07-005125TTS Palm Beach County School Board vs. Daniel Presmy Status: Closed Recommended Order on Monday, August 11, 2008.

Summary: Petitioner failed to demonstrate just cause for termination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 07-5125

)

DANIEL PRESMY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on

May 13, 2008, in West Palm Beach, Florida, before Administrative

Law Judge June C. McKinney of the Division of Administrative

Hearings, pursuant to the authority set forth in Sections 120.569

and 120.57(1), Florida Statutes. 1

APPEARANCES

For Petitioner: Sonia Elizabeth Hill-Howard, Esquire

Corey M. Smith, Esquire

3318 Forest Hill Boulevard, Suite C-302

Post Office Box 19239

West Palm Beach, Florida 33416-9239

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

Robert Anderson, Esquire

Johnson, Haynes & Miller, P.A.

241 Country Club Road, Suite 1105

Lake Mary, Florida 32746

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, Daniel Presmy,

committed the violations alleged in the Recommendation for

Suspension and Termination for Employment, and if so, what

disciplinary action should be taken against him.

PRELIMINARY STATEMENT

By letter dated October 4, 2007, Respondent was notified

that the Superintendent of Schools for Palm Beach County was

recommending termination of his employment. At its scheduled

meeting of October 24, 2007, the School Board took action to

suspend Respondent without pay from his teaching position and

initiate dismissal proceedings against him from all employment

with Palm Beach County Public Schools.

Respondent elected to dispute the reasons for his dismissal

stemming from the student incident that occurred at Roosevelt

Elementary School (Roosevelt) on December 11, 2006. Because he

requested a formal proceeding, the matter was referred to the

Division of Administrative Hearings.

The charges filed against Respondent surrounding the

December 11, 2006, incident charged Respondent with inappropriate

physical contact with a student in violation of School Board

Policies 0.01, 1.013 and 3.12, and State Board of Education Rules

6B-1.001 and 6B-1.006.

At hearing, Petitioner presented the testimony of Kenyetta

Haywood, Director of Employee Relations; Renita Price, Officer

with the School Board; Daniel Presmy; Robert Walton, Detective

with the School Board; and Patricia Seabrook, School Treasurer

and Back-up Nurse. Petitioner's Exhibits numbered 1 through 15,

17 through 24, and 26 were admitted into evidence. Respondent

testified on his own behalf. Respondent admitted no exhibits

into evidence. The Collective Bargaining Agreement between the

School Board of Palm Beach County, Florida and the Palm Beach

County Classroom Teachers Association was admitted into evidence

as the parties' Joint Exhibit.

The proceedings were transcribed and the parties availed

themselves of the right to submit proposed recommended orders

after the filing of the transcript. The Transcript of the final

hearing was filed with the Division of Administrative Hearings on

June 23, 2008. Both Petitioner and Respondent filed timely

Proposed Recommended Orders, which have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Daniel Presmy (hereinafter "Presmy" or "Respondent") has

been a teacher for six years with Palm Beach County School Board

(hereinafter "School Board"). He has always taught elementary

students.

2. Presmy has had no prior disciplinary action taken

against him by the Superintendent of Palm Beach County School

Board or the School Board.

3. Presmy was a certified teacher in the School Board of

Palm Beach County.

4. On December 11, 2006, while in his classroom Presmy was

teaching his third-grade class, and three students who were not

students in his classroom showed up and disrupted the class.

Presmy requested that the students leave his room. The students

did not leave upon the initial request. One student informed

Presmy that a student in the class had his eraser. Presmy then

asked his class who had the eraser. Subsequently, an eraser flew

to the front of the classroom and fell on the floor. Presmy

picked up the eraser and handed the eraser to the student who had

requested it.

5. Presmy turned back to his class and was hit on the

temple with the eraser. Presmy turned back around toward the

student who he had given the eraser to and the student raised his

hand. Again, Presmy told the student to leave. The student

continued to stand in the middle of the doorway to Presmy's

classroom and would not leave.

6. While Presmy remained in his classroom, he used his

fingertips to push the student's head and told the student

(hereinafter "student victim") to "leave and don't come back

here." Presmy "didn't think that [he] was doing anything wrong

by telling him to leave with a gesture to leave."

7. Presmy's reaction of touching the student was

inappropriate. However, no evidence was demonstrated that the

student was hurt during the incident.

8. Presmy did not press the buzzer or contact and ask for

any assistance regarding the incident because he didn't think it

was necessary.

9. On December 11, 2006, Officer Price was paged regarding

the incident and she returned the call. She was informed that a

student reported that he had been hit by a teacher at Roosevelt.

10. Price interviewed the student victim and witnesses

regarding the incident with Presmy.

11. The School Board initiated an investigation into the

incident. During the investigation, Respondent met with

Detective Walton. Presmy told the investigator that he pushed

the student victim in the head and told him to leave. 2

12. The investigator concluded his investigation and

presented the case to the State Attorney’s Office for review. As

a result, Daniel Presmy was criminally charged with Battery as a

violation of Florida Statutes.

13. On August 2, 2007, Presmy pled guilty to the battery

charge as a negotiated plea agreement so as not to put himself

and his family through a lengthy trial and under the advice of

his lawyer. His sentence was 45 hours community service, 12

weeks of anger management, 12 months of probation with early

termination after six months and a $595 court fee.

14. Petitioner alleges Respondent, by his conduct, violated

School Board Policies 0.01, 1.013 and 3.12, and State Board of

Education Rules 6B-1.001 and 6B-1.006.

15. Subsequently, the School Board of West Palm Beach

County at a meeting on October 24, 2007, voted to suspend Presmy

without pay effective October 25, 2007, and initiated dismissal

proceedings.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2008).

17. Petitioner has the burden of proving that it has just

cause to terminate the Respondent's employment as a classroom

teacher.

18. 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 Board 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 shall be paid. (Emphasis supplied.)

19. In this matter, The Collective Bargaining Agreement

mandates that Petitioner's burden to prove the charges against

Respondent must be made by clear and convincing evidence rather

than by the preponderance of the evidence, which is usually the

burden in such cases.

20. Regarding the standard of proof, in Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the Court of

Appeal, Fourth Board, canvassed the cases to develop a "workable

definition of clear and convincing evidence" and found that of

necessity such a definition would need to contain "both

qualitative and quantitative standards." The court held that:

clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify

must be distinctly remembered; the testimony

must be precise and explicit and the

witnesses must be lacking in confusion as to

the facts in issue. The evidence must be of

such weight that it produces in the mind of

the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established. Id.

21. In its Recommendation for Suspension and Termination

from Employment, the School Board advanced the following

allegations for dismissing Presmy: violation of School Board

Policies 0.01, 1.013, and 3.12, and State Board of Education

Rules 6B-1.001 and 6B-1.006. The School Board bases the

termination of employment by alleging Presmy had inappropriate

physical contact with a student.

22. As to Presmy's conduct, the School Board failed to

point out in its Proposed Recommended Order which specific

provisions of policies and rules Presmy's conduct violated.

Therefore, those policies and rules that might have application

in the instant case as listed in the Recommendation for

Suspension and Termination from Employment are discussed.

23. Policy 0.01(2)(c) Commitment to the Student, Principle

1 provides in pertinent part:

(2)(c) Shall make reasonable effort to

protect the student from conditions harmful

to learning or to health and safety.

24. The evidence is insufficient to persuade the

undersigned that Presmy's conduct, pushing the disruptive student

victim's head out of the classroom with his fingertips, was

intended, or reasonably would be expected to cause harm. No

evidence of injury was presented. 3 Therefore, the greater weight

of the evidence fails to establish Presmy violated the Commitment

to the Student policy.

25. Policy 1.013 Responsibilities of School Board Personnel

and Staff provides in pertinent part:

1. It shall be the responsibility of the

personnel employed by the Board school board

to carry out their assigned duties in

accordance with federal laws, rules, state

statutes, state board of education rules,

school board policy, superintendent's

administrative directives and local school

and area rules.

* * *

4. Teachers. It shall be the duty of the

teacher to provide instruction, leadership,

classroom management and guidance to pupils

through democratic experiences that promote

growth and development both as individuals

and as members of society. Pursuant to §

231.09, F.S., teachers shall perform duties

prescribed by school board policies

relating, but not limited, to helping

students master challenging standards and

meet all state and local requirements for

achievement; teaching efficiently and

faithfully; using prescribed materials and

methods, including technology-based

instruction; recordkeeping; and fulfilling

the terms of any contract, unless released

from the contract by the school board.

26. The evidence establishes that Presmy made every effort

to carry out his teaching duties and manage his classroom so that

he could continue with instruction even with the student victim

continuously disrupting the class. Therefore, the School Board

failed to establish that Presmy violated the offense of

Responsibilities of the School Board Personnel and Staff.

27. Policy 3.12 Criminal Background Checks provides in

pertinent part:

Definitions: For the purposes of this

policy:

* * *

b. "Conviction" means a determination of

guilt that is the result of a plea or a

trial regardless of whether adjudication is

withheld.

* * *

3. A prospective or current employee may

be disqualified or may be terminated from

continued employment if the prospective or

current employee has been convicted of a

crime classified as a felony or first degree

misdemeanor directly related to the position

of employment sought or convicted of a crime

involving moral turpitude or any of the

offenses enumerated in Chapter 435, Florida

Statutes.

28. Presmy's battery conviction clearly falls within the

definition of the policy. However, Florida law recognizes that

a criminal conviction based on a plea of guilty is not legally

sufficient to prove the facts on which the offense was based.

Williams v. Castor , 613 So. 2d 97 (Fla 1st DCA 1993); State v.

Dubose, 152 Fla. 304, 11 So. 2d 477 (1943). Therefore, the

battery conviction in and of itself is not sufficient to justify

termination of Presmy's employment.

29. And, although Presmy inappropriately touched a student

who was disrupting his class, Policy 3.12 does not mandate that a

current employee be terminated if the current employee has been

convicted of a first degree misdemeanor. The policy provides

discretion for the punishment with the word "may."

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

Code of Ethics of the Education Profession in Florida and

provides in pertinent part:

(1) The educator values the worth and

dignity of every person, the pursuit 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 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.

* * *

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

Principles of Professional Conduct for the Education Profession

in Florida and provides in pertinent part:

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

(2) Violation of any of these principles

shall subject the individual to 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.

* * *

(e) Shall not intentionally expose a

student to unnecessary embarrassment or

disparagement.

* * *

(f) Shall not intentionally violate or

deny a student's legal rights.

32. There is no evidence that Presmy's physical contact

with the student in any way impaired his effectiveness in the

school system. Further, no evidence was provided that Presmy

embarrassed or disparaged the student. Therefore, the greater

weight of the evidence fails to establish Presmy violated either

the Code of Ethics or Principle of Professional Conduct.

33. The School Board failed to establish the essential

elements of the School Board's rules. The evidence adduced in

support of the School Board's allegations fails to meet the

exacting "clear and convincing" standard. Thus, Petitioner has

failed to sustain all the aforementioned charges except Policy

3.12 as grounds for termination against Respondent in this case.

Due to this dispositive failure of proof, it is not necessary to

render additional conclusions of law regarding such offenses.

34. Presmy’s act of inappropriate student touching, which

lead to his conviction has to be looked at under The Collective

Bargaining Agreement. It mandates that "Except in cases which

clearly constitute a real and immediate danger to the Board or

the actions/inactions of the employee constitute such clearly

flagrant and purposeful violations of reasonable school rules and

regulations, progressive discipline shall be administered. . . ."

35. Applying such a standard in the instant case, Presmy

has no prior disciplinary action in his six-year tenure with the

School Board. The undersigned has no doubt, Presmy should not

have touched the student. However, his act was neither violent

nor threatening. Thus, the record is void of evidence to

demonstrate that Respondent posed a real or immediate danger to

the Board.

36. Additionally, Presmy's reaction of pushing the child

victim out of his doorway with his fingertips to stop the

classroom disruption does not rise to the level of flagrant and

purposeful. As a result, the discipline of termination is

inappropriate under the progressive disciplinary policy of the

Collective Bargaining Agreement. And, as noted earlier Policy

3.12 allows discretion regarding discipline for Presmy's

conviction within the parameters of progressive discipline under

The Collective Bargaining Agreement.

RECOMMENDATION

Upon consideration of the Findings of Fact and the

Conclusions of Law reached, it is

RECOMMENDED that Palm Beach County School Board find Presmy

had inappropriate physical contact with a student but apply the

progressive disciplinary policy to determine his punishment.

DONE AND ENTERED this 11th day of August, 2008, in

Tallahassee, Leon County, Florida.

S

JUNE C. McKINNEY

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 11th day of August, 2008.

ENDNOTES

1/ Unless otherwise indicated, citations to the Florida Statutes

refer to the 2007 Florida Statutes.

2/ Presmy was the only witness with personal knowledge of the

incident who testified at hearing. In lieu of firsthand

evidence, the School Board offered mostly hearsay evidence,

including the uncertified transcript from Detective Walton.

Thus, Presmy's testimony is deemed to be more credible to the

fact-finder.

3/ The testimony of the back-up nurse that she provided ice to

the student victim is rejected as competent evidence of injury.

The School Board failed to make a time connection between the

incident and the nurse providing ice. Moreover, no other

evidence was provided to demonstrate such a proposition.

COPIES FURNISHED :

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

Sonia Elizabeth Hill-Howard, Esquire

Palm Beach County School Board

3318 Forest Hill Boulevard, C-302

Post Office Box 19239

West Palm Beach, Florida 33416-9239

Robert Anderson, Esquire

Johnson, Haynes & Miller, P.A.

241 Country Club Road, Suite 1105

Lake Mary, Florida 32746

Dr. Arthur C. Johnson, Superintendent

Palm Beach County School Board

3340 Forest Hill Boulevard, C-316

West Palm Beach, Florida 33416-5869

Dr. Eric. J. Smith

Commissioner of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel

Department of Education

Turlington 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.