09-002413TTS Miami-Dade County School Board vs. Anthony L. Burney Status: Closed Recommended Order on Thursday, January 14, 2010.

Summary: Petitioner failed to prove that Respondent slapped a student and, therefore, failed to justify imposition of a 30-day suspension without pay.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-2413

)

ANTHONY L. BURNEY, )

)

Respondent. )

)

RECOMMENDED ORDER

As previously scheduled, a final hearing in this case was

held before Administrative Law Judge Eleanor M. Hunter of the

Division of Administrative Hearings, on November 3, 2009, at

video teleconference sites in Miami and Tallahassee, Florida.

APPEARANCES

For Petitioner: Janeen L. 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

The issue in this case is whether the district school board

has just cause to suspend a security monitor for 30 days without

pay based upon the allegation that he slapped a student.

PRELIMINARY STATEMENT

At its regular meeting on April 2, 2009, Petitioner Miami-

Dade County School Board suspended Respondent Anthony Burney,

for 30 workdays, without pay, from his position as a district

school security monitor. This action resulted from allegations

that on September 9, 2008, Mr. Burney slapped a student named

K.H. in the cafeteria at Allapattah Middle School (Allapattah).

In a letter dated April 23, 2009, Mr. Burney requested a

formal hearing. On May 8, 2009, the matter was referred to the

Division of Administrative Hearings ("DOAH") for further

proceedings and the final hearing was scheduled initially for

September 18, 2009, as requested by the parties. Based on

Petitioner's unopposed motion and the subsequent Joint Status

Report, the case was re-scheduled for November 3, 2009.

At the final hearing, Petitioner presented the testimony of

the following witnesses: former Allapattah Assistant Principal

Jacqueline Lewis; three students who are minors, D.M., D.G. and

A.E.; Miami-Dade School Police Officer Montoya Jackson; former

Allapattah Principal Adolfo Costa; and Jimmie Brown, Jr.,

District Director, Office of Professional Standards.

Petitioner's Exhibits 1 through 22 were admitted into evidence.

Mr. Burney testified on his own behalf and offered no additional

exhibits.

The alleged victim, K.H., did not appear at the hearing,

although he had been subpoenaed to testify. At the request of

counsel for the Petitioner, the deposition testimony of K.H. was

taken on November 23, 2009, and filed at DOAH on December 4,

2009.

The final hearing Transcript was filed on November 30,

2009. After an extension of time was granted at the request of

Petitioner, each party filed a Proposed Recommended Order before

the deadline, December 17, 2009.

FINDINGS OF FACT

1. Petitioner, the Miami-Dade County School Board

("Petitioner" or "the School Board"), is the constitutional

entity authorized to operate, control, and supervise the Miami-

Dade County Public School System.

2. As of the final hearing, Respondent Anthony Burney

("Respondent" or "Burney") had been employed as a school

security monitor in the Miami-Dade County Public School System

for approximately 21 years. For the last eight or nine years

and at all times relevant to this case, Burney was assigned to

Allapattah.

3. On September 9, 2008, K.H., an eighth grader, and

fellow students, D.M., D.G., and A.E., were sitting on benches

in the cafeteria, two on each side of an aisle facing each other

with their backs against the tables and their legs and feet in

the aisle.

4. Burney walked through the aisle to the lunchroom

serving counter and got a tray of food. When he walked back

through the aisle, K.H. wrote in a statement prepared the day of

the incident that he (K.H.) was "sitting down and [Burney] was

trying to pass by, ok. I let him pass the first time then he

came back on purpose just to bother us so I didn't move [my legs

and feet from the aisle], and out of now [sic] where he slapped

me."

5. The other students at the table gave conflicting

written statements and testimony. D.M. said Burney was running

towards them with a tray of food, that it was A.E. who did not

move her feet, and that Burney slapped K.H. on the right side of

his face with his left hand. D.G. did not remember whether or

not Burney had a tray, but she did hear him say "excuse me" the

first time he passed them but not the second time because they

were being loud and playing. D.G. also heard Burney apologize

to K.H. after he supposedly hit K.H.. A.E. testified that

Burney had the tray in his right hand and hit K.H. with his left

hand.

6. A video surveillance DVD is grainy and less than clear,

but it does show that Burney was walking not running. Burney

was holding a tray in his left hand not his right hand. It also

shows that, as Burney passed A.E. and K.H. who were sitting on

the bench to his left, he turned the right side of his body

towards K.H., but did not raise his right hand. After that,

K.H. jumped up in a confrontational stance in front of Burney

and was restrained by others. There were no red or other marks

on K.H.'s face.

7. The video surveillance DVD is consistent with Burney's

explanation of what happened. Burney walked pass the four

students to the counter and got his lunch. When he walked back

down the same aisle with his tray, he turned to step over the

student's legs and get through the aisle. He inadvertently

touched K.H. when he brushed pass him and, as soon as K.H.

jumped up to confront him, he apologized to defuse the

situation.

8. The cafeteria was emptying near the end of the lunch

period and Burney could have and, in retrospect, arguably should

have walked down any of the other aisles where there were no

students sitting. While that may have demonstrated the best

professional judgment for an adult dealing with 14-year-old

children, there is no evidence that Burney had any prior

conflicts with K.H. or any reason to believe that he needed to

avoid him to prevent the confrontation.

9. As a result of the allegations that he slapped K.H.,

Burney was reassigned to work at a different location. On

November 13, 2008, a conference-for-the-record was held to

discuss the findings of the investigation with Burney. He was

given notice of his principal's recommendation for discipline on

February 23, 2009. At its regular meeting on April 2, 2009, the

School Board voted to accept the recommendation to suspend

Burney without pay for 30 workdays.

Ultimate Factual Determinations

10. Burney's conduct on September 9, 2008, did not entail

threats, threatening behavior, or acts of violence. He did not,

therefore, violate School Board Rule 6Gx13-4-1.08, which

prohibits violence in the workplace.

11. Burney did not violate School Board Rule 6Gx13-4A-

1.21, which prohibits unseemly conduct or the use of abusive or

profane language.

12. Burney did not violate the Code of Ethics, School

Board Rule 6Gx13-4A-1.213, by not respecting the dignity of

others, not exercising his best professional judgment, or not

conducting himself ethically.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this

proceeding pursuant to Sections 1012.33(6)(a)2., 120.569, and

120.57(1), Florida Statutes (2009).

14. In an administrative proceeding to suspend or dismiss

a teacher, the school board, as the charging party, bears the

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

element of the charged offense(s). See McNeill v. Pinellas

County School Bd. , 678 So. 2d 476, 477 (Fla. 2d DCA 1996);

Sublett v. Sumter County School Bd. , 664 So. 2d 1178, 1179 (Fla.

5th DCA 1995); MacMillan v. Nassau County School Bd. , 629 So. 2d

226 (Fla. 1st DCA 1993).

15. Burney's guilt or innocence is a question of ultimate

fact to be decided in the context of each alleged violation.

McKinney v. Castor , 667 So. 2d 387, 389 (Fla. 1st DCA 1995);

Langston v. Jamerson , 653 So. 2d 489, 491 (Fla. 1st DCA 1995).

16. In its three-count Notice of Specific Charges served

on August 19, 2009, the School Board alleged that Burney

violated rules on the following: Violence in the Workplace

(Count I), Responsibilities and Duties (Count II), and the Code

of Ethics (Count III).

17. 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 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.

§ 1012.33(6)(a), Fla. Stat.

18. The term "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.

§ 1012.33(1)(a), Fla. Stat.

19. Florida Administrative Code Rule 6B-4.009 provides the

following relevant definition:

(3) Misconduct in office is defined as a

violation of the Code of Ethics of the

Education Proffession as adopted in Rule 6B-

1.001, F.A.C., and the Principles of

Professional Conduct for 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.

20. Slapping a student has been recognized as a basis for

discipline of school personnel. Manatee County School Board v.

Chevalier , DOAH Case No. 09-1972 (R.O. 11/17/09), 2009, Fla.

Div. Adm. Hear. LEXIS 819.

21. In Count I, the School Board accused Burney of

violating School Board Rule 6Gx13-4-1.08, which provides in

relevant part:

Threats, threatening behavior, or acts of

violence against students , employees,

visitors, or other individuals by anyone on

DCPS property will not be tolerated.

Violations of this policy may lead to

disciplinary action which includes

dismissal, arrest, and/or prosecution.

Any person who makes substantial threats,

exhibits threatening behavior, or engages in

violent acts on DCPS property shall be

removed from the premises as quickly as

safety permits, and shall remain off DCPS

premises pending the outcome of an

investigation. DCPS will initiate an

appropriate response. This response may

include, but it is not limited to,

suspension and/or termination of any

business relationship, reassignment of job

duties, suspension or termination of

employment, and/or criminal prosecution of

the person or persons involved.

(Emphasis added.)

22. The evidence does not support a finding that Burney

committed an act of violence against K.H. Burney is, therefore,

not guilty of violating School Board Rule 6Gx13-4-1.08.

23. Count II is based on Burney's alleged violation of

School Board Rule 6Gx13-4A-1.21, which provides as follows:

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 workplace is expressly prohibited.

24. This case does not involve allegations of abusive or

profane language in the workplace (although it is noted with

disfavor that Burney was profane and made a point of wanting it

on the record at the hearing). Whether Burney violated School

Board Rule 6Gx13-4A-1.21, as alleged by the School Board, turns

upon whether his conduct was "unseemly."

25. The Rule does not define the term "unseemly conduct."

The word "unseemly," however, usually suggests inappropriateness

manifesting indecency, bad taste, or poor form ( e.g. a crude

joke in mixed company). There is no evidence to support a

finding that Burney's conduct was unseemly. See Miami-Dade

County School Board v. Williams , DOAH Case No. 04-2156 (R.O.

12/2/04, F.O. 1/26/05).

26. The Code of Ethics of the Education Profession,

adopted in Florida Administrative Code Rule 6B-1.001, provides,

in relevant part, as follows:

6B-1.001 Code of Ethics of the Education

Profession in Florida.

(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.

27. The evidence is insufficient to support a finding, as

alleged in Count III, that Burney violated the Code of Ethics of

the Education Profession.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the School Board enter a final order

rescinding its previous decision to suspend Burney without pay

for a period of 30 workdays, and award him back pay or benefits,

if any were denied him as a result of that decision.

DONE AND ENTERED this 14th day of January, 2010, in

Tallahassee, Leon County, Florida.

S

ELEANOR M. HUNTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of January, 2010.

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

Mr. Alberto M. Carvalho, Superintendent

Miami-Dade County School Board

1450 Northeast Second Avenue, No. 912

Miami, Florida 33132-1308

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

Turlington Building, Suite 1514

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.