08-002680 Miami-Dade County School Board vs. Maritza Wagensommer Status: Closed Recommended Order on Tuesday, December 16, 2008.

Summary: Petitioner had just cause to dismiss teacher who used impermissible means to control student behavior, despite having had received supervisory warnings not to employ such tactics.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 08-2680

)

MARITZA WAGENSOMMER, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case

pursuant to Sections 120.569 and 120.57(1), Florida Statutes, 1

before Stuart M. Lerner, a duly-designated administrative law

judge of the Division of Administrative Hearings (DOAH), on

October 17, 2008, by video teleconference at sites in Miami and

Tallahassee, Florida.

APPEARANCES

For Petitioner: Janeen Richard, Esquire

Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

STATEMENT OF THE ISSUE

Whether Respondent committed the violations alleged in the

Notice of Specific Charges and, if so, what disciplinary action

should be taken against her.

PRELIMINARY STATEMENT

By letter dated May 22, 2008, Respondent was notified that

the Miami-Dade County School Board (School Board), at its May

21, 2008, meeting, had taken action to suspend her without pay

from her teaching position and initiate dismissal proceedings

against her. Respondent subsequently "request[ed] a hearing to

be held before an administrative law judge" on the matter.

Respondent's hearing request was referred to DOAH on June 6,

2008.

On September 30, 2008, the School Board filed a Notice of

Specific Charges (Notice). The Notice contained the following

Statement of Facts:

Statement of Facts

7. At all times material hereto, Petitioner

employed Respondent as a Teacher pursuant to

a professional service contract. Respondent

was assigned to Palm Springs Middle School.

8. In 1992, an allegation was made that

Respondent taped two students' mouths shut.

The Allegation was referred to M-DCPS

Special Investigation Unit for investigation

(Case No. 92-0946). The allegations were

substantiated. As a result, Respondent

received a written reprimand with clear

directives to refrain from demeaning

students or punishing them by taping their

mouths. In addition, Respondent was

directed to conduct herself in a

professional manner at all times.

9. In 1995, an allegation was made that

Respondent hit a student with a stack of

papers (Case No. 95-12689). The school

principal investigated this allegation, as

an Administrative Review, and substantiated

the allegation that Respondent

inappropriately disciplined a student.

Respondent was directed once again to

refrain from touching or tapping students as

a form of discipline and to conduct herself

in a professional manner.

10. In December of 2003, an allegation was

made that Respondent pulled a student's hair

(Case No. J08655). The allegation was

substantiated as a violation of Board Rule

6Gx13- 5D-1.07 Corporal Punishment-

Prohibited. Respondent received a letter of

reprimand. For the third time, Respondent

was directed to refrain from using any

physical means to affect student behavior.

11. On about November 8, 2004, John L.

Winn, the Florida Commissioner of Education,

filed against Respondent an Administrative

Complaint with the Education Practices

Commission ("EPC") alleging that Respondent

had "inappropriately disciplined . . .

A. G., a 13-year-old female student by

pulling A. G. by the hair and jerking her

head back. Thereafter, Respondent attempted

to inappropriately influence the testimony

of student witnesses."

12. Respondent entered into a settlement

agreement whereby she agreed to the issuance

of [a] formal reprimand. The EPC accepted

the settlement and Respondent was

reprimanded.

13. During the 2007-2008 school year,

allegations were made that Respondent pushed

and grabbed students, threatened them, and

forced them to stand for [an] extended

period of time with book bags on their

heads. Respondent was notified of the

allegations and was assigned to an alternate

location at the Region office pending the

investigation of the matter.

14. The allegation was assigned to School

Police for investigation (SPAR Case No.

N-85085). After interviewing several

witnesses including Respondent the police

detective found probable cause that

Respondent violated School Board Rule 6Gx13-

5D-1.07 , Corporal Punishment-Prohibited.

15. On about February 6, 2008, a

conference-for-the-record was held with

Respondent in the Office of Professional

Standards ("OPS") to address the

investigative findings and her future

employment with M-DCPS. After consulting

with several administrators, OPS recommended

to terminate Respondent's employment.

16. On or about April 2, 2008, Respondent

was advised of the recommended disciplinary

action and of her right to seek final review

by the Superintendent or his designee.

17. On or about May 7, 2008, Respondent was

notified by letter that the Superintendent

of Schools was recommending to the School

Board to suspend her without pay and

initiate dismissal proceedings. The letter

further notified Respondent the reasons for

the recommendation included, but was not

limited to, misconduct in office [and]

violations of School Board Rules 6Gx13- 5D-

1.07 , Corporal Punishment-Prohibited and

6Gx-13- 4A-1.21 , Responsibilities and Duties.

18. Petitioner, at its regularly scheduled

meeting on May 21, 2008, took action to

suspend Respondent without pay and initiate

dismissal proceedings for just cause

including, but not limited to misconduct in

office and violations of those School Board

Rules set forth above. Respondent was

notified of the Board action by letter dated

May 22, 2008.

There were four counts set forth in the Notice: Count I,

alleging "misconduct in office," as defined in Florida

Administrative Code Rule 6B-4.009(3); Count II, alleging a

violation of the School Board's "policy on corporal punishment"

set forth in School Board Rule 6Gx13-5D-1.07 ; Count III,

alleging a violation of School Board Rule 6Gx13-4A-1.21 , which

describes the "responsibilities and duties" of School Board

employees; and Count IV, alleging "gross insubordination" by the

"continued failure to comply with administrative directives

regarding appropriate behavior" and the "repeated failure to

comply with School Board policies and procedures."

The final hearing in the instant case was held, as noted

above, on October 17, 2008. Nineteen witnesses testified at the

hearing: Student Y. L., Parent L. S., Student J. T., Student

I. M., Detective Steven Hadley, Cortnye Arce, Niki Ruiz, Melissa

Wolin, Jennifer Andreu, Milagros Hernandez, Respondent, Jose

Fernandez, Maria Delgado de Perez, Jose Macios, Varinia Asencio,

Student E. R., Student I. R., Student A. V., and Student E. V.

In addition, 29 exhibits (Petitioner's Exhibits 1 through 29)

were offered and received into evidence. At the close of the

evidentiary portion of the hearing on October 17, 2008, the

undersigned established a deadline (30 days from the date of the

filing of the hearing transcript with DOAH) for the filing of

proposed recommended orders.

The Transcript of the final hearing (which consists of two

volumes) was filed with DOAH on November 7, 2008.

The School Board and Respondent both filed their Proposed

Recommended Orders on December 8, 2008.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as

a whole, the following findings of fact are made:

1. The School Board is responsible for the operation,

control and supervision of all public schools (grades K through

12) in Miami-Dade County, Florida (including, among others,

Phillis Wheatley Elementary School (Phillis Wheatley) and Palm

Springs Middle School (Palm Springs)), and for otherwise

providing public instruction to school-aged children in the

county.

2. Respondent is now, and has been since October 1987,

employed as a classroom teacher by the School Board. She holds

a professional services contract.

3. Respondent first taught for the School Board at Phillis

Wheatley. In 1996, she moved to Palm Springs, where she

remained until she was "assigned to a paid administrative

placement at [the] Region Center I [effective October 4, 2007]

pending the resolution of investigative case # N-85085"

(referenced in paragraph 14 of the Notice of Specific Charges).

4. Respondent has previously been disciplined by the

School Board for using physical means to control student

behavior.

5. In 1992, following an investigation during which

Respondent "admitted to placing tape on one student's mouth and

telling the other to place the tape on his mouth" and "also

admitted to hitting a student on the head with a dictionary and

tapping another student on the hand with a ruler," she received

the following "letter of reprimand" from her principal at

Phillis Wheatley:

On August 8, 1992, you were charged with

conduct unbecoming a School Board employee

and battery of students.

You violated the Chapter 6B-1.01(3), Code of

Ethics of the Education Profession in

Florida, and Dade County School Board Rule

6Gx-13-4A-1.21, "Conduct Unbecoming a School

Board Employee." The above infractions were

substantiated by the Special Investigative

Unit, Case No. 92-00946.

You are directed to comply with the

procedures outlined in the Chapter 6B-

1.01(3), Code of Ethics of the Education

Profess[ion] in Florida, to refrain from

demeaning students, punishing them by taping

mouths, touching or taping students to

discipline them or to demonstrate affection,

and to conduct yourself in a professional

manner.

Any recurrence of the infractions will

result in further disciplinary actions.

6. In 1995, Respondent was reprimanded for striking a

student with a stack of papers and received the following

"Confirmation of Administrative Action" from the Phillis

Wheatley principal:

Please be advised that after a complete

investigation of Case Number 95-12689 done

by this administrator the following

guidelines must be reviewed with this

administrator.

1. Review the faculty handbook pg 18, on

Corporal Punishment.

2. Review a copy of School Board Rule

6Gx4A-1.21, Employee Conduct, and Chapter

6B-1.01(3), Code of Ethics of the Education

Profession in Florida.

3. You are to refrain from touching or

tapping students to discipline them and you

must conduct yourself in a professional

manner at all times.

Any recurrence of this infraction will

result in further disciplinary action.

7. In 2004, after determining that Respondent had "acted

inappropriately" when, in anger, she had "grabbed" a student by

the "hair yanking [the student's] head backwards," the Palm

Springs principal issued Respondent the following written

reprimand:

On December 11, 2003, you inappropriately

disciplined (a) student(s) while waiting in

front of the cafeteria.

You violated the Contract between the Miami-

Dade County Public Schools and the United

Teachers of Dade , Article VIII, Section 1.

[a]s well as School and Miami-Dade County

School Board Rules, 6Gx13-5D-1.07 , Corporal

Punishment, and 6Gx13-5D-1.08 , Code of

Student Conduct.

It is your responsibility as a classroom

teacher to maintain control and discipline

of students. However, it is imperative that

you follow school and Miami-Dade County

School Board rules in doing so. Rules

governing student discipline a[re] outlined

in the Code of Student Conduct, Board Rule

6Gx13-5D-1.08 , faculty handbook, and

Promoting and Maintain[ing] a Safe Learning

Environment document, and are referenced in

the United Teachers of Dade Contract,

Article VII, Section I.

You are directed immediately to refrain from

using any physical means to affect student

behavior.

You are directed immediately to implement

the appropriate procedures for dealing with

inappropriate student behavior as stipulated

in the documents above[].

The above infraction was substantiated by an

Administrative Review, Case Number J08655 .

You are directed to refrain from using

inappropriate procedures in the performance

of your assigned duties. You are directed

to implement immediately, approved

procedures in the performance of your

assigned duties.

Any recurrences of the above infraction will

result in further disciplinary action.

8. As a School Board employee, Respondent is expected to

conduct herself in accordance with School Board rules, including

the aforementioned School Board Rules 6Gx13-4A-1.21 and 6Gx13-

5D-1.07 .

9. At all times material to the instant case, School Board

Rule 6Gx13-4A-1.21 I has provided as follows:

Permanent Personnel

RESPONSIBILITIES AND DUTIES

Employee Conduct

All persons employed by The School Board of

Miami-Dade County, Florida are

representatives of the Miami-Dade County

Public Schools. As such, they are expected

to conduct themselves, both in their

employment and in the community, in a manner

that will reflect credit upon themselves and

the school system.

Unseemly conduct or the use of abusive

and/or profane language in the presence of

students is expressly prohibited.

10. At all times material to the instant case, School

Board Rule 6Gx13-5D-1.07 has provided, in pertinent part, as

follows:

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 addition, suspensions and/or expulsions

are available as administrative disciplinary

action depending upon the severity of the

misconduct. Procedures are in place for

students to make up any work missed while on

suspension, or to participate in an

alternative program if recommended for

expulsion.

11. As an instructional employee of the School Board,

Respondent is a member of a collective bargaining unit

represented by the United Teachers of Dade (UTD) and covered by

a collective bargaining agreement between the School Board and

UTD (UTD Contract).

12. Article V of the UTD Contract addresses the subject of

"[e]mployer [r]ights."

13. Section 1 of Article V provides, in part, that the

School Board has the exclusive right to suspend, dismiss or

terminate bargaining unit employees "for just cause."

14. Article VIII of the UTD Contract addresses the subject

of "[s]afe learning environment."

15. Section 1.D. of Article VIII provides as follows:

The parties recognize the potential for

difficult circumstances and problems related

to the use of corporal punishment.

Accordingly, the parties agree that such

punishment shall be prohibited as a

disciplinary option, and further agree to

act affirmatively in continuing to identify

and implement more effective alternatives

for dealing with student behavior. The

involvement of school-site personnel in

developing such alternatives is critical to

their potential for success.

16. Article XXI of the UTD Contract addresses the subject

of "[e]mployee [r]ights and [d]ue [p]rocess."

17. Section 1.B.1.a. of Article XXI provides that "[a]ny

member of the instructional staff may be suspended or dismissed

at any time during the school year, provided that the charges

against him/her are based upon Florida Statutes."

18. Section 1.B.2. of Article XXI provides, in part, that

"[d]ismissals and suspensions shall be effected in accordance

with applicable Florida Statutes, including the Administrative

Procedures Act (APA) . . . ."

19. In the instant case, the School Board is seeking to

dismiss Respondent based on conduct in which she allegedly

engaged during the 2007-2008 school year.

20. While assigned to Palm Springs during the 2007-2008

school year, Respondent taught three periods of language arts to

sixth and seventh grade Spanish-speaking ESOL students. She

also had responsibility for a sixth grade homeroom class.

21. Y. L., J. T., and I. M. were sixth grade students at

Palm Springs during the 2007-2008 school year. They each had

Respondent for homeroom and language arts for a brief time

during the beginning of that school year.

22. At all material times during the 2007-2008 school

year, Respondent understood that the School Board had a policy

"strictly prohibit[ing]" the use of corporal punishment.

23. Nonetheless, on more than one occasion during this

time period, Respondent used physical means to redirect Y. L.

She grabbed him by the hair and pulled him by the arm, hurting

him in the process. She also "grabbed other students by their

arms" to control their behavior.

24. Respondent made threats to throw Y. L. and other

students out the window if they did not behave. Although

Respondent had no intention of carrying out these threats, Y. L.

believed that the threats were real and that Respondent meant

what she had said. On one occasion, Respondent opened a window,

had Y. L. stand next to it, and told him that if he moved at

all, she would toss him out the open window.

25. As a disciplinary measure, Respondent had Y. L. pick

up his wheel-equipped book bag (filled with textbooks and

notebooks for all his classes) and hold it on top of his head

for an extended period of time while he was standing in place.

Y. L. felt some discomfort in his shoulder when he did this.

26. Afraid of Respondent, Y. L. often "hid[] in the

bathroom" at school instead of going to Respondent's classroom.

27. On numerous occasions, Y. L.'s mother had to pick him

up from school before the end of the school day because he had

vomited.

28. At home, Y. L. had trouble sleeping and refused to

eat. He lost approximately 20 pounds (going from 100 pounds

down to 80).

29. Y. L. was not the only student that Respondent

directed to stand with a filled book bag on his head. J. T. and

I. M. were also issued such a directive by Respondent. It

happened the first week of the school year on a day when the

students remained in their homeroom classes until dismissal

because of a power outage that left the school without lights

and air conditioning for much of the day.

30. Towards the end of the day (after power had been

restored to the school), J. T. and I. M. were talking to one

another when they were not supposed to. In response to their

transgression, Respondent instructed them to stand in separate

corners of the classroom and hold their book bags (which were

similar to Y. L.'s) on top of their heads. 2 The book bags

remained on their heads for a substantial enough period of time

to cause them to experience pain. 3

31. Y. L., J. T., I. M., and their parents complained to

the Palm Springs administration about Respondent's disciplinary

tactics.

32. In response to Y. L.'s and his mother's complaints,

one of the school's assistant principals, Niki Ruiz, interviewed

"randomly selected" classmates of Y. L.'s. These students

"corroborated what Y. [L.] was saying."

33. On September 26, 2007, the matter was turned over to

the School Board's General Investigative Unit (GIU) for

investigation.

34. Respondent was removed from the classroom and placed

on alternative assignment pending the outcome of the

investigation.

35. Following the GIU investigation, the matter was

referred to the School Board's Office of Professional Standards.

36. There was a conference-for-the-record held on February

6, 2008, at which Respondent had the opportunity to tell her

side of the story. In her remarks, she expressed a disdain for

authority when she said, "I'm very professional but I don't

stick to rules."

37. The School Board's Superintendent of Schools

recommended that the School Board suspend Respondent and

initiate termination proceedings against her.

38. The School Board took such action at its May 21, 2008,

meeting.

CONCLUSIONS OF LAW

39. DOAH has jurisdiction over the subject matter of this

proceeding and of the parties hereto pursuant to Chapter 120,

Florida Statutes.

40. "In accordance with the provisions of s. 4(b) of Art.

IX of the State Constitution, district school boards [have the

authority to] operate, control, and supervise all free public

schools in their respective districts and may exercise any power

except as expressly prohibited by the State Constitution or

general law." § 1001.32(2), Fla. Stat.

41. Such authority extends to personnel matters and

includes the power to suspend and dismiss employees. See §§

1001.42(5), 1012.22(1)(f), and 1012.23(1), Fla. Stat.

42. The latter statutory provision, Section 1012.23(1),

Florida Statutes, grants district school boards the authority to

"adopt rules governing personnel matters."

43. The "rules governing personnel matters" that have been

adopted by the School Board include School Board Rules 6Gx13-4A-

1.21 (dealing with "[r]esponsibilities and [d]uties") and 6Gx13-

5D-1.07 (which prohibits "[c]orporal [p]unishment").

44. A district school board is deemed to be the "public

employer," as that term is used in Chapter 447, Part II, Florida

Statutes, "with respect to all employees of the school

district." § 447.203(2), Fla. Stat. As such, it has the right

"to direct its employees, take disciplinary action for proper

cause, and relieve its employees from duty because of lack of

work or for other legitimate reasons," provided it exercises

these powers in a manner that is consistent with the

requirements of law. § 447.209, Fla. Stat.

45. At all times material to the instant case, district

school boards have had the right, under Section 1012.33, Florida

Statutes, to dismiss professional service contract teachers for

"just cause."

46. At all times material to the instant case, "just

cause," as used Section 1012.33, Florida Statutes, has been

legislatively defined to include, "but . . . not [be] limited

to, the following instances, as defined by rule of the State

Board of Education: immorality, misconduct in office,

incompetency, gross insubordination, willful neglect of duty, or

being convicted or found guilty of, or entering a plea of guilty

to, regardless of adjudication of guilt, any crime involving

moral turpitude." The "but . . . not limited to" language in

the statute makes abundantly clear that the list of things

constituting "just cause" was intended by the Legislature to be

non-exclusive and that other wrongdoing may also constitute

"just cause" for dismissal. See Dietz v. Lee County School

Board , 647 So. 2d 217, 218-19 (Fla. 2d DCA 1994)(Blue, J.,

specially concurring)("We assume that drunkenness and

immorality, which are not included in the non-exclusive list of

sins [set forth in Section 231.36(1)(a), Florida Statutes

(2001), the predecessor of Section 1012.33, Florida Statutes]

constituting just cause, would also be grounds for

dismissal. . . . In amending section 231.36 and creating a new

contract status for teachers (professional service) and by

failing to further define just cause, the legislature gave

school boards broad discretion to determine when a teacher may

be dismissed during the contract term. . . . I agree with the

majority--that the legislature left that determination to the

respective wisdom of each school board by providing no definite

parameters to the term 'just cause.'" 4 ).

47. At all times material to the instant case, "misconduct

in office" has been defined by rule of the State Board of

Education (specifically Florida Administrative Code Rule 6B-

4.009 5 ), as follows:

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, FAC., which is so serious as to

impair the individual's effectiveness in the

school system.

48. The Code of Ethics of the Education Profession (set

forth in Florida Administrative Code Rule 6B-1.001), at all

times material to the instant case, has provided as follows:

(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.

49. The Principles of Professional Conduct for the

Education Profession in Florida (set forth in Florida

Administrative Code Rule 6B-1.006), at all times material to the

instant case, have required a teacher to, among other things,

"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"; "not intentionally expose a

student to unnecessary embarrassment or disparagement"; and "not

intentionally violate or deny a student's legal rights."

50. "Misconduct in office" may be established, even in the

absence of "specific" or "independent" evidence of impairment,

where the conduct engaged in by the teacher is of such a nature

that it "speaks for itself" in terms of its seriousness and its

adverse impact on the teacher's effectiveness. In such cases,

proof that the teacher engaged in the conduct is also proof of

impaired effectiveness. See Purvis v. Marion County School

Board , 766 So. 2d 492, 498 (Fla. 5th DCA 2000); Walker v.

Highlands County School Board , 752 So. 2d 127, 128-29 (Fla. 2d

DCA 2000); Summers v. School Board of Marion County , 666 So. 2d

175, 175-76 (Fla. 5th DCA 1995); Brevard County School Board v.

Jones , No. 06-1033, 2006 Fla. Div. Adm. Hear. LEXIS 287 *17

(Fla. DOAH June 30, 2006)(Recommended Order)("[T]he need to

demonstrate 'impaired effectiveness' is not necessary in

instances where the misconduct by a teacher speaks for itself,

or it can be inferred from the conduct in question."); and

Miami-Dade County School Board v. Lefkowitz , No. 03-0186, 2003

Fla. Div. Adm. Hear. LEXIS 675 *23-24 (Fla. DOAH July 31,

2003)(Recommended Order)("The School Board failed to prove by a

preponderance of the direct evidence that Mr. Lefkowitz's

actions were so serious that they impaired his effectiveness as

a teacher. Nonetheless, based on the findings of fact herein,

it may be inferred that Mr. Lefkowitz's conduct impaired his

effectiveness as a teacher in the Miami-Dade County public

school system.")(citation omitted). Disciplining a student for

talking in class by making him stand in front of his classmates

with a heavy book bag on his head, as Respondent did the instant

case, is an example of such conduct that "speaks for itself."

51. At all times material to the instant case, "gross

insubordination" has been defined by Florida Administrative Code

Rule 6B-4.009 as "a constant or continuing intentional refusal

to obey a direct order, reasonable in nature, and given by and

with proper authority." An isolated act of defiance does not

fall within this definition. See Smith v. School Board of Leon

County , 405 So. 2d 183, 185 (Fla. 1st DCA 1981)("As to the

latter charge, her actions did not meet the definition of 'gross

insubordination' since they were an isolated outburst and could

not have been deemed 'constant or continuing.'").

52. "Under Florida law, a [district] school board's

decision to terminate an employee is one affecting the

employee's substantial interests; therefore, the employee is

entitled to a formal hearing under section 120.57(1) if material

issues of fact are in dispute." 6 Sublett , 617 So. 2d at 377.

53. Where the employee is a professional service contract

teacher, the hearing may be conducted, pursuant to Section

1012.33, Florida Statutes, either by the district school board

itself or by a DOAH administrative law judge (who, following the

hearing, makes a recommendation to the district school board).

54. The teacher must be given written notice of the

specific charges prior to the hearing. Although the notice

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

exactness required of pleadings in court," it should "specify

the [statute,] rule, [regulation, or policy] the [district

school board] alleges has been violated and the conduct which

occasioned [said] violation." Jacker v. School Board of Dade

County , 426 So. 2d 1149, 1151 (Fla. 3d DCA 1983)(Jorgenson, J.,

concurring).

55. The teacher may be suspended without pay pending the

outcome of the termination proceeding; "but, if the charges are

not sustained, the [teacher] shall be immediately reinstated,

and his or her back salary shall be paid." § 1012.33(6)(a),

Fla. Stat.

56. At the termination hearing, the burden is on the

district school board to prove the allegations contained in the

notice. Unless there is a collective bargaining agreement

covering the bargaining unit of which the teacher is a member

that provides otherwise 7 (and there is not such a collective

bargaining agreement controlling the instant case), the district

school board's proof need only meet the preponderance of the

evidence standard. See Cisneros v. School Board of Miami-Dade

County , 990 So. 2d 1179, 1183 (Fla. 3d DCA 2008)("As the ALJ

properly found, the School Board had the burden of proving the

allegations of moral turpitude by a preponderance of the

evidence."); McNeill v. Pinellas County School Board , 678 So. 2d

476, 477 (Fla. 2d DCA 1996)("The School Board bears the burden

of proving, by a preponderance of the evidence, each element of

the charged offense which may warrant dismissal."); Sublett v.

Sumter County School Board , 664 So. 2d 1178, 1179 (Fla. 5th DCA

1995)("We agree with the hearing officer that for the School

Board to demonstrate just cause for termination, it must prove

by a preponderance of the evidence, as required by law, that the

allegations of sexual misconduct were true . . . ."); Allen v.

School Board of Dade County , 571 So. 2d 568, 569 (Fla. 3d DCA

1990)("We . . . find that the hearing officer and the School

Board correctly determined that the appropriate standard of

proof in dismissal proceedings was a preponderance of the

evidence. . . . The instant case does not involve the loss of a

license and, therefore, Allen's losses are adequately protected

by the preponderance of the evidence standard."); and Dileo v.

School Board of Dade County , 569 So. 2d 883, 884 (Fla. 3d DCA

1990)("We disagree that the required quantum of proof in a

teacher dismissal case is clear and convincing evidence, and

hold that the record contains competent and substantial evidence

to support both charges by a preponderance of the evidence

standard.").

57. In determining whether the district school board has

met its burden of proof, it is necessary to evaluate the

district school board's evidentiary presentation in light of the

specific allegation(s) made in the written notice of charges.

Due process prohibits a district school board from terminating a

professional service contract teacher based on matters not

specifically alleged in the notice of charges, unless those

matters have been tried by consent. See Shore Village Property

Owners' Association, Inc. v. Department of Environmental

Protection , 824 So. 2d 208, 210 (Fla. 4th DCA 2002); and Lusskin

v. Agency for Health Care Administration , 731 So. 2d 67, 69

(Fla. 4th DCA 1999).

58. In the instant case, the School Board has alleged in

its Notice that "just cause" exists to terminate Respondent's

employment as a professional service contract teacher with the

School Board because (as alleged in the Notice's thirteenth

numbered paragraph), during the 2007-2008 school year, she

"pushed and grabbed students, threatened them, and forced them

to stand for [an] extended period of time with book bags on

their heads." 8 According to the Notice, by engaging in this

conduct, Respondent committed "misconduct in office," as defined

in Florida Administrative Code Rule 6B-4.009(3) (Count I);

violated the School Board's "policy on corporal punishment" set

forth in School Board Rule 6Gx13-5D-1.07 (Count II); violated

School Board Rule 6Gx13-4A-1.21 , describing the

"responsibilities and duties" of School Board employees (Count

III); and engaged in "gross insubordination" (Count IV).

59. The preponderance of the record evidence establishes

that, during the 2007-2008 school year, in an effort to control

student behavior, Respondent (as alleged in paragraph (13) of

the Notice) "grabbed" a student (Y. L.) by his hair and arm and

"grabbed" other students by their arms; "threatened" to throw

students out the classroom window; and directed students "to

stand for [an] extended period of time with book bags on their

heads"; and that she did so despite having received reprimands

in previous years directing that she cease using these types of

measures to affect the conduct of her students.

60. By dealing with her students in such a manner,

Respondent engaged in the wrongdoing charged in Counts I through

IV of the Notice.

61. Having established that she engaged in this

wrongdoing, the School Board has "just cause," as defined in

Section 1012.33(1)(a), Florida Statutes, to dismiss Respondent

pursuant to Subsection (6)(a) of the statute.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that the School Board issue a final order

sustaining Respondent's suspension and terminating her

employment as a professional service contract teacher with the

School Board for the reasons set forth above

DONE AND ENTERED this 16th day of December, 2008, in

Tallahassee, Leon County, Florida.

S

___________________________________

STUART M. LERNER

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 16th day of December, 2008.

ENDNOTES

1 / Unless otherwise noted, all references in this Recommended

Order to Florida Statutes are to Florida Statutes (2008).

2 / The undersigned rejects, as contrary to the greater weight

of the evidence, Respondent's claim that her "actions toward

I. M. and J. T. were playful [not punitive] in nature" and that

she was merely "joking around with the students about putting

book bags on their heads if they did not stop clowning around."

It is reasonable to assume that, had Respondent not been

serious, she would have immediately attempted to stop the boys

when they started to put the book bags on their heads.

Respondent, however, acknowledged at hearing that she did not

take such action. According to her testimony, her reaction when

she saw J. T. and I. M. with their book bags on their heads was,

not to tell them to put the bags down, but rather to laugh at

them, along with the rest of the class.

3/ Relying on the credible testimony of J. T. and I. M., the

undersigned finds that Y. L. was mistaken when he testified

about his being involved in this incident.

4 / Judge Blue noted in his opinion that the Legislature

provided a "separate standard for dismissal" for continuing

contract teachers which authorized the taking of such action

only "for conduct constituting one of the so-called 'seven

deadly sins': immorality, misconduct in office, incompetency,

gross insubordination, willful neglect of duty, drunkenness, or

conviction of a crime involving moral turpitude." Id. at 218.

5 / Florida Administrative Code Rule 6B-4.009 "define[s]" the

"basis for charges upon which dismissal action against

instructional personnel may be pursued."

6/ "A county school board is a state agency falling within

Chapter 120 for purposes of quasi-judicial administrative

orders." Sublett v. District School Board of Sumter County , 617

So. 2d 374, 377 (Fla. 5th DCA 1993).

7/ Where the district school board, through the collective

bargaining process, has agreed to bear a more demanding

standard, it must honor, and act in accordance with, its

agreement. See Chiles v. United Faculty of Florida , 615 So. 2d

671, 672-73 (Fla. 1993)("Once the executive has negotiated and

the legislature has accepted and funded an agreement [with its

employees' collective bargaining representative], the state and

all its organs are bound by that [collective bargaining

agreement] under the principles of contract law."); Hillsborough

County Governmental Employees Association v. Hillsborough County

Aviation Authority , 522 So. 2d 358, 363 (Fla. 1988)("[W]e hold

that a public employer must implement a ratified collective

bargaining agreement with respect to wages, hours, or terms or

conditions of employment . . . ."); and Palm Beach County School

Board v. Auerbach , No. 96-3683, 1997 Fla. Div. Adm. Hear. LEXIS

5185 *13-14 (Fla. DOAH February 20, 1997)(Recommended

Order)("Long-standing case law establishes that in a teacher

employment discipline case, the school district has the burden

of proving its charges by a preponderance of the evidence. . . .

However, in this case, the district must comply with the terms

of the collective bargaining agreement, which, as found in

paragraph 27, above, requires the more stringent standard of

proof: clear and convincing evidence.").

8 / No allegations of name-calling on Respondent's part were

made in the Notice. Accordingly, contrary to the suggestion

made by the School Board in its Proposed Recommended Order, that

Respondent may have also "called [her students] dumb" cannot

play any role in the outcome of this case.

COPIES FURNISHED:

Janeen Richard, Esquire

Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Mark Herdman, Esquire

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

Alberto M. Carvalho, Superintendent

Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Honorable Dr. Eric J. Smith

Commissioner of Education

Department 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.