06-002369 Miami-Dade County School Board vs. Robert Boundy Status: Closed Recommended Order on Monday, April 30, 2007.

Summary: Petitioner demonstrated just cause for the 30-day suspension without pay of Respondent, due to misconduct in office and violation of Petitioner`s corporal punishment policy and violence in the workplace policy.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 06 - 2369

)

ROBERT BOUNDY, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was h eld in this case

on September 27 , 20 06, by video teleconference with connecting

sites in Miami and Tallahassee, Florida, before Errol H. Powell,

a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For P etitioner: Ana I. Segura , Esquire

School Board of Miami - Dade County

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

STATEMENT OF THE ISSUE

The issue for determination is whethe r Respondent had just

cause to suspend Petitioner for 30 workdays, without pay.

PRELIMINARY STATEMENT

By letter dated June 2 1, 200 6, Miami - Dade County School

Board, hereinafter Scho ol Board, notified Robert Boundy, among

other things, that the School Board , at its scheduled meeting on

March 15, 2006, took action to suspend him from employment for

30 workdays; th at the United Teachers of Dade, hereinafter UTD,

by letter dated May 24, 2006, contested the School Board’s

action and requested a hearing; that the request for hearing was

untimely; that the School Board, at its meeting on June 14,

2006, accepted his (Mr. Boundy’s) request to waive the 15 - day

filing requirement and granted the request for hearing. On

July 5 , 2006, this matter was referred to the Division of

Administrative Hearings.

On August 9 , 2006, the School Board filed a Notice of

Spe cific Charges, consisting of four count s. The School Board

charged Mr. Boundy as follows: Count I, Misconduct In Office –

violating Florida Administrative Code Rules 6B - 4.009(3) , 6B -

1.001(2) and (3), and 6B - 1.006(3)(a) and (f), constituting just

cause for suspensi on without pay ; Co unt II, Viol ation of School

Board Policy – violating School Board Rule 6Gx13 - 4A - 1.21 ,

constituting just cause for suspensi on without pay ; Count III,

Violation of Corporal Punishment Policy – violating Sections

1003.01(7) and 1002.20(4)(c), Florida Statutes, and School Board

Rule 6Gx13 - 5D - 1.07 , constituting just cause for suspension

without pay; and Count IV, Violation of Violence in the

Workplace Policy – violating School Board Rule 6Gx13 - 4 - 1.08 and

Florida Administrative Code Rules 6B - 1.001(2), or 6B -

1.006(3)(a), cons tituting just cause for suspension without pay .

At hearing, the School Board presented the testimony of

nine witnesses, including Mr. Boundy, and entered 28 exhibits

(Pet itioner's Exhibits numbered 1 - 28) into evidence. Mr. Boundy

present ed the testimony o f one witness and entered no exhibits

into evidence.

A transcript of the hearing was ordered. At the request of

the parties, the time for filing post - hearing su bmissions was

set for ten days following the filing of the transcript. The

Transcript , consist ing of one volume, was filed on January 8,

2007 . Subsequently, on January 16, 2007, Petitioner requested

an extension of time to file post - hearing submissions, to which

Respondent did not object; the request was granted. The parties

timely filed post - hea ring submissions, and their post - hearing

submissions have been considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. No dispute exists that the School Board is a

constitutional entity charged with the duty to operate, control

and su pervise the public schools within the school district of

Miami - Dade County, Florida.

2. No dispute exists that, at all times material hereto,

Mr. Boundy was employed full - time with the School Board as a

teacher and held a professional service contract.

3. Mr. Boundy had been a teacher with the School Board for

15 years.

4. In his professional career, Mr. Boundy had been a

teacher, then had practiced law in the State of Florida for 15

years, and had become a teacher again.

5 . No dispute exists that, a t a ll times material hereto,

Mr. Boundy was assig ned to Nautilus Middle School, hereinafter

Nautilus, in the Miami - Dade County’s school district. He was

assigned to teach science.

6 . On September 30, 2005, Mr. Boundy was teaching his

science class at Nautil us. He was having problems with one

particular student, D. M., who was approximately 14 years of

age. 1 D. M. had just returned to class from being on indoor

suspension, for cutting class.

7 . Earlier that day, after having returned from indoor

suspension , D. M. had been involved in a physical altercation, a

“minor” 2 fight, and Mr. Boundy counseled him. At lunch time,

another teacher broke - up a fight between D. M. and another

student; Mr. Boundy counseled him again. Mr. Boundy determined

that the first f ight did “ not ” warrant a “write - up” and that the

second fight perhaps “ may ” have warranted a write - up but that he

decided not to do so. 3

8 . After lunch , while in Mr. Boundy’s class, D. M. had

another fight with a student, which was D. M.’s third fight t hat

day. Mr. Boundy has a policy in his class that, “after three

strikes, you’re out,” 4 therefore, instead of counseling D. M.

again, Mr. Boundy determined that a “ write - up” was warranted and

that D. M. had to leave his class.

9 . Mr. Boundy told D. M. to leave the class and go to the

office . Before leaving the class, D. M. began spraying perfume

and t hen walked out into the hallway but did not go the office.

Mr. Boundy observed D. M. still outside in the hallway. When

Mr. Boundy walked out of his class into the hallway, he observed

D. M spraying perfume in the hallway. Mr. Boundy asked D. M. to

give the perfume to him (Mr. Boundy). D. M. raised his hand and

brought it down as if to strike Mr. Boundy at which time

Mr. Boundy grabbed D. M.’s hand and pu lled it behind his

(D. M.’s) back and told D. M. that he (D. M.) needed to go to

the office.

10 . The hallway outside of Mr. Boundy’s classroom is

equipped with a surveillance camera, which recorded the

interaction between Mr. Boundy and D. M. after the co ntact

described above. The surveillance camera does not record as a

regular video camera but records as a series of snapshots or

still pictures approximately every second, with gaps in betw een

the snapshots; therefore, the surveillance camera fails to

rev eal completely what happens within a segment of time. 5

11 . As a result of the gaps in between snapshots of the

surveillance camera, the testimony of witnesses is crucial in

determining what happened.

12 . While in the hallway, t he surveillance camera show s

Mr. Boundy’s back to it and D. M. directly in front of him in

such close proximity as if their bodies were touching.

Mr. Boundy testified that he took D. M. by the arms and was

directing him toward the doors leading to the office.

Mr. Boundy’s testimon y is found to be credible.

13 . Subsequently, while also in the hallway, the

surveillance camera, in several snapshots, shows Mr. Boundy and

D. M. separated, with D. M. facing Mr. Boundy, who testified

that D. M. wrestled away from him. The surveillance c amera also

shows, in one snapshot, Mr. Boundy’s left hand on D. M.’s right

shoulder and, in another snapshot, D. M. moving back toward the

classroom. Mr. Boundy testified that D. M. was going back to

the classroom without his ( Mr. Boundy’s ) permission. D . M.

admitted that he was returning to the classroom without

Mr. Boundy’s permission. Mr. Boundy’s testimony is found

credible.

14 . Further snapshots by the surveillance camera show

Mr. Boundy grabbing D. M. by the arms and shoulder area, when

D. M. get s close to the classroom, and pushing D. M. down the

hallway ; and show s som e students observing the conduct in the

hallway . Also, the snapshots by the surveillance camera show

Mr. Boundy and D. M. exiting the exit doors at the stairwell,

with Mr. Boundy c ontinuing to hold D. M.’s arms. After they go

through the exit doors , the snapshots by the surveillance camera

show Mr. Boundy releasing D. M. and watching D. M. go down the

stairs. Mr. Boundy testified that he told D. M. to go to the

office. D. M. does not deny that Mr. Boundy told him to go to

the office at that point.

15 . D. M. went to the main of fice. The school counselor,

Amy Magney, talked with D. M., who was loud and appeared to be

agitated. Ms. Magney observed marks on D. M.’s arms and the

bac k of his neck, which she described as “very red.” D. M.

informed Ms. Magney that Mr. Boundy’s forceful touching had

caused the red marks. Ms. Magney took D. M. to the assistant

principal, Ms. Gonsky, who observed marks on D. M.’s arms, which

were red, an d marks on D. M.’s the neck, shoulder area, which

Ms. Gonsky described as a “little red.”

16 . Mr. Boundy admits , and at no time did he deny , that he

grabbed D. M. by the arms and shoulder area. For example, at

the Conference for the Record (CFR) held on November 15, 2005,

Mr. Boundy admitted that he held D. M.’s arms by the back

directing him towards the stairs.

17 . A detective of the School Board’s police depa rtment

reviewed the snapshots by the surveillance camera. From the

detective’s observation, he determined that Mr. Boundy did not

take any malicious action against D. M.; that D. M. was

resisting Mr. Boundy; that, at one point, D. M. made an

aggressive action against Mr. Boundy; and that Mr. Boundy was

“directing, escorting ” D. M. through the exit doors.

1 8 . D. M. testified that Mr. Boundy also grabbed him

around the neck. Mr. Boundy denies that he grabbed or touched

D. M.’s neck but admits that he grabbed D. M. at the shoulder

area.

19 . V. V., a student in Mr. Boundy’s class , testified that

Mr. Boundy grabbed D. M. by the neck, pushing D. M. out of the

classroom. Also, the Conference for the Record (CFR) held on

November 15, 2005, indicates that the same student stated that,

while Mr. Boundy and D. M. were in the hallway, D. M. swung at

Mr. Boun dy and struck him in the chest. Mr. Boundy denies that

he was struck by D. M. and D. M. denies that he struck

Mr. Boundy. V. V.’s testimony is not found to be credible.

20 . The snapshots by the surveillance camera do not show

Mr. Boundy grabbing or touc hing D. M.’s neck. M s. Magney was

the first person in the school's office to observe the marks,

and when she saw the marks on the back of D. M.’s “neck,” the

marks were “very red ”; however, when Ms. Gonsky, the second

person in the school's office to obse rve the marks, the marks

around the “neck, shoulder area” were a “little red.” Further,

D. M. had been in two physical altercations before the incident

with Mr. Boundy and the last altercation had occurred at lunch

time. Ms. Gonsky’s account of the locat ion of the red marks is

not inconsistent with Mr. Boundy’s testimony, regard ing the

shoulder area . Additionally, when Ms. Gonsky observed the marks

at the neck, shoulder area, they were a little red, not red or

very red. The undersigned finds Mr. Boundy’ s and Ms. Gonsky’s

testimony and account more credible regarding the marks being at

the shoulder area, not the neck. Furthermore, the undersigned

finds that Mr. Boundy grabbed D. M. at the shoulder area and

that the marks at the shoulder area were caused by Mr. Boundy

and were a little red.

21 . No dispute exists that D. M. was being disruptive.

Mr. Boundy had counseled D. M. on two occasions that same day

for fighting. D. M. had committed a third strike by fighting

again in Mr. Boundy's class, and accor ding to Mr. Boundy's

classroom policy of which the students were aware, the third

strike meant that the student was leaving the classroom and

going to the school's office.

22 . Mr. Boundy was going to write - up D. M. for the

incident but did not do so. Be fore he could write - up D. M.,

Mr. Boundy was summoned to the school's office after the

administrators in the office observed the marks and heard

D. M.'s version of the incident.

23 . At the beginning of each school year, the principal of

Nautilus , Caridad Figueredo, has an opening meeting, consisting

of two days. At the opening meeting, among other things,

Ms. Figueredo notifies the Nautilus' faculty that they must

comply with the rules of the School Board and the Co de of

Ethics , and some of the rules are reviewed with the faculty.

Further, at the opening meeting, Nautilus' faculty is provided a

copy of t he Faculty Handbook. Nautilus' faculty signs an

acknowledgement that they understand that they are responsible

for becoming knowledgeable about the rules and adhering to them.

Mr. Boundy signed an acknowledgement and received a copy of the

Faculty Handbook.

24 . Regarding physical contact, Ms. Figueredo indicates at

the opening meeting that t he School Board prohibits using

physical contact to maintain dis cipline or to affect a student’s

behavior. As a result, at th e opening meeting, s he informs

Nautilus' faculty, and stresses to them, that they should not

use physical force or , generally, to come in physical contact

with the students.

25 . However, as to coming into physical contact with

students, an exception is recognized and allowed in the touching

of a student by a teacher if the teacher has a rapport with the

student and the student has no objection to or approves of the

teacher just tapping him or he r. That exception is not

applicable in the instant case.

26 . Nautilus had a 2005 - 2006 Faculty and Staff Handbook,

hereinafter Handb ook. The Handbook contained a Progressive

Discipline P lan, hereinafter Plan, for teachers to use when they

encounter disru ptive students. The Plan contained sever al steps

of action, which provided in pertinent part:

Step I: Teacher

The teacher may handle discipline in the

following ways (list not inclusive):

Move close to the student – use verbal

and/or non - verbal technique s to correct

behavior problems

* * *

Speak with the student on a one - to - one basis

* * *

Contact parent (verbal and/or written)

Hold parent or student/parent conference

PLEASE NOTE: Parent contact is REQUIRED

before a referral can be made to th e

administration. Only disciplinary problems

involving infractions of the Code of Student

Conduct Group III or higher (fighting . . .)

may be directly referred to the

administration using a case management form.

* * *

Step IV: Referring Students For

Administrative Action

Students should be sent directly to the

appropriate administrator only when critical

incidents occur such as fighting . . .

Please use your emergency button to request

for[sic] assistance.

If a student becomes disruptive and you

re quest removal the administrator will take

the appropriate disciplinary action deemed

necessary according to the Code of Student

Conduct and provide teachers immediate

feedback.

(emphasis in original)

The Handbook also contained a section entitled “Things To

Remember When Dealing With A Student,” which provided in

pertinent part:

4. DON’T:

Snatch things away from students.

Become confrontational.

Physically block an exit.

Argue or get on the student’s level.

Shout or put them down.

Disrespect them.

* * *

6. Use common sense regarding touching

students: Be aware that affectionate

gestures may be misconstrued. Avoid

physical contact of any kind in situations

involving you and student (i.e. where there

are no witnesses).

Additionally, the Handbook co ntained a section entitled “How to

Avoid Legal Complications as an Educator,” which provided in

pertinent part:

Respect the space of others. Do not place

your hands on students.

* * *

Know the laws, School Board policies and

school rules, and follow them.

* * *

Corporal punishment is prohibited in Miami -

Dade County Public Schoolseat each

student with respect. Establish a policy

regarding discipline. Distribute the policy

to students and parents at the beginning of

the year or when the st udents begin your

class.

27 . The School Board has established “Procedures for

Promoting and Maintaining a Safe Learning Environment,” which

provides in pertinent part:

Purpose of the Procedures for Promoting and

Maintaining a Safe Learning Environment

T his document, Procedures for Promoting and

Maintaining a Safe Learning Environment, is

incorporated by reference and is a part of

School Board Rule 6Gx13 - 5D - 1.08 , Maintenance

of Appropriate Student Behavior. It has

been prepared to assist school

administr ators in promoting and maintaining

a safe learning environment in the public

schools of Miami - Dade County, Florida.

These procedures and directions are set

forth to guide and promote orderly and

productive participation of students in

school life and supp ort the achievement of

Florida's education goal for school safety

and environment, Section 229.591(3)(e), F.S.

Student actions and behaviors that can be

defined as disruptive and/or threatening

must be dealt with according to Florida

Statutes, and Flori da Board of Education and

Miami - Dade County School Board Rules. This

manual contains information necessary to

assist school administrators in making the

most appropriate decisions and taking

warranted action in promoting maintaining a

safe learning enviro nment.

* * *

Administrators, counselors, and appropriate

staff are expected to become familiar with

this document, to review it periodically,

and to utilize it according to its inherent

purpose -- promoting and maintaining a safe

learning environment in the public schools

of Miami - Dade County, Florida. As the

administration and staff at each school site

address the requirements of current Miami -

Dade County Public Schools (M - DCPS)

guidelines, they should also review

modifications of requirements relat ed to

school discipline and school safety as

established by the Florida Legislature.

* * *

GUIDELINE #39: REMOVAL OF STUDENT FROM

CLASS AND POSSIBLE EXCLUSION OF THE STUDENT

BY THE TEACHER

CURRENT LAW AND/OR PRACTICE: Florida

Statutes and Miami - Da de County School Board

Rules allow for teachers to remove a

disruptive student from class if the

behavior of the student has an adverse

effect on the teacher's ability to

communicate effectively with students or the

ability of the students to learn. Secti on

232.271, F.S., provides for the right of the

teacher to refuse to accept a student back

to class who has been removed for disruptive

behavior which adversely affects the

teacher's ability to communicate effectively

with the students or with the ability of the

students to learn.

Provisions for Exceptional Students: The

Placement Review Committee shall refer to

the IEP team all exclusion requests for

students from exceptional education classes.

A. Temporary Removal from Class

1. The teacher shall have t he authority to

remove a seriously disruptive student from

the classroom. In such cases, the principal

or designee shall be notified immediately

and the teacher shall be entitled to

receive, prior to the student's return to

class, a report describing corr ective

action(s) taken. Guidelines for

implementing this provision shall be

developed by each Educational Excellence

School Advisory Council (EESAC).

B. Code of Student Conduct Infractions

1. The principal or designee will follow

the Code of Student Co nduct on all

disciplinary matters.

2. Only those disciplinary problems which

disrupt a teacher's instruction, when the

teacher requests the student's permanent

removal from class, shall be referred to the

Placement Review Committee, if the request

is not resolved by the principal.

28 . A CFR was held on No vember 15, 2005. A Summary of the

CFR was prepared and provides in pertinent part:

[Mr. Boundy was asked]: 'Did you touch the

student?' [Mr. Boundy] replied: 'Yes and it

will never happen again.'

* * *

The following directives are herein

delineated which were issued to you

[Mr. Boundy] during the conference:

1. Adhere to all M - DCPS [Miami - Dade County

Public Schools] rules and regulations at all

times, specifically School Board Rules [sic]

6Gx13 - 4 A - 1.21 , Responsibilities and Duties.

2. Adhere to The Code of Ethics and the

Principles of Professional Conduct of the

Education Profession in Florida.

3. Cease and desist from utilizing physical

means to effect the behavior of students.

* * *

Duri ng the conference, you [Mr. Boundy] were

directed to comply with and were provided

copies of the following School Board Rules:

6Gx13 - 4A - 1.21 , Responsibilities and Duties

6Gx13 - 4A - 1.213 , The Code of Ethics

You [Mr. Boundy] were advised of the high

esteem i n which teachers are held and of the

District's [School Board's] concern for any

behavior, which adversely affects this level

of professionalism. You [Mr. Boundy] were

reminded of the prime directive to maintain

a safe learning environment for all student s

and that your actions violated this

directive. . . .

29 . Further, attached to the Summary of the CFR was

" Guideline #9: Corpora l Punishment, Current Law and/or Practice,

from the Procedures for Promoting and Maintain ing a Safe

Learning Environment, " wh ich provides in pertinent part:

GUIDELINE #9: CORPORAL PUNISHMENT

CURRENT LAW AND/OR PRACTICE: CORPORA L

PUNISHMENT IS PROHIBITED IN MIAMI - DADE

COUNTY PUBLIC SCHOOLS. . . .

Corporal punishment is physical force or

physical contact applied to the body as

p unishment.

Section 228.041(27), F.S., defines corporal

punishment as:

. . . 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.

The use of physical restraint techniques in

accordance with the Miami - D ade County School

Board Rule 6Gx13 - 6A - 1.331 , Procedures for

Providing Special Education for Exceptional

Students and Article VIII of the Contract

Between Miami - Dade County Public Schools and

the United Teachers of Dade is not corporal

punishment.

30 . Pri or to Mr. Boundy ’s going into the hallway, to

confront D. M., alternative avenues were available to Mr. Boundy

for sending D. M. to the school's office without confronting him

in the hallway. Nautilus has a protocol that, whenever a

teacher is unable to c ontrol a disruptive student by using

classroom management techniques, the teacher can press a

security button, located in the classroom, and a security

monitor or an administrator will immediately come to the

classroom. The security monitor or administrat or will assess

the situation and remove the disruptive student. Mr. Boundy

failed to use this established protocol.

31 . The undersigned d oes not find credible the testimony

given on alternative methods of dealing with D. M., as a

disruptive student, in t erms of in - school suspension, student

mediation, conflict resolution, parent involvement, alternative

education, suspension, and expulsion as being applicable to the

instant case. Th ese alternatives are available after the

student is removed from the clas sroom to the school's office;

they fail to address the immediate removal of the physical

presence of a disruptive student from the classroom.

32 . The exception to corporal punishment found at

Guideline Nos. 9 and 39, regarding the use of physical restrain t

techniques for situations involving E xceptional S tudent

Education (ESE) , is not applicable to the instant case.

Mr. Boundy's class was not an ESE class , and D. M. was not an

ESE student.

33 . Also, the exception to corpora l punishment found at

Guideline No. 9, regarding situations to protect other students ,

is not applicable to the instant case. None of the other

students in Mr. Boundy's class were in harm's way or needed

protection in the hallway outside Mr. Boundy's classroom.

34 . However, the except ion to corpora l punishment in a

situation for self - protection, i.e., the protection of

Mr. Boundy from D. M. , was applicable in the instant case. When

D. M. raised his hand and brought it down as if to strike

Mr. Boundy, Mr. Boundy grabbed D. M.'s arms an d put his

(D. M.'s) arms behind his back; at that instant, Mr. Boundy was

in need of self - protection and he (Mr. Boundy) acted

appropriately.

35 . But, the evidence fai ls to demonstrate that, after

Mr. Boundy prevented D. M. from striking him , Mr. Boundy

c ontinued to be in need of self - protection. Self - protection

failed to continue to exist and failed to exist during the time

that Mr. Boundy was directing/escorting D. M. down the hall to

the exit doors.

36 . The Administrative Director of the School Board' s

Office of P rofessional Standards, Gretchen Williams, testified

that Mr. Boundy's use of physical contact in the handling of

D. M. in the hallway and that the presence of red ma rks on

D. M., exemplified excessive force, which rendered Mr. Boundy's

action as a violent act. Further, she testified that

Mr. Boundy's conduct was corporal punishment; that his violent

act constituted unseemly conduct ; and that his violent act was

contrary to the School Board's prime directive to maintain a

safe learning environm ent, which constituted unseemly conduct

and was conduct unbecoming a School Board employee.

Ms. Williams' testimony is found to be credible.

37 . Also, the School Board's Administrative Director,

Region II, DanySu Pritchett testified that Mr. Boundy's phy sical

force constituted violence in the workplace; and that he failed

to maintain the respect and confidence of the student and the

value of worth and dignity of the student through the use of

physical fo rce. Further, she testified that the failure to use

an alternative method of removal by using the emergency call

button was poor judgment and constituted conduct unbecoming a

School Board employee . Ms. Pritchett's testimony is found to be

credible.

38 . Additionally, Ms. Figu eredo, testified that Mr. Boun dy

subjected D. M. to unnecessary embarrassment by using physical

force in the hallway i n front of D. M.'s classmates while

Mr. Boundy was directing/escorting D. M. down the hall .

Further, Ms . Figueredo testified that, during the hallway

incident, Mr. Bou ndy engaged in corporal punishment, conduct

unbecoming an employee of the School Board, unseemly conduct,

and poor judgment, and was not a good role mode l to the students

and staff. Ms . Figueredo's testimony is found to be credible.

39 . Also, Ms . Figuere do test ified that Mr. Boundy's use of

poor judgment and failure to use established protocol and to

exemplify a good role model to the students and the staff caused

Mr. Bound y to lose his effectiveness. Ms . Figueredo's testimony

is found to be credible.

40 . Pending the investigation of the incident by the

School Board, Mr. Boundy was removed from the classroom. He was

placed on alternative assignment, i.e., at his home.

41 . Due to Mr. Boundy's failure to follow est ablished

protocol at Nautilus for the r emoval of D. M. from the

classroom , to the physic al force used by Mr. Boundy, to the

marks that were a little red and were caused by the physical

force, and to the seriousness of the incident, by memorandum

dated November 21, 2005, Ms . Figueredo recommende d a 30 - day

suspension for violation of School Board Rule 6Gx13 - 4A - 1.21 ,

Responsibilities and Duties. Ms. Pritchett agreed with the

recommendation.

42 . By memorandum dated December 1, 2005, the School

Board's Region Center II concurred in the recommendati on.

43 . On February 28, 2006, a meeting was held with

Mr. Boundy to address the forthcoming School Board's

consideration of the recommendation for a 30 - day suspension

without pay. Those in attendance included Mr. Boundy,

Ms. Williams, Ms. Pritchett, Ms. Figueredo, and a UTD

representative, Mr. Molnar. The determination was that

Mr. Boundy would be recommended for a 30 - day suspension without

pay for just cause, including but not limited to "deficient

performance of job responsibilities; conduct unbecoming a School

Board employee; and violation of State Board Rule 6B - 1.001, Code

of Ethics of the Education Profession in Florida; and School

Board Rules 6Gx13 - 4A - 1.21 , Responsibilities and Duties; and

6Gx13 - 5D - 1.07 , Corporal Punishment -- Prohibited."

44 . By let ter dated March 1, 2006, Mr. Boundy was notified

by the School Board's Assistant Superintendent, among other

things, that the School Board's Superintendent would be

recommending, at the School Board's meeting scheduled for

March 15, 2006, the 30 - day suspen sion without pay for just

cause, indicating the violations aforementioned.

45 . By letter dated March 16, 2006, the School Board's

Assistant Superintendent notified Mr. Boundy, among other

things, that the School Board had approved the recommendation

and t hat he was not to report to work at Nautilus from March 16,

2 006 through April 26, 2006.

CONCLUSIONS OF LAW

46 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to Section s 120.569 and 120.57(1),

Florida Statutes (2006).

47 . The School Board has the burden of proof to show by a

preponderance of the evidence that Mr. Boundy committed the

offenses in the Notice of Specific Charges. McNeil v. Pinellas

County School Board , 67 8 So. 2d 476 (Fla. 2d DCA 1996); Dileo v.

School Board of Dade County , 569 So. 2d 883 (Fla. 3d DCA 1990).

48 . No dispute exists that at all t imes material hereto,

Mr. Boundy was subject to the rules and regulations of the

School Board and that his employm ent was also subject to the

terms and conditions of the contract between the School Board

a nd the UTD Contract .

49 . The School Board contends that just cause exists for

the suspension , without pay, of Mr. Boundy.

50 . Section 1012.22, Florida Statutes (20 05), provides in

pertinent part:

The district school board shall:

(1) Designate positions to be filled,

prescribe qualifications for those

positions, and provide for the appointment,

compensation, promotion, suspension, and

dismissal of employees as foll ows, subject

to the requirements of this chapter:

* * *

(f) Suspension, dismissal, and return to

annual contract status . -- The district school

board shall suspend, dismiss, or return to

annual contract members of the instructional

staff and other sch ool employees; however,

no administrative assistant, supervisor,

principal, teacher, or other member of the

instructional staff may be discharged,

removed, or returned to annual contract

except as provided in this chapter.

51 . Section 1012.33, Florida St atutes (2005 ), provides in

pertinent part:

(1)(a) Each person employed as a member of

the instructional staff in any district

school system shall be properly certified

pursuant to s. 1012.56 or s. 1012.57 or

employed pursuant to s. 1012.39 and shall be

en titled to and shall receive a written

contract as specified in this section. 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. (em phasis added)

* * *

(6)(a) Any member of the instructional

staff, excluding an employee specified in

subsection (4), may be suspended or

dismissed at any time during the term of the

contract for just cause as provided in

paragraph (1)(a). The distr ict 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 sha ll be paid. . . .

52 . The UTD Contract, which provides in pertinent part:

ARTICLE V -- EMPLOYER RIGHTS

Section 1. Exclusive Management Authority

The provisions of this Contract are not to

be interpreted in any way or manner to

change, amend, modify, o r in any other way,

to delimit the exclusive authority of the

Board [School Board] and the Superintendent

for the management of the total school

system and any part of the school system.

It is expressly understood and agreed that

all rights and responsibi lities of the Board

[School Board] and Superintendent, as

established now and through subsequent

amendment or revision by constitutional

provision, state and federal statutes, State

Board and Board Rules, shall con tinue to be

exercised exclusively by the B oard [School

Board] and Superintendent without prior

notice or negotiations with the Union [UTD],

except as specifically and explicitly

provided for by the stated terms of this

Contract. Such rights thus reserved

exclusively to the Board [School Board] an d

Superintendent, by way of illustration and

not by way of limitation, include the

following: (1) selection and promotion; (2)

separation, suspension, dismissal, and

termination of employees for just cause

. . . . (emphasis added)

53 . Florida Administr ative Code Rule 6B - 4.009, Criteria

for Suspension and Dismissal, provides in pertinent part:

The basis for charges upon which dismissal

action against instructional personnel may

be pursued . . . The basis for each of such

charges is hereby defined:

* * *

(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, FAC., and the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B -

1.006, F AC., which is so serious as to

impair the individual's effectiveness in the

school system.

54 . Florida Administrative Code Rule 6B - 1.001, Code of

Ethics of the Education Profession in Florida, provides in

pertinent:

(2) The educator's primary profession al

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) Aware of the importanc e 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.

5 5 . Florida Administrative Code Rule 6B - 1. 006, Principles

of Professional Conduct for the Education Profession in Florida,

provides in pertinent part:

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

(2) Violati on of any of these principles

shall 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 reason able effort to protect

the student from conditions harmful to

learning 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.

(f) Shall not intentionally violate or deny

a student's legal rights.

56 . The School Board's interpretation of its own rules is

given great deference unless it amounts to an unreasonable

interpretation or is clearly erroneous. Woodley v. Department

of Health and Rehabilitative Services , 505 So. 2d 676, 678 (Fla.

1st DCA 1987).

57 . School Board Rule 6Gx13 - 4A - 1.21 , Responsibilities and

Duties, provides in pertinent part:

I. Employee Conduct

All persons employed by The School Board of

Miami - Dade County, Florida a re

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 school system.

Unseemly conduct or t he use of abusive

and/or profane language in the workplace is

expressly prohibited.

58 . School Board Rule 6Gx13 - 4A - 1.213 , Code of Ethics,

provides in pertinent part:

II. APPLICATION

This Code of Ethics applies to all members

of The School Board of Miam i - Dade County,

Florida, administrators, teachers, and all

other employees. . .

Employees are subject to various other laws,

rules, and regulations, including but not

limited to “The Code of Ethics for the

Education Profession in Florida and the

Principle s of Professional Conduct of the

Education Profession in Florida,” Chapter

6B - 1.001 and - 1.006, F.A.C., the “Code of

Ethics for Public Officers and Employees,”

found in Chapter 112, Part III of the

Florida Statutes, and School Board Rule

6Gx13 - 4A - 1.212 , Co nflict of Interest, which

are incorporated herein by reference and

this Code of Ethics should be viewed as

additive to these laws, rules and

regulations. To the extent not in conflict

with any laws, School Board rules or

governmental regulations, this Cod e of

Ethics shall control with regard to conduct.

In the event of any conflict, the law,

regulation or School Board Rule shall

control.

III. FUNDAMENTAL PRINCIPLES

The fundamental principles upon which this

Code of Ethics is predicated are as follows:

Citizenship – Helping to create a society

based upon democratic values; e.g., rule of

law, equality of opportunity, due process,

reasoned argument, representative

government, checks and balances, rights and

responsibilities, and democratic decision -

making .

Cooperation – Working together toward goals

as basic as human survival in an

increasingly interdependent world.

Fairness – Treating people impartially, not

playing favorites, being open - minded, and

maintaining an objective attitude toward

those whose a ctions and ideas are different

from our own.

Honesty – Dealing truthfully with people,

being sincere, not deceiving them nor

stealing from them, not cheating or lying.

Integrity – Standing up for your beliefs

about what is right and what is wrong and

res isting social pressure to do wrong.

Kindness – Being sympathetic, helpful,

compassionate, benevolent, agreeable, and

gentle toward people and other living

things.

Pursuit of Excellence – Doing your best with

the talents you have, striving toward a

goal, and not giving up.

Respect – Showing regard for the worth and

dignity of someone or something, being

courteous and polite, and judging all people

on their merits. It takes three major

forms: respect oneself, respect for other

people, and respect for all forms of life

and the environment.

Responsibility – Thinking before you act and

being accountable for your actions, paying

attention to others and responding to their

needs. Responsibility emphasizes our

positive obligations to care for each other.

Each employee agrees and pledges:

1. To abide by this Code of Ethics, making

the well - being of the students and the

honest performance of professional duties

core guiding principles.

* * *

4. To treat all persons with respect and to

strive to be fair in all matters.

5. To take responsibility and be

accountable for his or her actions.

* * *

V. CONDUCT REGARDING STUDENTS

As set forth in the Principles of

Professional Conduct for the Education

Profession in Florida, each employee

1. 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.

* * *

5. Shall not intentionally expose a student

to unnecessary embarrassment or

disparagement.

6. Shall not intentionally violate or deny

a student's legal rights.

59 . Regarding corporal punishment, Section 1003.01,

Florida Statutes (2005), provides in pertinent part:

(7) 'Corporal punishment' means the

moderate use of physical force or physical

con tact 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 -

protectio n or to protect other students from

disruptive students.

60 . Further, Section 1002.20, Florida Statutes (2005),

provides in pertinent part:

(4) DISCIPLINE

* * *

(c) Corporal punishment. -- In accordance

with the provisions of s. 1003.32, corporal

p unishment of a public school student may

only be administered by a teacher or school

principal within guidelines of the school

principal and according to the district

school board policy. . . .

61 . School Board Rule 6Gx13 - 5D - 1.07 , provides in pertinent

p art:

CORPORAL PUNISHMENT -- PROHIBITED

The administration of corporal punishment in

Miami - Dade County Public Schools is strictly

prohibited. Miami - Dade County Public

Schools has implemented comprehensive

programs for the alternative control of

discipline . These programs include, but are

not limited to, counseling, timeout rooms,

in - school suspension centers, student

mediation and conflict resolution, parental

involvement, alternative education programs,

and other forms of positive reinforcement.

In addi tion, suspensions and/or expulsions

are available as administrative disciplinary

actions depending upon the severity of the

misconduct. . . .

62 . The School Board interprets the prohibition of

corporal punishment to include forcing a student through

phy sical contact to do something that the student does not wish

to do. However, corporal punishment does not include self -

protection or conduct for the protection of students. The

School Board ’ s interpretation is not unreasonable nor is it

clearly erroneous .

63 . The evidence fails to demonstrate that, prior to the

hallway incident, Mr. Boundy engaged in corporal punishment.

64 . Additionally, the evidence fails to demonstrate that

Mr. Boundy engaged in corporal punishment when D. M. lifted his

(D. M.'s) han d and brought it down as if to strike Mr. Boundy

and Mr. Boundy grabbed D. M. That action by Mr. Boundy was not

captured on the surveillance camera. In that particular

instance, Mr. Boundy was protecting himself.

65 . However, when Mr. Boundy released D . M. and D. M.

moved away from Mr. Boundy down the hall, the evidence

demonstrates that the need for self - protection no longer

existed.

66 . Furthermore, when D. M. turned around and came back

toward s the classroom with the intent to enter the classroom,

the evidence demonstrates that Mr. Boundy engaged in corporal

punishment. Mr. Boundy had available to him an alternative to

grabbing D. M.; Mr. Boundy could have re - entered his classroom

and pushed the emergency button, which would have caused a

security person or an administrator to come to the classroom or

the hallway and remove D. M. This alternative was an

established protocol of Nautilus and should have been used by

Mr. Boundy.

67 . The School Board argues that the use of corporal

punishment by Mr. Boundy does not reflect credit upon himself,

constitutes unseemly conduct and fails to protect D. M. from

conditions harmful to learning and/or D. M.'s physical health

and/or safety. Therefore, the School Board argues that

Mr. Boundy's conduct violated Sc hool Board Rules 6Gx13 - 4A - 1.21

and 6Gx13 - 4A - 1.213 . As a result, the School Board contends that

his violation of the School Board Rules constitute misconduct in

office and is just cause f or suspension.

68 . The School Board's interpretation of its own rul es is

reasonable. The evidence demonstrates that Mr. Boundy violated

School Board Rules 6Gx13 - 4A - 1.21 and 6Gx13 - 4A - 1.213 .

69 . Further, the evidence demonstrate s that Mr. Boundy

violated the Code of E thics and committed misconduct in office.

70 . Addition ally, the School Board argues that

Mr. Bo undy's impaired effectiveness as a teacher may be

inferred , thus , resulting in just cause for suspension due to

misconduct in office, citing Walker v. Highlands County School

Board , 752 So. 2d 127 (Fla. 2nd DCA 2000 ). The undersigned is

persuaded that Walker , supra , is applicable to the case at hand.

The evidence in the case at hand demonstrates that Mr. Boundy’s

conduct “by its very nature, demonstrates his ineffectiveness in

the school system” and that “independe nt evidence” of his

ineffectiveness in such a situation would be “superfluous.” Id.

at 128.

71 . Also, the School Board argues that Mr. Boundy's

conduct violated the School Board's policy on violence in the

workplace . School Board Rule 6Gx13 - 4 - 1.08 provi des in pertinent

part:

VIOLENCE IN THE WORKPLACE

Nothing is more important to Dade County

Public Schools (DCPS) than protecting the

safety and security of its students and

employees and promoting a violence - fee work

environment. Threats, threatening beha vior,

or acts of violence against students,

employees . . . 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.

Any person who makes substantial threats,

exhibits threatening behavior, or engages in

violent acts on DCPS property shall be

removed from the premises as quickly as

safety permits, and shall remain off DCPS

premises pending the outcome of an

investigation. DCPS will initiate an

appropr iate response. This response may

include, but is not limited to, . . .

reassignment of job duties, suspension or

termination of employment . . . of the

person or persons involved.

72 . The evidence demonstrates that Mr. Boundy committed

violence in the w orkplace as set forth by School Board Rule

6Gx13 - 4 - 1.08 and, therefore, violated the said Rule.

73 . Therefore, the School Board demonstrated that

Mr. Boundy's conduct violated the Code of Ethics and Florida

Administrative Code Rules 6B - 1.001, 6B - 1.006, an d 6B - 4.009.

7 4 . Hence, the School Board established and demonstrated

that Mr. Boundy's conduct constituted just cause for a 30 - day

suspension without pay.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED th at the Miami - Dade County S chool Board enter a

final order finding that just cause existed for the 30 - day

suspension, without pay, from employment of Robert Boundy.

DONE AND ENTERED this 30th day of April 2007, in

Tallahassee, Leon County, Florida.

S

__________________________________

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 92 1 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of April , 2007.

ENDNOTES

1/ At hearing, D. M. testified that he was 15 years of age.

2/ Descriptive word used by Mr. Boundy.

3/ Id .

4/ Id .

5/ This Administrative Law Judge viewed a copy of the incident

recorded by the surveillance camera admitted into evidence as

Petitioner's Exhibit 27.

COPIES FURNISHED:

Ana I. Segura, Esquire

School Board of Miami - Dade County

1450 Northeast Second Ave nue, Suite 400

Miami, Florida 33132

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

Dr. Rudolph F. Crew, Superintendent

Miami - Dade County School District

1450 Northeast Second Avenue, No. 912

Miami, Florida 33132 - 1394

Jeanine Blomberg, Interim Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Deborah K. Kearney, General Counsel

Department of Education

Turlingt on Building , Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

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.