprising the three alleged

victims and one of their classmates, a girl named "Kate" 1 ) plus

the accused teacher himself. In addition, Pamela C. ("Ms. C."),

who is the mother of K. C. and also a teacher at Little River,

testified regarding her observations and impressions as the

"first responder" to arrive on the scene after the disputed

incident had taken place. (To be clear, Ms. C. did not see

Brenes commi t any wrongful act; she has maintained —— and

testified —— that Brenes made incriminating admissions to her in

the immediate aftermath of the events at issue.)

6. None of these witnesses impressed the undersigned as

wholly reliable; rather, each had credibili ty problems that have

caused the undersigned to discount his or her testimony to some

degree. For example, every eyewitness who testified at hearing

had made at least one prior statement about the incident that

differed in some unexpected way from his or her subsequent

testimony. Moreover, to the extent sense can be made of any

given eyewitness account, there exist material discrepancies

between the witnesses' respective stories. The upshot is that

the undersigned does not have much persuasive, coherent,

consistent evidence upon which to make findings of fact.

7. Given the generally poor quality of the evidence, which

ultimately precludes the undersigned from making detailed

findings of historical fact, a brief summary of the key

witnesses' testimonies about the controversial event will next

be provided. These summaries, it is believed, give context to

the limited findings of historical fact that then follow; they

also should help explain the determinations of ultimate fact

derived from the findings. It is important to note, however,

that the summaries below merely report what each witness said

occurred; they do not necessarily, or even generally, correspond

to the undersigned's findings about what likely took place in

Brenes's classroom on November 18 , 2005.

K. C.

8. K. C. testified that the incident began when one of the

boys told a joke that made "the whole class" laugh. Brenes was

teaching a lesson at the time, writing on the board. Whenever

Brenes faced the board, this particular boy would make "funny

faces behind ["Brenes's] back," and when Brenes turned around,

the boy would sit down.

9. One student, C. P., continued to laugh, and Brenes made

him stand in the corner. Undeterred, C. P. kept laughing.

Brenes grabbed the two front legs of a c hair, lifted it over his

head, and threw the chair at C. P., who "ducked to the ground"

to avoid being hit. After that, C. P. was frightened and

remained on the ground "for like five minutes."

10. Brenes told the students to put their heads down. He

wa lked over to K. C. and poked the boy in the head three times,

apparently for no reason. Then Brenes grasped K. M. by the

throat and lifted the student, with one arm, off the ground and

over his (Brenes's) head. While holding K. M. in the air by his

throa t, Brenes shook and slapped the boy before using two arms

to set him down.

11. A short while later, Ms. C. entered the classroom,

having been summoned by Brenes. K. C. told his mother what had

just occurred. Their conversation, as Ms. C. remembers it, will

be recounted below.

12. Angered and upset by what her son had reported, Ms. C.

removed K. C. from Brenes's classroom and took him back to her

own room. There, on November 18, 2005, K. C. wrote the first of

two statements about the incident. K. C.' s second statement,

dated November 23, 2005, was written in his mother's classroom

as well. The most noteworthy discrepancy between K. C.'s prior

written statements and his testimony at hearing is the absence

of any mention in the prior statements about B renes having poked

him in the head. 2 Asked at hearing about this omission, K. C.

testified that he had "forg[o]t[ten] that part" because Ms.

Castillo (the principal) rushed him to complete his statements. 3

K. M.

13. K. M. testified that "everybody was laughing" because

the classroom smelled bad. Brenes put C. P. in the corner and

then threw a chair at him. C. P. moved or ducked, however, and

hence he was not struck by the chair. Brenes hit K. C. on the

head. Then Brenes caught K. M. laughing at him (Brenes).

Consequently, Brenes grabbed K. M. by the throat with both

hands, lifted him out of his seat, and held him in midair, so

that his feet were off the ground. Brenes held K. M. at arm's

length, with his arms straight out from his body, for about o ne

"second" before setting the boy down. Brenes did not shake or

slap K. M., who was able to breathe while Brenes held him by the

neck, suspended off the ground; indeed, K. M. never felt as

though he were choking, even as he was practically being hanged.

14. Shortly thereafter, K. M. wrote a statement about the

incident, which is dated November 22, 2005. In the statement,

K. M. made no mention of Brenes's having thrown a chair, nor did

he report that Brenes had hit K. C. in the head, as he would

testify at hearing.

C. P.

15. According to C. P., the trouble began when K. M. made

C. P. laugh, which was sufficiently disruptive that Brenes told

C. P. to stand in the corner. This discipline proved to be

ineffective, for C. P. continued to laugh. C. P.'s ongoing

laughter caused Brenes to grab a chair and walk quickly ("a

little bit running") towards C. P. The boy ducked, and the

chair, which remained in Brenes's hands and was not thrown,

struck the wall. C. P. was unable to give consistent testimony

at h earing concerning the distance between his body and the spot

where the chair hit the wall. In different answers he indicated

that the chair struck as near to him as two or three feet, and

as far away as 20 feet.

16. Brenes put the chair down, nowhere close to any

students, and told the children to put their heads down. C. P.

finally stopped laughing. In a discovery deposition taken

before hearing, C. P. had testified that he thought Brenes's use

of the chair as a disciplinary tool was funny. At hear ing,

however, he claimed that he had "just made that up" and given

false testimony at the deposition.

17. C. P. testified that Brenes had swung him by the arm,

but he could not keep straight when this had occurred. At

first, C. P. said that Brenes had taken his arm and swung him

after sending him (C. P.) to the corner, because C. P. had kept

on laughing despite the mild punishment. Then, because C. P.

"was still laughing," even after having been swung by the arm,

Brenes had rushed at him with a chair, ultimately causing the

boy to quit laughing. Later in the hearing, however, C. P.

changed his story and explained that Brenes had grabbed his arm

and swung him around after the "chair affair" —— when C. P. was no

longer laughing —— for the purpose of leading him back to his

seat. Yet another version of the "arm swinging" episode appears

in a prior statement dated November 21, 2005, wherein C. P.

wrote that after Brenes had threatened him with a chair, he

(C. P.) "was still laughing so [Brenes] took my arm a nd he

[swung] me."

18. Testifying about what Brenes did to K. M., C. P.

stated that the teacher had taken K. M. by the neck and shaken

him, lifting the boy up from his chair and then putting him back

down, all because K. M. had been laughing. This testi mony

corresponded fairly closely to C. P.'s statement of November 21,

2005. Interestingly, however, on December 13, 2005, C. P. had

told the detective who was investigating the charges against

Brenes that Brenes merely had grabbed K. M. by the shirt and

p laced him back on his chair because K. M. was "playing around."

C. P. also informed the detective that "the class [had been]

laughing and playing, and Mr. Brenes was trying to stop them."

19. C. P. said nothing at hearing about Brenes's allegedly

having struck K. C. on the head. Likewise, he did not mention,

in his written statement of November 21, 2005, the alleged

attack on K. C. However, C. P. did tell the detective on

December 13, 2005, that he had seen Brenes "tap" K. C. on the

head.

Kate

20. Ka te was in the classroom when the disruption

occurred, although she did not see "all of it, really." She

testified that, at the beginning of class on November 18, 2005,

while Brenes was calling the roll, some boys were talking and

laughing, and they kept o n laughing even after Brenes had

instructed them to stop.

21. C. P. was one of the laughers. Brenes made him stand

in the corner. The laughter continued, so Brenes got up and

threw the chair on which he had been sitting toward the wall

where C. P. wa s standing. The chair flew across the room, in

the air, and hit the wall. C. P. ducked and was not harmed.

22. Meantime, K. M. was laughing. Brenes "grabbed him up"

and talked to him. K. M. started to cry, and Brenes let him go.

Kate did not see any thing untoward happen to K. C. Rather,

Brenes "just talk[ed] to him, because he was laughing, too."

23. After the incident, Kate prepared a written statement,

which is dated November 21, 2005. As far as it went, her

hearing testimony was essentially co nsistent with her prior

statement. The prior statement, however, contains an additional

detail about which she said nothing at hearing. In her

statement, Kate wrote that, after throwing a chair in C. P.'s

direction, Brenes took a table and hit a desk wit h it, causing

the desk to hit the wall.

Ms. C.

24. Ms. C. was at lunch on the day in question when two

students approached her with a request from Brenes that she come

to his classroom, where her son was presently supposed to be

having a music lesson. Ms. C. told the students that she would

be there in about five minutes.

25. When Ms. C. arrived, Brenes's students were well -

behaved and "sitting very quietly." Brenes informed Ms. C. that

her son, K. C., had been disrespectful to him, in particular by

laughing at Brenes as though he were "a stupid person." Upon

learning of her son's misbehavior, Ms. C. was neither perturbed

nor nonplussed, but skeptical; she immediately demanded an

explanation from Brenes : "How do you know when someone is

laughing at you as though you're a stupid person?"

26. After being persuaded that her son had behaved badly,

Ms. C. reprimanded him in front of the class. Brenes thanked

Ms. C. for coming, and she turned to leave. Before taking his

seat, K. C. said, "But momm y, that's not all that happened."

"What happened?" she asked.

"Mr. Brenes poked me in the head," replied K. C. Ms. C.

asked Brenes if this were true, and Brenes admitted that he had

"tapped" K. C., but not hard enough to cause pain.

27. Ms. C. started to leave, but K. C. stopped her again:

"But mommy, that's not all." Thereupon, an exchange ensued much

like the one just described, except this time, K. C. reported

that Brenes had thrown a chair at C. P. "Mr. Brenes, did you

throw the chair?" Ms. C. a sked. Again, Brenes admitted that the

accusation was true, but denied endangering the children.

28. Before Ms. C. could leave, K. C. stopped her for the

third time, saying, once again, "But mommy, that's not it."

This initiated the now - familiar pattern of dialogue. K. C.

accused Brenes of having picked up K. M. and dropped the boy

"hard." Ms. C. asked Brenes if he had done that. Brenes

conceded that he had, yet he assured Ms. C. that the children

had never been in danger.

29. Ms. C. had heard enou gh. She instructed K. C. to

leave the classroom with her, which he did. The two of them

proceeded directly to the principal's office. Ms. C. reported

the incident to the principal. After listening to Ms. C. and

her son, the principal decided to have Br enes removed from his

class, and she called the school police. (Evidently, it was not

thought necessary to hear from Brenes before taking these

actions.)

30. Brenes was kept out his class for a day or two but

then was allowed to return to his regular du ties. This upset

Ms. C., who felt that "nothing was being done." As a result,

Ms. C. "took it upon [her]self" to call the School Board's

"Region Office" and lodge a complaint in her capacity as parent.

Ms. C. was told to prepare an "incident report," wh ich she did,

on November 22, 2005. She submitted the incident report the

following day.

31. Shortly thereafter, Brenes was removed from Little

River and administratively reassigned to the Region Office

pending the outcome of the investigation.

Brenes

32. On November 18, 2005, Brenes met a class of third -

graders at the cafeteria and took the students to his music room

for a lesson. At the time, his music classes were being held in

a portable classroom because Brenes's regular room had been

damaged in a hurricane.

33. Brenes's temporary classroom had an unpleasant odor.

The room's bad smell caused the children to go "berserk" upon

arrival; many began running around and misbehaving. One of the

boys, C. P., pushed another student to the floor. The tables in

the room were on wheels, and some of the children were pushing a

table toward the boy on the ground. Brenes pushed the table out

of the way, so that the student would not be hurt. 4

34. Meantime, K. M. was engaging in horseplay, throwing

himse lf off his seat and landing on the floor. Brenes viewed

this misbehavior as not just disruptive, but potentially

dangerous, so he took hold of the naughty child at the waist,

lifted him up off the floor, and placed him back on his seat

where he belonged. 5

35. The students continued to be disruptive, so Brenes

tossed a chair toward the wall, away from all the students, to

grab their attention and stop the rowdy behavior. 6

36. This quieted the students down —— except for K. M., who

started running for the door, where C. P. was standing with his

arm outstretched, blocking K. M.'s path. Brenes rushed over and

pulled C. P. away from the door to prevent a dangerous

collision. 7

37. Brenes's disjointed testimony fails to give a cogent

explanation for why C. P. had been standing next to the door in

the first place. 8 In a prior statement, however, Brenes

reportedly had told the detective that, before having tossed the

chair, he had taken C. P., who was misbehaving, by the arm and

led him to the corner, where the student was to remain until he

had calmed down. This prior statement finds ample corroboration

in the students' respective accounts.

38. While the commotion continued, K. C. was laughing at

the situation. Walking past the student's desk, Brenes tapped

K. C. gently on the head and told him to quit laughing.

39. About this time, the students calmed down and became

quiet. Brenes commenced teaching his lesson for the day, and

thereafter the class paid attention and stayed on task.

40. Near the end of the period, Ms. C. appeared in the

classroom, having been summoned by Brenes earlier when her son

(among others) was misbehaving. Brenes was not asked at hearing

to recount the particulars of his conversation with Ms. C.

Whatever was said, however, resul ted in Ms. C. ’s yelling at

Brenes in front of the whole class. Brenes, trying to defuse

this awkward situation, became apologetic and attempted to

explain what had happened, but to no avail. Ms. C. —— who took

her little boy's word against Brenes's —— would not let Brenes

tell his side of the story.

Resolutions of Evidential

Conflict Regarding the Disputed Event

41. It is not the School Board's burden to prove to a

certainty that its allegations are true, but only that its

allegations are most likely tr ue; for dismissal to be warranted,

in other words, no more (or less) must be shown than that there

is a slightly better than 50 percent chance, at least, that the

historical event in dispute actually happened as alleged. As

the fact - finder, the undersigne d therefore must consider how

likely it is, based on the evidence presented, that the incident

took place as alleged in the School Board's Notice of Specific

Charges.

42. Having carefully evaluated the conflicting accounts of

the disputed event, the unde rsigned makes the following findings

concerning what happened in Brenes's classroom on November 18,

2005.

43. It is highly likely, and the undersigned finds with

confidence, that the incident stemmed from the misbehavior of

students who were cutting up in class and generally being

disruptive. There were, however, neither allegations, nor

proof, that Brenes was in any way responsible for this

misbehavior. Rather, it is likely, and the undersigned finds,

that the children became boisterous in consequenc e of the

classroom's foul odor.

44. The students K. C., K. M., and C. P. were the

ringleaders of the rowdy students, and, in the course of the

event, Brenes was compelled to redirect each of them.

45. More likely than not, C. P. was the worst behaved of

the three main offenders. Because C. P. was clowning around,

Brenes placed him in the corner. It is likely that when he did

this, Brenes took C. P. by the arm and led him to the spot where

he was to stand. The evidence is insufficient to persuade th e

undersigned that Brenes touched C. P. in a manner that was

intended, or reasonably would be expected, to cause harm or

discomfort; it is possible that this occurred —— the odds, on this

record, being roughly in the range of 25 to 40 percent —— but not

likely .

46. As for what exactly happened with K. M., the

undersigned can only speculate. The undersigned believes that

the likelier of the possibilities presented is that the boy was

rolling off his chair and flopping to the ground, more or less

as Brenes des cribed K. M.'s disruptive activity (although Brenes

probably exaggerated the risk of danger, if any, this

misbehavior posed to the child). The likelier of the scenarios

presented (having a probability somewhere in the neighborhood of

35 to 50 percent) is that Brenes physically returned the boy to

his chair, picking him up in a reasonable, nonpunitive fashion

and similarly setting him back down. 9 The possibility that

Brenes strangled the boy, as charged, is relatively low —— between

15 and 30 percent —— but ne vertheless nontrivial and hence

bothersome, given the seriousness of the accusation. That said,

however, the undersigned is unable to find that any of the

possibilities presented is more likely than not true.

Therefore, the School Board's proof fails as a matter of fact on

the allegation that Brenes choked, slapped, or otherwise

assaulted K. M.

47. Brenes admits having tossed a chair, a point that is

corroborated (to some degree) by all of the eyewitnesses except,

ironically, C. P., the student toward w hom the chair was

allegedly thrown. Brenes, however, denies having tossed a chair

at any student, and the undersigned credits his denial. More

likely than not, it is found, Brenes tossed a chair away from

the students, as he initially claimed, to focus t he students'

attention on something other than the rambunctious boys who were

creating a disturbance. (The undersigned doubts that the chair

was tossed to prevent injury, as Brenes asserted at hearing.)

48. Brenes also admits that he tapped K. C. on t he head

while urging the boy to be quiet. It is likely —— and indeed

Brenes effectively has admitted —— that this was done as a

disciplinary measure. Brenes denies, however, that he tapped

the child in a manner intended, or as reasonably would be

expected, t o cause harm or discomfort. The undersigned credits

Brenes's denial in this regard and therefore rejects as unproven

by a preponderance of the evidence the charge that the teacher

forcefully "poked" K. C. in or about the temple.

Other Material Facts

49. The evidence is undisputed that after Brenes had

gotten the three rowdiest boys under control —— which seems to

have taken but a few minutes —— the rest of the class fell in line

and behaved for the balance of the period. It is reasonable to

infer, and the u ndersigned does find, that whatever actions

Brenes took were effective in restoring order to the class.

That is to say, Brenes's conduct did not create chaos, but

quelled a disturbance that, from every description, could have

gotten out of hand. Such eff icacy would not justify improper

means, of course, but the results Brenes obtained counsel

against any easy inference that his alleged misconduct impaired

his effectiveness in the classroom.

50. Continuing on the subject of Brenes's alleged

ineffectivene ss in consequence of his alleged misconduct, the

undersigned is struck by the undisputed fact that,

notwithstanding the accusations that had been lodged against

Brenes, the principal of Little River allowed the teacher to

return to his classroom after spen ding one day in the library.

Thereafter, he taught his music classes, as usual, for five or

six days before being administratively assigned to the Region

Office effective on or about December 5, 2005.

51. The significance of this fact (Brenes's post - inc ident

return to the classroom) lies in the opportunity it afforded the

School Board to observe whether Brenes's alleged misconduct

actually had, in fact, impaired his effectiveness as a teacher.

As the fact - finder, the undersigned cannot help but wonder:

What happened in Brenes's classroom in the next two weeks after

the incident?

52. The School Board did not provide an answer. Instead,

it presented the conclusory opinions of administrators who

declared that Brenes could no longer be effective, which

o pinions were based on the assumption that all the factual

allegations against Brenes were true. Because that underlying

assumption was not validated by the evidence adduced in this

proceeding, however, these opinions lacked an adequate factual

foundation. Moreover, the undersigned infers from the absence

of any direct proof of actual impairment that Brenes's

effectiveness stayed the same after November 18, 2005. 10

53. While Brenes was spending time at the Region Office

pending the outcome of the investi gation, another teacher who

also was awaiting the results of an investigation began to pick

on Brenes, ultimately provoking Brenes into an argument on a

couple of occasions. During one of th e se arguments, Brenes

responded to his antagonist by saying, "fuc k you." While this

profanity might have been overheard by other adults nearby (the

evidence is inconclusive about that), it is clear that no

students were around.

54. Brenes was the only witness with personal knowledge of

these arguments who testified at hearing; in lieu of firsthand

evidence, the School Board offered mostly hearsay that failed to

impress the fact - finder. In light of Brenes's uncontroverted

testimony that the other man had been badgering him "for the

longest time," the fact that Brene s lost his temper and used

vulgar language, while unadmirable, is at least understandable.

The bottom line is, this was a private dispute between adults,

one of whom —— the one not accused of wrongdoing as a result —— was

actually more at fault as the provoca teur.

Determinations of Ultimate Fact

55. The greater weight of the evidence fails to establish

that Brenes is guilty of the offense of misconduct in office.

56. The greater weight of the evidence fails to establish

that Brenes is guilty of the offe nse of violating the School

Board's corporal punishment policy.

57. The greater weight of the evidence fails to establish

that Brenes is guilty of the offense of unseemly conduct.

58. The greater weight of the evidence fails to establish

that Brenes is guilty of the offense of violating the School

Board's policy against violence in the workplace.

CONCLUSIONS OF LAW

59. DOAH has personal and subject matter jurisdiction in

this proceeding pursuant to Sections 1012.33(6)(a)2., 120.569,

and 120.57(1), Flor ida Statutes.

60. A district school board employee against whom a

dismissal proceeding has been initiated must be given written

notice of the specific charges prior to the hearing. Although

the notice "need not be set forth with the technical nicety or

f ormal exactness required of pleadings in court," it should

"specify the [statute,] rule, [regulation, policy, or collective

bargaining provision] the [school board] alleges has been

violated and the conduct which occasioned [said] violation."

Jacker v. Sc hool Board of Dade County , 426 So. 2d 1149, 1151

(Fla. 3d DCA 1983)(Jorgenson, J. concurring).

61. Once the school board, in its notice of specific

charges, has delineated the offenses alleged to justify

termination, those are the only grounds upon which dismissal may

be predicated, and none other. See Lusskin v. Agency for Health

Care Administration , 731 So. 2d 67, 69 (Fla. 4th DCA 1999);

Cottrill v. Department of Insurance , 685 So. 2d 1371, 1372 (Fla.

1st DCA 1996); Klein v. Department of Business and P rofessional

Regulation , 625 So. 2d 1237, 1238 - 39 (Fla. 2d DCA 1993); Delk v.

Department of Professional Regulation , 595 So. 2d 966, 967 (Fla.

5th DCA 1992); Willner v. Department of Professional Regulation,

Board of Medicine , 563 So. 2d 805, 806 (Fla. 1st DCA 1990), rev.

denied , 576 So. 2d 295 (1991).

62. In an administrative proceeding to suspend or dismiss

a member of the instructional staff, the school board, as the

charging party, bears the burden of proving, by a preponderance

of the evidence, each el ement 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).

63. The teacher'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).

64. Pursuant to Section 1012.33(6)(a), Florida Statutes,

the School Board is authorized to suspend or dismiss

[a]ny member of the instructional staff

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

teaching] contract for just cause . . . .

The dis trict 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 s hall be paid.

(Emphasis added.) 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, incompetency, gross insubordination,

willful neglect of duty, or conviction of a

crime involving moral turpitude.

§ 1012.33(1)(a), Fla. Stat.

65. In its Amended Petitioner's Notice of Specific Charges

filed on September 5, 2006, the School Board advanced four

theories for dismissing Brenes: Misconduct in Office (C ount I);

Violation of Corporal Punishment Policy (Count II); Unseemly

Conduct in Violation of School Board Policy (Count III); and

Violation of the Violence in the Workplace Policy (Count IV).

Misconduct In Office

66. The term "misconduct in office" is d efined 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:

(3) Misconduct in office is defined as a

violation of the Code of Eth ics 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.

67. 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 incorporated 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 pursui t of

truth, devotion to excellence, 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 educato r's primary professional

concern 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) Awa re of the importance of maintaining

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 Conduct

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

shal l subject the individual to revocation

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

learning and/or to the student's mental

and/or physical health and/or safety.

* * *

(f) Shall not intentionally violate or deny

a student's legal rights.

68. As shown by a careful reading of Rule 6B - 4.009, 11 the

offens e of misconduct in office consists of three elements: (1)

A serious violation of a specific rule 12 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

referenc e, into one component: "resulting ineffectiveness."

69. The School Board failed to prove, by a preponderance

of the evidence , facts sufficient to establish the essential

elements of this offense. Thus, the charge of misconduct in

office fails as a mat ter of fact. Due to this dispositive

failure of proof, it is not necessary to render additional

conclusions of law regarding this offense.

Corporal Punishment

70. The School Board's policy on corporal punishment, as

set forth in School Board Rule 6Gx13 - 5D - 1.07 , is that the

practice is "strictly p rohibited."

71. The Rule does not define "corporal punishment"; the

School Board relies instead on Section 1003.01(7), Florida

Statutes, which provides as follows:

"Corporal punishment" means the moderate use

of physical force or physical contact by a

teacher or principal as may be necessary to

maintain discipline or to enforce school

rule. However, the term "corporal

punishment" does not include the use of such

reasonable force by a teacher or principal

as ma y be necessary for self - protection or

to protect other students from disruptive

students.

72. It is reasonably clear from this definition, and the

undersigned concludes, that "corporal punishment" in the school

setting entails the use, as a disciplinary measure, of such

physical force or contact as reasonably would be expected to

inflict bodily pain or discomfort. Miami - Dade County School Bd.

v. Thompson , DOAH Case No. 06 - 2861, 2006 Fla. Div. Adm. Hear.

LEXIS 596, at *17 (Fla.Div.Admin.Hrgs. Dec. 22, 20 06), adopted

in toto , Jan. 26, 2007. The archetypal form of corporal

punishment is (or was) paddling.

73. The corollary to the foregoing is that not all

physical contact constitutes corporal punishment. For one

thing, not all physical contact is unde rtaken as a means of

imposing discipline. For another, not all physical contact

reasonably would be expected to cause bodily pain or discomfort.

It is concluded, therefore, that a teacher or paraprofessional

can touch a student, even as a disciplinary me asure, without

necessarily administering "corporal punishment" on the student. 13

See Thompson , 2006 Fla. Div. Adm. Hear. LEXIS 596, at *17 - *18.

74. Florida law recognizes, moreover, that in some

circumstances a teacher or paraprofessional might be requir ed to

use physical force or contact to protect himself or another from

danger. For example, Section 1003.32(1)(j), Florida Statutes,

authorizes each member of the instructional staff to use

"reasonable force, according to standards adopted by the State

Bo ard of Education, to protect himself or herself or others from

injury." See also Fla. Admin. Code R. 6A - 1.0404(8)(m)

(Instructional personnel shall have the authority, "[w]hen

necessary, [to] use reasonably force to protect themselves,

students and other adults from violent acts[.]").

75. For another example, Rule 6A - 1.0404(8)(c) authorizes

the use of "reasonable efforts to protect the student from

conditions harmful to learning, mental and physical health, and

safety (paragraph (3)(a) of Rule 6B - 1.006, F.A.C.)." Indeed,

Florida Administrative Code Rule 6B - 1.006(3)(a), which is cross -

referenced in Rule 6A - 1.0404(8)(c), actually requires , as an

affirmative duty, that teachers "make [a] reasonable effort to

protect the student from conditions harmful to l earning and/or

to the student's mental and/or physical health and/or safety."

Nothing in the Rules relating to the right and duty to make

reasonable protective efforts excludes the possibility that such

efforts might include, when reasonable, the use of p hysical

force or contact.

76. All this is to say that, although Brenes touched the

three students who were disrupting his class and hence creating

conditions harmful to learning, the undersigned nevertheless has

determined, as a matter of ultimate fact, that such contact ——

which, viewed from an objective standpoint, was not such as

reasonably would be expected to inflict bodily pain or

discomfort —— did not constitute "corporal punishment."

Therefore, Brenes cannot be found guilty of violating the Schoo l

Board's ban on corporal punishment.

Unseemly Conduct

77. The School Board grounded its charge of "unbecoming

conduct" on Brenes's alleged violation of School Board Rule

6Gx13 - 4A - 1.21 , which provides as follows:

All persons employed by the School Boar d 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 community, in a manner

that will reflect credit upon themselves and

the scho ol system.

Unseemly conduct or the use of abusive

and/or profane language in the workplace is

expressly prohibited.

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

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

the statutory l ist, by its plain terms, is not intended to be

exclusive. Yet, the doctrine of ejusdem generis 14 requires that

the offense of unseemly conduct be treated as a species of

misconduct in office, so that, to justify termination, a

violation of School Board Rul e 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. Depalo , DOAH Case

No. 03 - 3242, 2004 Fla. Div. Adm. Hear. LEXIS 1684, at *27 - *28

(Fla.Div.Admin.Hrgs. Apr. 29, 2004), adopted in toto , July 14,

2004; Miami - Dade County School 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.

79. Here, Brenes admitted having used profane language in

the workplace , when he had been provoked into an argument by

another teacher who, like Brenes, was spending time at the

Region Office pending the outcome of an investigation.

Therefore, Brenes technically violated the plain language of

School Board Rule 6Gx13 - 4A - 1.21 .

80. Under the circumstances shown, however, the

undersigned was unable to determine, as a matter of ultimate

fact, that Brenes's "locker room" talk was a serious violation

of the Rule, for several reasons. First, the vulgarity was

directed at another ad ult who had provoked Brenes to anger.

Second, no students were around. Third, the entire affair was a

personal, fundamentally private matter between two men who were

not in mixed company at the time.

81. Finally, there was no persuasive evidence that

Br enes's use of rough language in this instance in any way

impaired his effectiveness in the school system.

Violence In The Workplace

82. The School Board has accused Brenes of violating

School Board Rule 6Gx13 - 4 - 1.08 , which provides in pertinent

part:

Noth ing 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 property will not be

tolerated. Violations of this policy may

lead to disciplinary action which includes

dismissal, arrest, and/or prosecution.

(Emphasis added.) The questions at hand, therefore, are: (a)

whether Brenes committed or threatened an act of violence; and,

if so, (b) whether the violent act or threat thereof was "so

serious as to impair [Brenes's] effectiveness in the school

system." See Miami - Dade County School Bd. v. Depalo , DOAH Case

N o. 03 - 3242, 2004 Fla. Div. Adm. Hear. LEXIS 1684, at *30

(Fla.Div.Admin.Hrgs. Apr. 29, 2004), adopted in toto , July 14,

2004; cf. Miami - Dade County School Bd. v. Wallace , DOAH Case No.

00 - 4392, 2001 WL 335989, *12 (Fla.Div.Admin.Hrgs. Apr. 4, 2001),

adopte d in toto , May 16, 2001.

83. The only proven act of Brenes's that arguably falls

within School Board Rule 6Gx13 - 4 - 1.08 's sphere of operation is

his tossing of the chair. The undersigned has no doubt that,

depending on the circumstances, throwing a chair in the

classroom could constitute either a violent act or threatening

behavior. On the other hand, such an act also could be neither

violent nor threatening, depending, once again, on the

circumstances.

84. In this case, it is a close question whether Brenes's

tossing of a chair away from the students to get their attention

and prevent a classroom disturbance from becoming chaotic

contravened the Rule. Assuming for argument's sake that it did,

however, the severity of the violation must be assessed, as

measured by Brenes's alleged resulting ineffectiveness.

85. There was no persuasive, direct evidence that Brenes's

effectiveness in the school system was impaired as a result of

the incident under consideration. Indeed, the absence of such

evidence con cerning Brenes's post - incident teaching performance

was itself telling as an indirect indicator of Brenes's likely

continued effectiveness. The opinion testimony that was offered

on this subject, which was conclusory and founded on facts that

the evidence failed to establish, failed as well to meet the

School Board's burden of proof.

86. Further, there was no persuasive evidence that, as the

incident unfolded, Brenes lost control of the class or otherwise

clearly demonstrated his ineffectiveness, as ha d the teacher on

trial in Walker v. Highlands County School Board , 752 So. 2d 127

(Fla. 2d DCA), rev. denied , 773 So. 2d 58 (Fla. 2000). 15

87. Ultimately, therefore, although 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. Rather, taking into

consideration all of the evidence in the record, it is

determined that Brenes can continue to be effective in the

school system , notwithstanding the incident at issue.

RECO MMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

order: (a) exonerating Brenes of all charges brought against

him in this procee ding; (b) providing that Brenes be reinstated

to the position from which he was suspended without pay; and (c)

awarding Brenes back salary, plus benefits, that accrued during

the suspension period, together with interest thereon at the

statutory rate.

DO NE AND ENTERED this 27th day of February, 2007, in

Tallahassee, Leon County, Florida.

S

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tall ahassee, 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 27th day of February, 2007.

ENDNOTES

1 / "Kate" is not the student's real name. A pseudonym is being

used in place of the child's initials —— which happen to be "K.

C." —— to avoid confusion.

2 / The undersigned is aware that, technically speaking, K. C.'s

prior statements are not inconsistent with his later hearing

testimony in the sense of being logically incompatible

therewith. That is, the recently remembered details in K. C.'s

testimony, which add facts to his previous statements, do not

contradict his contemporaneous, yet apparently inco mplete,

written accounts. Nevertheless, the undersigned expects that a

student who prepares a formal written statement charging a

teacher with wrongdoing will take care to include therein all

the relevant facts, which should be fresh in his mind,

especial ly when the statement is prepared, as here, shortly

after the event at issue. Further, common sense and experience

teach that memories generally do not improve over time but

instead fade, becoming less vivid and more prone to corruption.

Therefore, when a contemporaneous statement fails to include a

remarkable —— indeed seemingly unforgettable —— detail (the teacher

hit me in the head), which subsequent testimony purports to

prove, the undersigned considers the prior statement to be

inconsistent, if not in lo gic, then with reasonable expectations

about what the witness should have written contemporaneously if

his later testimony were to be credited as truthful.

3 / There is no evidence that Ms. Castillo was present in Ms.

C.'s classroom when K. C. wrote out h is statements, nor is there

any reason to believe that Ms. Castillo, if present, would have

pressured K. C. to hurry through the preparation of his written

statements.

4 / This detail, about which Brenes testified at hearing, was

also recounted in a writt en statement that Brenes had prepared

on January 2, 2006, in the presence of the detective, to whom

Brenes then gave the statement. Kate's written statement of

November 21, 2005, seems to corroborate Brenes's testimony

regarding this table - pushing inciden t.

5 / Brenes's prior statements are consistent with his hearing

testimony on this score. C. P.'s statement to the detective

corroborates Brenes in this particular, as does (albeit to a

lesser extent) Kate's testimony about the incident.

6 / At hearing, Brenes testified that he had tossed the chair not

only to capture the class's attention, but also to prevent

injury to the boy on the floor. In prior statements made during

the investigative phase, however, Brenes had never mentioned

that his tossing of the chair was done, in part, in an effort to

protect a student from harm. At any rate, Brenes's testimony in

this regard is too confusing —— and insufficiently believable —— to

support a finding of fact.

7 / C. P.'s testimony that Brenes was "a little bit ru nning" when

he approached him with the chair seems somewhat corroborative of

Brenes's testimony here. On the other hand, in prior statements

Brenes did not disclose, contrary to expectation, that he had

hurried over to C. P. to pull him out of harm's way.

8 / In fairness, it should be noted that Brenes is not entirely

to blame for the considerable confusion to which his testimony

gives rise. Suffice it to say that if the goal were to elicit a

coherent, chronological narrative, then the questions posed to

Brenes were not as effective as they might have been.

9 / Brenes was an uneven witness whose testimony the undersigned

has discounted as intermittently unreliable. Brenes, however,

did not have the burden to prove his innocence, and his relative

lack of credibility added nothing to the credibility of any

witness who testified against him. The upshot of Brenes's

weaknesses as a witness is the undersigned's inability to make

many affirmative exculpatory findings.

10 / The undersigned believes that ineffec tiveness stemming from

teacher misconduct in the classroom usually should be manifested

most clearly, if at all, in the immediate aftermath of the

misconduct, when the incident is fresh in everyone's minds.

Therefore, if Brenes were truly impaired, direct proof of such

ineffectiveness should have been available in abundance given

that he was allowed to continue teaching for two weeks after the

incident.

11 / 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 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).

12 / 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 gene ral 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 defi ne 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 misconduct in office, it is necessary

but not sufficient that a violation o f 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 r efers.

13 / If the School Board desires to forbid all touching of

students, then it ought to promulgate a rule that clearly and

unambiguously imposes such a prohibition, and quit referring to

"corporal punishment," a term which, as commonly used and

unders tood, denotes not any touching of the body, but painful

touching thereof.

14 / 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

wo rd, 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 listi ng, 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.").

15 / In Walker , a teacher a ppealed his discharge on the ground

that the school board had failed to prove that his violation of

school board policy resulted in impaired effectiveness. The

charges against him stemmed from a classroom incident that arose

from two apparently unrelated disruptions: an alleged theft of

someone's compact disc and the presence of an intoxicated

student. Id. at 128. A commotion ensued when the students

learned that school authorities, whom the teacher had summoned

for assistance, would search their person al belongings. The

teacher fanned the flames by offering to hold the students'

contraband in exchange for cash, although he evidently did not

intend that anyone would take this highly inappropriate proposal

seriously. Not surprisingly, the situation dege nerated into

chaos. Id.

The second district held that "under the circumstances

. . . [the teacher's] ineffectiveness may be inferred." Id.

Elaborating, the court explained that the "chaos in [the

teacher's] classroom" —— which accompanied his violation of

"established school board policy" —— "sp[oke] for itself"

regarding the teacher's resulting ineffectiveness. Id. It was

therefore permissible for the trier of fact to infer the

teacher's impaired effectiveness in the school system from the

loss of class room control to which his violation of school board

policy immediately had led.

In Walker , the basic fact from which the trier could infer

impaired effectiveness —— that which spoke for itself —— was

classroom chaos, i.e. the contemporaneous consequence of t he

teacher's violation of school board policy. Indeed, the

classroom chaos that resulted immediately from the teacher's

rule violation constituted direct (as opposed to circumstantial)

evidence of some actual impaired effectiveness on one occasion,

of lim ited duration.

The facts of Walker are readily distinguishable from those

at hand, because Brenes's conduct caused no chaos; to the

contrary, his conduct prevented a chaotic situation from

arising.

COPIES FURNISHED :

Ana I. Segura, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Mark F. Kelly, Esquire

Kelly & McKee, P.A.

1718 East Seventh Avenue

Tampa, Florida 33675

Carol Buxton, Esquire

Florida Education Association

140 South University Dri ve, Suite A

Plantation, Florida 34493

Deborah K. Kearney , General Counsel

Department of Education

325 West Gaines Street, Room 1244

Tallahassee, Florida 32399 - 0400

Jeanine Blomberg , Commissioner

Department of Education

Turlington Building, Suite 1514

3 25 West Gaines Street

Tallahassee, Florida 32399 - 0400

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 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.