06-002038 Miami-Dade County School Board vs. Arthur D. Williams Status: Closed Recommended Order on Monday, April 2, 2007.

Summary: Respondent`s effort to redirect a student back to his seat does not constitute misconduct warranting a 30-day, unpaid suspension.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD )

)

Petitioner, )

)

vs. ) Case No. 06-2038

)

ARTHUR WILLIAMS, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held in this case on

September 21, 2006, by video-teleconference with the parties

appearing from Miami, Florida, before J. D. Parrish, a designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Ana I. Segura, Esquire

Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

Carol R. Buxton, Esquire

Florida Education Association

140 South University Drive, Suite A

Plantation, Florida 33324

STATEMENT OF THE ISSUE

Whether the Respondent, Arthur Williams, committed the

violations alleged in the Amended Notice of Specific Charges and,

if so, whether such violations are just cause for his suspension

without pay for thirty days.

PRELIMINARY STATEMENT

This case began on May 31, 2006, when the Petitioner, School

Board of Miami-Dade County, Florida (Petitioner or School Board),

issued a letter to the Respondent, Arthur Williams (Respondent),

to announce its intention to take action to suspend the

Respondent without pay for thirty work days. The proposed action

alleged there was “just cause” for the disciplinary action based

upon the Respondent’s deficient job performance, conduct

unbecoming a school board employee, and violations of cited

School Board rules. The Respondent timely contested the

allegations and sought an administrative proceeding in connection

with the allegations. The School Board referred the case to the

Division of Administrative Hearings for formal proceedings on

June 12, 2006. At its meeting of June 14, 2006, the Petitioner

accepted the recommendation of the school superintendent and

approved the Respondent’s suspension. The Respondent served the

suspension, without pay, prior to the hearing in this cause.

In order to fully outline the allegations against the

Respondent, on June 14, 2006, the undersigned issued an order

directing the School Board to file a Notice of Specific Charges

no later than June 27, 2006. The School Board’s notice alleged

that the Respondent had inappropriately touched a student

resulting in an injury. Substantially, the School Board claimed

that the Respondent had placed his hands on a student, spun him

around, and shoved him toward his seat. The student allegedly

sustained an injury to his ankle as a result of the foregoing

activity. The Petitioner argued that the conduct was a violation

of School Board rules and constituted misconduct. Afterwards,

the School Board amended its claims to include a charge that the

conduct also constituted a violation of the Petitioner’s rule on

corporal punishment.

The hearing was scheduled for September 21, 2006. Prior to

the hearing, the Respondent moved to strike the testimony of

student witnesses in this cause and maintained that their

identities had not been promptly disclosed to the Respondent.

The motion to strike was denied. All of the students who

testified in this cause were enrolled in the Respondent’s sixth

period class at the time of the incident, were identified by

initials to the Respondent, and were disclosed to the Respondent

after notice of this proceeding was provided to their parents.

Additionally, the Respondent’s claim that the amendment to the

notice of charges to include a violation of the Petitioner’s rule

on corporal punishment violated the Respondent’s due process

interests has also been rejected.

At the hearing, the Petitioner presented testimony from C.

M. (the alleged victim); two other students; C. M.’s mother;

DanySu Pritchett, the School Board’s regional administrative

director; Derrick Gordon, a detective employed with the School

Board’s police unit; Gretchen Williams, an employee in the School

Board’s Office of Professional Standards; and the Respondent.

The testimony of Cheryl Nelson, the school principal, was late-

filed after the hearing. The Petitioner’s Exhibits 1-3, and 5-21

were admitted into evidence. The transcript of the proceeding

was filed on January 24, 2007. An unopposed motion to extend the

time to submit proposed recommended orders was filed on

February 2, 2007. By order entered February 5, 2007, the parties

were granted leave until February 20, 2007, to file their

proposed orders. Both parties timely filed Proposed Recommended

Orders that have been fully considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. The Petitioner is a duly constituted entity charged with

the responsibility and authority to operate, control, and

supervise the public schools within the Miami-Dade County Public

School District. As such, it has the authority to regulate all

personnel matters for the school district.

2. At all times material to the allegations of this case,

the Respondent, Arthur Williams, was an employee of School Board

and was subject to the disciplinary rules and regulations

pertinent to employees of the school district.

3. At all times material to this case, the Respondent was

employed pursuant to a professional service contract and was

assigned to teach beginning band at Norland Middle School.

4. The sole incident complained of in this case occurred on

or about January 24, 2006, in the Respondent’s sixth period band

class.

5. The Respondent’s band class was located in a large

classroom with three riser sections formed into a semi-circle.

Students assigned seats in the higher section would step up the

risers using the railed “hallways” leading to the upper sections.

6. On or about January 24, 2006, C. M. was a student in the

Respondent’s sixth period class. C. M. had an assigned seat in

an upper riser section. For reasons known only to C. M., the

student left his seat and walked down the riser hallway to pick

up a piece of paper and throw it into a trash can located on or

near the floor. Presumably, the trash can was at the lowest

section (compared to the student’s seat).

7. When the Respondent observed the student, C. M., out of

his seat, he approached the student, put his hands on the

student’s shoulders, turned him around (to then face his seat),

and told him to return to his seat. In connection with the

verbal direction to return to his seat, the Respondent gave the

student a slight shove to direct him in the proper direction.

8. The student, C. M., was out of his seat without

permission, was unprepared for class, and was not responsible for

throwing trash away (presumably an act he felt justified his

behavior). The slight shove was so imperceptible that it did not

offend any student who observed the action.

9. C. M. did not show any sign of injury at the time of the

incident described above. None of the students alleged that the

Respondent had acted in anger in redirecting the student to his

seat. None of the students perceived the act of redirecting the

student as an act of corporal punishment or physical aggression

against the student.

10. Some six days after the incident complained of, the

mother of the alleged victim took the student to the hospital.

The mother claimed the student was diagnosed with a sprained

ankle. There is no evidence to support a finding that the

Respondent caused the alleged victim’s alleged sprained ankle.

11. None of the other student witnesses verified that C. M.

was injured or seen limping on or about the date of the incident.

12. The Respondent continued teaching at the school through

the conclusion of the 2005-2006 school year. The Respondent did

not endanger the student, C. M., at any time.

13. After the incident complained of herein, the student’s

mother decided to move the student from the Respondent’s class.

14. When the Respondent went to a conference with the

office of professional standards there was no allegation that the

Respondent had failed to comply with the corporal punishment

guidelines. The act of redirecting the student to his seat was

not an attempt at corporal punishment.

15. The Respondent did not make physical contact with the

student, C. M., to maintain discipline. It is undisputed that

the Respondent was merely attempting to get the student to return

to his seat.

16. The Respondent’s conduct did not disparage the student.

17. The Respondent’s conduct did not embarrass the student.

18. The Respondent did not push C. M. down.

19. On or near the date of the incident, the Respondent

called C. M.’s parent to address the student’s poor class

performance. The incident complained of herein was not addressed

during the call. In fact, prior to the call, C. M. had not

complained regarding the incident described above. When faced

with an allegation of poor class performance, C. M. told his

parent about the incident described above and claimed he had been

injured in the process. The alleged injury prompted the removal

of the student from the Respondent’s class.

20. Thereafter, the parent contacted the Petitioner’s

region office to file a complaint against the Respondent. That

complaint resulted in the instant action. Ms. Pritchett

maintained that the Respondent’s effectiveness as a teacher has

been adversely impaired as a result of the parent’s complaint

regarding the incident.

21. The record lacks any information regarding the

Respondent’s past school performance. No prior disciplinary

issues or actions were noted.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of,

these proceedings. §§ 120.569 and 120.57(1), Fla. Stat. (2006).

23. The Petitioner bears the burden of proof in this cause

to establish by a preponderance of the evidence that the

Respondent committed the violations alleged. See McNeil v.

Pinellas County School Board , 678 So. 2d 476 (Fla. 2d DCA 1996).

24. A “preponderance” of the evidence means the greater

weight of the evidence. See Fireman's Fund Indemnity Co. v.

Perry , 5 So. 2d 862 (Fla. 1942). As reviewed in this matter, the

Petitioner has failed to establish by a preponderance of the

evidence that the Respondent violated the rules and policies of

the School Board to support “just cause” for an unpaid thirty day

suspension.

25. Section 1012.33, Florida Statutes (2006), provides, in

pertinent part:

. . . All such contracts, except continuing

contracts as specified in subsection (4),

shall contain provisions for dismissal during

the term of the contract only for just cause.

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.

26. In this case “misconduct in office” and a violation of

the corporal punishment guidelines are the underlying claims

against this Respondent.

27. Florida Administrative Code Rule 6B-4.009 defines

misconduct in office 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.

28. Section 1003.01(7), Florida Statutes (2006), provides:

(7) "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 may be necessary for self-

protection or to protect other students from

disruptive students.

29. In this case, the Respondent undoubtedly “touched” the

student, C. M. Common sense, however, must prevail. The

redirection of the student was not for disciplinary purposes, did

not subject the student to the ridicule of his peers, or result

in impairing the Respondent’s effectiveness as a teacher. It was

a single act of redirecting a student who was out of his seat.

No more, no less. None of the eyewitnesses to the incident were

offended by the Respondent’s conduct. The weight of the credible

evidence does not support a conclusion that the Respondent

injured the student. Many times the benefit of hindsight affords

a better method to return a student to his seat. In this case, a

verbal direction to the student might have succeeded.

30. The alleged victim did not complain about the incident

until the Respondent contacted his mother regarding the student’s

poor class performance. From that time forward accounts of the

incident escalated.

31. All of the students who testified were in the

Respondent’s sixth period class and had adequate opportunity to

see the incident. The three students gave consistent, clear

testimony. The Respondent was merely redirecting the student

back to his seat. This does not constitute “misconduct in

office” or a violation of the corporal punishment guidelines.

Teachers must be afforded an opportunity to conduct class within

reasonable parameters. Middle school students are not allowed to

leave their seats for any reason, even to throw trash away.

32. The allegations of this case spread because the parent

filed a complaint due to her son’s alleged injury. There is no

evidence that the students who actually saw the incident spread

accounts of it at the time it occurred. How likely is it that a

forceful shove or harsh handling of a student would have gone

without comment from students in the class? There is no evidence

that the Respondent’s conduct was fodder for the students’ school

grapevine. More important, there is no evidence that other

students sought to be removed from the Respondent’s class or that

the principal felt the conduct so heinous as to require the

removal of the teacher.

33. In this state educators are held to a high standard of

ethical behavior. It is concluded that the Respondent’s behavior

did not violate that standard. The Respondent did not attempt to

inflict bodily pain or discomfort on the student. The

Respondent’s contact with the student was insignificant, his

intent was merely to redirect the student to his seat.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Miami-Dade County School Board

enter a Final Order concluding the Respondent’s behavior does not

warrant a 30-day suspension.

DONE AND ENTERED this 2nd day of April, 2007, in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of April, 2007.

COPIES FURNISHED :

Dr. Rudolph F. Crew

Superintendent

Miami-Dade County School Board

1450 Northeast Second Avenue, No. 912

Miami, Florida 33132-1394

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Ana I. Segura, Esquire

School Board of Miami-Dade County

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Carol Buxton, Esquire

Florida Education Association

140 South University Drive, Suite A

Plantation, Florida 33324

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

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.