08-004126TTS Miami-Dade County School Board vs. Renee Y. Meyers Status: Closed Recommended Order on Thursday, March 5, 2009.

Summary: Respondent, who punched female student in the arm, committed misconduct in office, and a proposed penalty of 15-workday is reasonable.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 08-4126

)

RENEE Y. MEYERS, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

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

on December 9, 2008, by video teleconference, with the parties

appearing in Miami, Florida, before Patricia M. Hart, a duly-

designated Administrative Law Judge of the Division of

Administrative Hearings, who presided in Tallahassee, Florida.

APPEARANCES

For Petitioner: Janeen L. Richard, Esquire

Miami-Dade County School Board

Attorney's Office

1450 Northeast 2nd 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 the Petitioner committed the violations alleged in

the Notice of Specific Charges filed September 2, 2008, and, if

so, the penalty that should be imposed.

PRELIMINARY STATEMENT

In a letter dated August 5, 2008, the Miami-Dade County

School Board ("School Board") notified Renee Y. Meyers that the

School Board, at its August 4, 2008, meeting, had suspended her

without pay for a period of 15 days. No reason for the

suspension was included in the letter. Ms. Meyers timely

requested an administrative hearing, and the School Board

transmitted the matter to the Division of Administrative

Hearings for assignment of an administrative law judge.

Pursuant to notice, the final hearing was held on December 9,

2008.

No reason was given for Ms. Meyers' suspension in the

August 5, 2008, letter, but the School Board filed a Notice of

Specific Charges with the Division of Administrative Hearings on

September 2, 2008, in which it charged Ms. Meyers with

misconduct in office and a violation of School Board Rules

6Gx13- 4A-1.21 , Responsibilities and Duties, and 6Gx13- 4A-1.213 ,

Code of Ethics. The School Board alleged as the factual basis

for the charges that Ms. Meyers had "punched a student on her

upper left arm."

At the final hearing, the School Board presented the

testimony of S.J., Corey Brown, Valmarie Rhoden, and Joyce

Castro; Petitioner's Exhibits 1 through 16 were offered and

received into evidence. Ms. Meyers testified in her own behalf

and presented the testimony of Gertha Whitehead, Valerie

Johnson, and Harry Wayne Hoffman; Respondent's Exhibit 1 was

offered and received into evidence.

The transcript of the proceedings was filed with the

Division of Administrative Hearings on January 5, 2009, and the

parties timely filed proposed findings of fact and conclusions

of law, which have been considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. The School Board is a duly-constituted school board

charged with the duty to operate, control, and supervise all

free public schools within the School District of Miami-Dade

County, Florida. Article IX, Florida Constitution; § 1001.32,

Fla. Stat. (2008). 1 Specifically, the School Board has the

authority to discipline employees. § 1012.22(1)(f), Fla. Stat.

2. Ms. Meyers has been a teacher and guidance counselor

with the School Board for 18 years. At the times pertinent to

this proceeding, she was a guidance counselor at the William H.

Turner Technical Arts High School. Ms. Meyers has had no prior

disciplinary action taken against her.

3. At the times material to this proceeding, Ms. Meyers

was a member of the United Teachers of Dade, which had entered

into a Contract with the School Board, effective July 1, 2006,

through June 30, 2009. Pertinent to this proceeding, Article V,

Section 1 of the Contract provides that the School Board can

terminate, suspend, or dismiss employees only for just cause.

Article XXI, Section 1.a. of the Contract provides that the

School Board can suspend or dismiss instructional employees

during the school year if the charges against him or her are

based on Florida Statutes. Article XXI, Section 2 of the

Contract provides that suspensions are to be effectuated in

accordance with the Florida Statutes, including Chapter 120,

Florida Statutes. Finally, Article XXI, Section 1.A.1.

provides: "The Board and Union recognize the principles of

progressive discipline. The parties agree that disciplinary

action may be consistent with the concept of progressive

discipline when the Board deems it appropriate, and that the

degree of discipline shall be reasonably related to the

seriousness of the offense."

4. On the morning of February 29, 2008, S.J., the student

body president at the time, was making announcements over the

school's audio system. S.J. routinely made the morning

announcements in her role as student body president.

5. As S.J. was finishing the announcements, Ms. Meyers

hurried into the room and gave S.J. a piece of paper which

contained a hand-written announcement. Ms. Meyers had not

followed the usual procedure for submitting announcements.

Usually, an announcement was submitted a day or two in advance

so it could be approved and so S.J. would have an opportunity to

read over the announcement before taking the microphone.

6. Nonetheless, S.J. began reading the announcement, which

appeared to be hastily written. 2 S.J. got stuck on the second

word of the announcement because she could not read Ms. Meyers'

handwriting. The word was "friendly," and Ms. Meyers "mouthed"

the word several times. 3 S.J. could not comprehend what

Ms. Meyers was trying to convey to her, and she turned back to

the microphone and said something to the effect of "Now, here is

Ms. Meyers with an announcement."

7. As S.J. passed Ms. Meyers the microphone, Ms. Meyers

become flustered and insisted that S.J. read the announcement,

saying something to the effect of "No, no, wait, wait. You read

the announcement." When S.J. continued to refuse to read the

announcement, Ms. Meyers, who was standing close to S.J.,

punched her on the upper left arm. Ms. Meyers immediately

apologized.

8. S.J. said Ms. Meyers's name into the microphone and

gave Ms. Meyers the microphone. S.J. moved away, clutching her

arm.

9. While Ms. Meyers read the announcement, S.J. began

crying and told Mr. Brown that Ms. Meyers had hit her on the

arm. 4 S.J. was wearing her school uniform, which included a polo

shirt. Because it was a cool day, S.J. wore a long-sleeved

blouse under the polo shirt. Even so, Corey Brown, the school's

activities advisor, who was about two feet away from S.J., heard

the blow. 5

10. When she finished reading her announcement, Ms. Meyers

again apologized to S.J. When S.J. did not stop crying,

Ms. Meyers asked S.J. if she wanted Ms. Meyers to write a letter

of apology.

11. Mr. Brown took S.J. to the principal's office, and, at

her request, they both wrote statements regarding the incident.

After reviewing the statements, the principal called the school

police, and an investigation was conducted.

12. In a letter dated July 24, 2008, Ms. Meyers was

notified that a recommendation would be made to the School Board

that she be suspended without pay for a period of 15 school

workdays. The School Board accepted this recommendation and

suspended Ms. Meyers without pay from August 4, 2008, through

September 3, 2008.

13. The evidence presented by the School Board is

sufficient to establish that Ms. Meyers failed to exercise the

best professional judgment; that her actions posed a potential

risk to the student's physical and mental health and safety;

that Ms. Meyers exposed S.J. to embarrassment; and that her

conduct was unseemly. Furthermore, Ms. Meyers' conduct in

punching a student in the arm is sufficiently serious to support

a reasonable inference that Ms. Meyers' effectiveness in the

school system was impaired.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

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

Florida Statutes.

15. Because this case is a proceeding to discipline

Ms. Meyers and does not involve the loss of a license or

certification, the School Board has the burden of proving the

allegations in the Notice of Specific Charges by a preponderance

of the evidence. McNeill v. Pinellas County School Board , 678

So. 2d 476 (Fla. 2d DCA 1996); Allen v. School Board of Dade

County , 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v. School

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

16. The School Board charged Ms. Meyers in Count I of the

Notice of Specific Charges with violation of School Board

Rules 6Gx13- 4A-1.21 ; in Count II with a violation of 6Gx13- 4A-

1.213 ; and in Count III with misconduct in office.

17. Section 1012.33, Florida Statutes, sets out the

grounds on which instructional personnel on professional service

contracts may be disciplined and 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

entitled 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.

* * *

(6)(a) Any member of the instructional

staff, excluding an employee specified in

subsection (4) [employees under continuing

contracts], may be suspended or dismissed at

any time during the term of the contract for

just cause as provided in paragraph (1)(a).

The district 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. If the employee

wishes to contest the charges, the employee

must, within 15 days after receipt of the

written notice, submit a written request for

a hearing.

18. The definitions of the categories of "just cause"

identified in Section 1012.33(1)(a), Florida Statutes, are

defined in Florida Administrative Code Rule 6B-4.009 and provide

"[t]he basis for charges upon which dismissal action against

instructional personnel may be pursued are set forth in

Section 231.36, Florida Statutes [now codified in

Section 1012.33, Florida Statutes]." Before addressing the

violations alleged against Ms. Meyers, however, it is necessary

to conform the charges set out in the Notice of Specific Charges

to the categories of "just cause" identified in

Section 1012.33(1)(a), Florida Statutes.

19. Violations of School Board rules do not, of

themselves, constitute just cause to discipline an employee

Section 1012.53(2), Florida Statutes, provides in pertinent

part: "Members of the instructional staff of the public schools

shall perform all duties prescribed by rules of the district

school board. . . ." There is nothing in the Florida Statutes

that indicates that School Board employees are subject to

discipline for failing to adhere to this statutory directive

unless the violation of School Board rules falls within one of

the categories of "just cause" set forth in

Section 1012.33(1)(a) and (6)(a), Florida Statutes. In this

case, the School Board rules that Ms. Meyers allegedly violated

fall within the definition of "misconduct in office" found in

Florida Administrative Code Rule 6B-4.009(3), and the charges

against her will be treated as a charge of misconduct in office.

20. "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." Fla. Admin. Code R. 6B-

4.009(3).

21. Florida Administrative Code Rule 6B-1.001, the Code of

Ethics of the Education Profession in Florida, 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 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.

22. Florida Administrative Code Rule 6B-1.006, the

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) 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 profession of

education 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.

23. School Board Rule 6Gx13- 4A-1.21 , which defines the

responsibilities and duties of permanent School Board personnel,

provides in pertinent part:

I. 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.

24. School Board Rule 6Gx13- 4A-1.213 , which is the School

Board's Code of Ethics, incorporates by reference and makes

applicable to all of the School Board's employees the Code of

Ethics of the Education Profession in Florida. Specifically,

School Board Rule 6Gx13-4A-6Gx13-4A-1.213V. provides in

pertinent part:

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.

25. Based on the findings of fact herein, the School Board

has proven by a preponderance of the evidence that Ms. Meyers

violated Florida Administrative Code Rule 6B-1.001(1) and (3)

and Florida Administrative Code Rule 6B-1.006(3)(a) and (e);

School Board Rule 6Gx13-4A-6Gx13-4A-1.21; and School Board

Rule 6Gx13-4A-6Gx13-4A-1.213V.1. and 6.

26. Although the School Board has met its burden of

proving that Ms. Meyers violated Florida Administrative Code

two elements to the charge of misconduct in office: In addition

to the rule violations, it is necessary to establish that

Ms. Meyers' conduct was "so serious as to impair [her]

effectiveness in the school system" in order to find her guilty

of misconduct in office. Fla. Admin. Code R. 4.009(3).

27. In order to establish that Ms. Meyers' effectiveness

in the school system was impaired, the School Board must either

prove by a preponderance of the evidence that her effectiveness

was impaired, or the conduct must be so serious that it would be

appropriate to infer from the conduct itself that her

effectiveness was impaired. See Purvis v. Marion County School

Board , 766 So. 2d 492, 498 (Fla. 5th DCA 2000)(some conduct is

so serious that, even without evidence of impaired

effectiveness, it can appropriately be inferred that teacher's

effectiveness in school system has been impaired).

28. The School Board did not offer any evidence to

establish that Ms. Meyers' effectiveness in the school system

was impaired. Ms. Meyers' conduct in striking a student is

conduct so serious it is reasonable to infer that Ms. Meyers'

effectiveness in the school system was impaired. The School

Board has, therefore, proven by a preponderance of the evidence

that Ms. Meyers committed misconduct in office and has,

consequently, established just cause to discipline Ms. Meyers.

29. Because Ms. Meyers has no prior disciplinary history,

the penalty of 15 workdays' suspension without pay is

appropriate under the principle of progressive discipline.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

a Final Order finding that Ms. Meyers committed misconduct in

office and suspending Ms. Meyers without pay for a period of

15 workdays.

DONE AND ENTERED this 5th day of March, 2009, in

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA M. HART

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 day of March, 2009.

ENDNOTES

1 / References herein to the Florida Statutes shall be to the

2008 edition unless otherwise indicated.

2 / See Petitioner's Exhibit 2.

3 / She did not say the word because she did not want to be heard

over the microphone that S.J. was holding.

4 / The testimony presented by Ms. Meyers regarding an incident

during the previous school year when S.J. seemed to react

disproportionately to the remarks of another teacher is not

sufficient to diminish her credibility regarding Ms. Meyers'

action in hitting her arm.

5 / Ms. Meyers testified that she was gesturing with her arms and

that her finger "brushed" against S.J.'s arm. See Transcript at

page 49. Valerie Johnson, a secretary at the school, was

sitting at her desk a few feet away from Ms. Meyers and S.J.

Ms. Johnson testified that Ms. Meyers was tapping S.J. on the

shoulder but was not gesturing with her arms. See Transcript at

pages 62-63. Having considered the testimony of Ms. Meyers and

Ms. Johnson and the testimony of S.J. and of Mr. Brown, it is

determined that the testimony of S.J. and Mr. Brown is the more

credible and persuasive. Mr. Brown was closer to S.J. and

Ms. Meyers during the exchange, and S.J. had no discernible

motive for falsely accusing Ms. Meyers of hitting her.

COPIES FURNISHED:

Janeen L. Richard, Esquire

Miami-Dade County School Board

Attorney's Office

1450 Northeast 2nd Avenue, Suite 400

Miami, Florida 33132

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Dr. Eric J. Smith

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Mr. Alberto M. Carvalho, Superintendent

Miami-Dade County School District

1450 Northeast Second Avenue, No. 912

Miami, Florida 33132-1308

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.