06-003812TTS Alachua County School Board vs. Casey A. Carlisle Status: Closed Recommended Order on Monday, February 5, 2007.

Summary: Petitioner failed to establish violations of Florida Administrative Code Rules 6B-1.001 and 6B-1.006, or related school board policies, where Respondent simply raised his voice to correct a student for talking and did not threaten or humiliate the child.

Case No. 06-3812

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALACHUA COUNTY SCHOOL BOARD, ) ) ) ) ) ) ) ) ) )

Petitioner, RECOMMENDED ORDER

vs.

CASEY A. CARLISLE,

Respondent.

On November 28, 2006, a hearing was held in Gainesville,

Florida, pursuant to the authority set forth in Sections 120.569

and 120.57(1), Florida Statutes. The case was considered by Lisa

Shearer Nelson, Administrative Law Judge.

APPEARANCES

For Petitioner: Thomas L. Wittmer, Staff Attorney

Alachua County School Board

620 East University Avenue

Gainesville, Florida 32601

For Respondent: Emily Moore, Staff Counsel

Florida Education Association

118 North Monroe Street

Tallahassee, Florida 32399-1700

STATEMENT OF THE ISSUE

Whether Respondent is subject to personnel action as

specified in the Notice of Charges and if so, what action should

be taken.

PRELIMINARY STATEMENT

On September 11, 2006, Respondent was served with a Notice

of Charges alleging violations of Florida Administrative Code

Rules 6B-1.001(2) and (3), and 6B-1.006(3)(a) and (e). On

September 26, 2006, Respondent filed a Petition for Formal

Hearing disputing the facts alleged in the Notice of Charges and

requesting a hearing pursuant to Sections 120.57(1) and

1012.33(6)(a)2., Florida Statutes.

On October 4, 2006, the case was forwarded to the Division

of Administrative Hearings and assigned to the undersigned.

Formal hearing was noticed for November 28, 2006, and proceeded

as scheduled. Petitioner presented the testimony of 7 witnesses

and Petitioner's Exhibits numbered 1-8 were admitted into

evidence. Respondent presented the testimony of 11 witnesses and

Respondent's Exhibits numbered 8, 10-15 were admitted, as well as

Joint Exhibits numbered 1-6. The parties stipulated that

Petitioner's Exhibits numbered 2-5 and all of Respondent's

exhibits were to be considered for the purposes of penalty only

in the event that the violations alleged in the Notice of Charges

were proven.

The two-volume transcript was filed December 11, 2006. At

hearing, the parties requested additional time for the filing of

proposed orders and were given until January 15, 2007; inasmuch

as January 15 was the observance of the Martin Luther King Jr.,

holiday, the proposed recommended orders were due January 16,

2007. Both parties timely submitted Proposed Recommended Orders

which were considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. Respondent Casey Carlisle is a teacher at Santa Fe High

School and is employed by the Alachua County School Board on a

professional service contract. Respondent has taught at Santa Fe

High School since 1990 and has taught in the Florida public

school system for 32 years.

2. The 2006-2007 school year for students began on Monday,

August 14, 2006. Respondent teaches a business systems

technology course during the sixth period in Room 11-011. The

class has approximately 30 students.

3. Respondent is hard of hearing. He advises both teachers

and students of his hearing problem, and tends to speak louder

than most. According to his wife, he does not need a microphone

when he is talking. He had advised the sixth period class of his

hearing problem and his tendency to speak loudly on the first day

of school.

4. Room 11-011 is a large classroom, although not the

largest in the school. The noise from the air conditioner,

lights, computers and monitors, and the normal activity of having

a classroom full of students shuffling their feet and passing

things out, combined with Respondent's hearing deficit, is such

that Respondent finds it necessary to speak loudly in this room.

Respondent also has a tendency to "talk with his hands," and did

so often during his testimony at hearing.

5. The computers in Respondent's classroom were not

functioning properly on the first day of school, which caused

frustration for students and teacher alike. As a result,

Respondent changed his plans for the second day and gave the

students an alternative lesson. In preparing for this lesson, it

was necessary for him to hand out books and document holders at

the beginning of class that were still in the storage cabinets in

the classroom.

6. On this same day, Principal Bill Herschleb was

monitoring students in a common area on campus during the

transition between fifth and sixth periods, which is his normal

practice during the initial days of a school year. A student

came up to him and asked for help retrieving a backpack that had

been left in Room 11-011. Herschleb escorted the student to the

classroom to retrieve the backpack so that the student would not

be considered tardy going to his next class.

7. Herschleb entered Respondent's classroom with the

student while Respondent was giving instruction and handing out

books and document holders. According to Herschleb, he remained

in the room only 15-30 seconds, and Respondent's back was to him.

Herschleb testified that Respondent was yelling down the second

row of students in the direction of a particular student, leaning

toward that student and saying very loudly, "Come on, buddy, come

on," in what the principal perceived as a threatening challenge.

The principal believed that he would have to intervene because a

physical confrontation was eminent.

8. The principal testified that Respondent was speaking

much louder than normal; that he was gesturing and motioning;

that the veins of his temples were sticking out and that in

Herschleb's judgment, the volume of Respondent's voice was not

appropriate for a classroom setting.

9. During this brief exchange, Respondent also allegedly

stated, "I'll show you what we're going to do," and turned to his

left. At that point, he saw the principal standing near the door

and asked what he needed. Herschleb explained that the student

wanted to get his backpack. However, the backpack was not

located and both Herschleb and the student left the classroom.

10. Herschleb acknowledged that while he felt the incident

to be totally inappropriate, Respondent used no name calling and

no profanity, and no physical altercation actually occurred.

Herschleb did not testify how close Respondent was to the student

in question and did not explain how he could see veins at

Respondent's temples when Respondent had his back to him.

11. Several students, as well as Respondent, testified

regarding their recollection of the incident. Their testimony

varied greatly, in terms of whether anything out of the ordinary

happened; whether Respondent was speaking louder than normal;

which student, if any, was the subject of Respondent's anger; and

the reason for any action taken by Respondent. Their testimony

was uniform, however, that there was no physical threat to any

student. Further, the incident, to the extent there was one, had

not made a lasting impression on any student in the classroom.

12. Based on the evidence presented, it is found that

Respondent admonished Garrett Holton for speaking in class when

he asked questions of Sarah Sapp, a student sitting next to him,

after Respondent had instructed the class not to talk without

being recognized first. He pointed at Garrett while speaking to

him, but there were no threatening gestures. Respondent did

raise his voice, but was not much louder than usual, especially

when it is taken into account that he was in the process of

passing out document holders and at times had his back to the

class. While Respondent did not feel well and may have been

irritated, he was not angry. Respondent told the student he

would get a referral if he continued to talk.

13. Both the student to whom the comments were directed and

the girl to whom he was speaking ultimately viewed the incident

as not being a "big deal." Garrett Holt testified that while he

was embarrassed initially and did not want to get into trouble,

he did not take it too seriously and did not indicate any

reluctance to return to the class the next day. Sarah thought it

was just a normal day, and teachers yelling in class is "nothing

new." She did not think the incident was a big deal and felt she

and Garrett were treated appropriately and should have waited to

discuss the lesson after Respondent finished talking.

14. The students did not feel threatened and the incident

was not the subject of conversation around the school. No

student or parent complained about the incident. Indeed, one

student testified that the matter had been "blown up into

something that it wasn't," and it wasn't "necessary to go to

court over."

15. Several students considered the day just an ordinary

day. Respondent certainly thought so, and was actually pleased

with the overall progress of his class that day, given the

challenges the computers had presented.

16. After class ended, Respondent saw the backpack that the

student with Herschleb had not been able to find, and loaded it

onto his cart to take it to Herschleb or to the student via the

lost and found.

17. The next morning Respondent saw Herschleb and told him

he had found the backpack. He asked what Herschleb wanted him to

do with it and apologized for not helping more to find the

backpack during class time, making a comment to the effect that

"it shouldn't have happened that way." Herschleb understood his

apology to mean that Respondent recognized that his behavior the

day before as inappropriate.

18. On Wednesday afternoon, August 16, 2006, Herschleb gave

Respondent a letter notifying him of a meeting with the principal

to be held on Friday, August 18, 2006. Respondent did not know

that Herschleb had any concern about his conduct during the

August 15, 2006, sixth period class until Herschleb made the

allegation on Friday, August 18, 2006.

19. During this meeting, Herschleb explained what he had

observed on Tuesday afternoon in Respondent's classroom and why

he was concerned. Respondent denied any wrongdoing. Respondent

was placed on administrative leave with pay so that the matter

could be investigated.

20. The matter was also reported to Joan Longstreth,

Assistant Superintendent for Human Resources for the Alachua

County School Board. An investigator was assigned who obtained

random statements from members of the sixth period class. After

receipt of the administrative investigative report, a committee

was convened to review the report and make a recommendation.

While the committee members discussed the student statements, the

most significant factor in recommending disciplinary action to

the superintendent was the fact that the school principal had

observed the incident.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1), Florida

Statutes.

22. Petitioner is the duly constituted governing body of

the School District of Alachua County. §4, Art. IX, Fla. Const.;

§§ 1001.30 and 1001.33, Fla. Stat. A district school board has

the statutory authority to adopt rules governing personnel

matters pursuant to Sections 1001.42(5), 1012.22(1) and 1012.23,

Florida Statutes (2006).

23. In Florida, the school superintendent has the authority

to make recommendations for dismissal of school board employees,

and the school board has the authority to suspend school board

instructional staff with professional service contracts for "just

cause." §§ 1001.42(5); 1012.22(1)(f); and 1012.33(6)(a), Fla.

Stat. (2006). Just cause is defined to include misconduct in

office. § 1012.33(1)(a), Fla. Stat. (2006). Moreover, Florida

Administrative Code Rule 6B-4.009 identifies the criteria

necessary for suspension or dismissal of instructional personnel.

The Rule provides in pertinent part:

(3) Misconduct in office is defined as a

violation of the Code of Ethics of the

Education Profession as adopted in Rule

6B-1.001, F.A.C., and the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule

6B-1.006, F.A.C., which is so serious as to

impair the individual's effectiveness in the

school system.

24. Petitioner bears the burden to prove the charges

against Respondent by a preponderance of the evidence. Allen v.

School Board of Dade County , 571 So. 2d 568 (Fla. 3d DCA 1990);

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

1990).

25. The Notice of Charges filed against Respondent allege

the following:

2. In the afternoon of Tuesday, August 15,

2006, the second day of the 2006-07 school

year, the Employee addressed one of the

students in his classroom with a barrage of

loud, angry remarks. The employee waved his

hands, pointed, and finally motioned to the

student with both hands, pulling toward his

chest as if challenging the student in a

threatening manner. The student felt

embarrassed and intimidated by the Employee's

voice and demeanor and did not want to return

to the class the next day.

3. Employee's conduct on August 15, 2006,

was unprofessional, improper and prohibited.

The Employee's actions were in the presence

of and witnessed by other students.

4. By his actions Employee has brought

discredit upon himself and the school

district.

26. Based upon these factual allegations, Respondent is

charged with violation of Florida Administrative Code Rules 6B-

1.001(2) and (3); 6B-1.006(3)(a) and (e); School Board Policy

6.52 (Staff Ethics); and School Board Policy 9.10 (Civility).

27. Florida Administrative Code Rule 6B-1.001 is entitled

Code of Ethics of the Education Profession in Florida.

Subsections (2) and (3) of the Rule provide:

(2) The educator'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) Aware 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.

28. Florida Administrative Code Rule 6B-1.006 is entitled

Principles of Professional Conduct for the Education Profession

in Florida. Subsections (3)(a) and (e) provide:

(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.

* * *

(e) Shall not intentionally expose a student

to unnecessary embarrassment or

disparagement.

29. Alachua County School Board Policy 6.52 (Staff Ethics)

provides:

Board members and all Board employees shall

abide by the Code of Ethics of the Education

Profession in Florida (Rule 6B-1.001, FAC)

and the Principles of Professional Conduct

for the Education Profession in Florida (Rule

6B-1.006, FAC), and shall self-report to the

worksite supervisor and/or the Human

Resources Division within 48 hours:

* any arrests/charges including the abuse

of a child or the sale and/or possession

of a controlled substance; and

* any conviction, finding of guilt,

withholding of adjudication, commitment

to a pre-trial diversion program

or entering of a plea of guilty or

nolo contendere for any criminal offense

other than a minor traffic violation.

30. Alachua County School Board Policy 9.10 is entitled

Civility - Conduct of District Employees, Parents, and Other

Visitors to Schools and School District Facilities. Relevant

portions of Policy 9.10 provide:

It is the intent of the School Board to

promote mutual respect, civility, and orderly

conduct among district employees, parents and

the public. It is not the intent of the

School Board, however, to deprive any person

of his or her right to freedom of expression.

The intent of this policy is to maintain to

the greatest extent reasonably possible, a

safe, harassment-free workplace for teachers,

administrators, other staff, and for parents

and other members of the community. In the

interest of presenting teachers and other

employees as positive role models, the School

Board encourages positive communication and

discourages disruptive, volatile, hostile, or

aggressive communications or actions.

1. Expected Level of Behavior:

a. School and school district personnel

will treat parents and other members

of the public with courtesy and

respect.

b. Parents and other visitors to schools

and school district facilities will

treat teachers, school

administrators, other school staff,

and district employees with courtesy

and respect.

c. School Board employees will treat

each other with courtesy and

respect.

2. Unacceptable/Disruptive Behavior

(Disruptive behavior includes, but is not

necessarily limited to):

a. Exhibiting behavior which interferes

with or threatens to interfere with

the operation of a classroom or

school-related off-campus activity,

an employee's office or office area,

areas of a school or facility open

to parents/guardians and the general

public and areas of a school or

facility which are not open to

parents/guardians and the general

public.

b. Using loud and/or offensive or

demeaning language, swearing,

cursing, profanity, or disruptive

display of temper.

* * *

e. Any other behavior which disrupts

the orderly operation of school,

school classroom, or any other

School Board facility.

31. Petitioner has failed to sustain the charges against

Respondent in this case.

32. The evidence, taken as a whole, demonstrated that

Respondent raised his voice and admonished a student for talking

out of turn. He did not threaten the student, did not use

profanity, did not belittle the student and took no physical

action toward the student. He did not subject the student to a

"barrage of loud, angry remarks," and did not wave his hands or

motion to the student with both hands, pulling toward his chest

in a threatening manner, as alleged in the Notice of Charges.

33. Petitioner has not explained how the evidence presented

would establish a violation of Florida Administrative Code Rule

6B-1.001(2) or (3), and the evidence presented simply did not

demonstrate such a violation. Respondent was intent on

developing the students' skills in his computer class despite

some technical difficulties. Respondent did not engage in any

unethical behavior.

34. Likewise, no violation of Florida Administrative Code

Rule 6B-1.006 has been shown. This rule has been described by

the First District Court of Appeal as "aspirational." MacMillan

v. Nassau County School Board , 629 So. 2d 226, 228 (Fla. 1st DCA

1993). Subsection (3)(a) requires a teacher to make reasonable

effort to protect students from conditions harmful to the

students' learning and/or to the students' mental health,

physical health or safety. At no time was the mental or physical

health, or safety of any student at risk during the 15-30 seconds

that the principal observed Respondent's classroom. To the

contrary, the students were engaged in the behavior typical of a

classroom in the early days of school. Moreover, Respondent was

actively seeking to maintain a learning environmental by

admonishing a student not to disrupt the class. That Principal

Herschleb chose to leave the classroom with Respondent in charge

immediately after witnessing the so-called incident demonstrates

that no danger to students existed.

35. With respect to Rule 6B-1.006(3)(e), the Petitioner

must demonstrate that Respondent made a conscious decision not to

comply with the rule. MacMillan , 629 So. 2d at 228; Langston v.

Jamerson , 653 So. 2d 489, 491 (Fla. 1st DCA 1995). No such

evidence has been presented here. Therefore, no violation of

this rule has been proven.

36. Alachua County School Board Policy 6.52 requires

compliance with Rules 6B-1.001 and 6B-1.006. It also requires

self-reporting for certain conduct not remotely relevant to this

case. Inasmuch as Petitioner has failed to demonstrate violation

of the rules identified above, no violation of Policy 6.52 has

been shown.

37. Finally, Petitioner charges Respondent with Alachua

County School Board Policy 9.10, which attempts to codify a

spirit of civility and respect among school board staff.

Petitioner has not specified what portion of Policy 9.10 is

relevant to these proceedings, but has in its Proposed

Recommended Order quoted Sections 2.a., b., and e., which

describe "Unacceptable/Disruptive Behavior." The evidence at

hearing did not show that Respondent exhibited behavior that

interfered with or threatened to interfere with the operation of

a classroom or any other area identified in Section 2.a.

38. Compelling evidence indicated that Respondent did not

use offensive or demeaning language, swearing, cursing,

profanity, or a disruptive display of temper. While Respondent

clearly raised his voice, the greater weight of the evidence

showed that he did so because of his hearing impairment and the

competing noises in the classroom, and to get the attention of a

student who was talking out of turn. No violation of Section

2.b. of Policy 9.10 has been proven.

39. Likewise, Petitioner has not demonstrated that

Respondent engaged in any other behavior that disrupted the

orderly operation of school, school classroom, or any other

School Board facility. After Respondent admonished the student

in his sixth period class, the students completed the assigned

work and Respondent was pleased with the result. There was no

credible evidence to show that the orderly operation of the

classroom was compromised. No violation of Section 2.e. of

Policy 9.10 has been proven.

40. Finally in order to warrant the suspension sought by

Petitioner, it must be demonstrated that the alleged rule

violations were so serious as to impair the Respondent's

effectiveness in the school system. Not only has no violation

been proven, but there is absolutely no indication that this

incident has undermined Respondent's effectiveness. 1/ There was

some limited, casual discussion of the exchange between Garrett

Holton and Respondent on the day it occurred. After that, it

appeared to be forgotten until subpoenas were issued for this

hearing. It was not a matter of discussion among students or

staff and did not result in any student, including Garrett

Holton, attempting to drop the class. As one student aptly

stated, it was not worth going to court for.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That a final order be entered dismissing all charges against

Respondent.

DONE AND ENTERED this 5th day of February, 2007, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

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 5th of February, 2005.

ENDNOTE

1/ There was testimony of prior discipline involving Respondent

in order to justify progressive punishment for this incident.

Likewise, a prior final order by the Florida Education Practices

Commission against Respondent accepting a Settlement Agreement in

Case No. 03-0376-RT, and the results of an administrative

investigation and stipulated discipline in 2005 involving a

separate incident that has been forwarded to the Education

Practices Commission. However, all of the testimony regarding the

2005 incident was hearsay and beyond the scope of the allegations

in this case. Likewise, the exhibits related to Respondent's

disciplinary history were admitted solely for the purpose of

penalty, should a violation be found. While these exhibits might

also be indicative of the School Board's motive for bringing

action in this case, they were not admitted for that purpose

and were not considered in determining whether the conduct in

the Notice of Charges served as a basis for finding the asserted

violations.

COPIES FURNISHED:

Thomas L. Wittmer, Esquire

Alachua County School Board

620 East University Avenue

Gainesville, Florida 32601

Emily Moore, Esquire

Florida Education Association

118 North Monroe Street

Tallahassee, Florida 32301

W. Daniel Boyd, Jr., Superintendent

Alachua County School Board

620 East University Avenue

Gainesville, Florida 32601

John Winn, Commissioner

Department of Education

1514 Turlington Building

325 West Gaines Street

Tallahassee, Florida 32399-0400

Daniel Woodring, General Counsel

Department of Education

1244 Turlington Building

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.