09-004238TTS Palm Beach County School Board vs. Ricky Woods Status: Closed Recommended Order on Friday, April 23, 2010.

Summary: School Board failed to prove by clear and convincing evidence that Respondent committed the acts alleged in the Petition for termination. Recommend that the Petition be dismissed and Respondent be reinstated with back salary.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-4238

)

RICKY WOODS, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

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

on January 6, 2010, by video teleconference, with the parties

appearing in West Palm Beach, 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: Vicki L. Evans-Paré, Esquire

Palm Beach County School Board

Post Office Box 19239

West Palm Beach, Florida 33416-9239

For Respondent: Matthew E. Haynes, Esquire

Johnson, Haynes & Miller, P.A.

241 Almyra Drive

Lake Mary, Florida 32746

Jeffrey Scott Sirmons, Esquire

Johnson, Haynes & Miller, P.A.

510 Vonderburg Drive, Suite 305

Brandon, Florida 33511

STATEMENT OF THE ISSUE

Whether the Respondent committed the violations alleged in

the Petition dated August 6, 2009, and, if so, the penalty that

should be imposed.

PRELIMINARY STATEMENT

In a Petition dated August 6, 2009, the Palm Beach County

School Board ("School Board") requested that Ricky Woods be

suspended without pay and terminated from employment with the

School Board. In the introductory paragraph of the Petition,

the School Board stated:

Pursuant to the due process provisions

of Florida Statutes Sections 120.569,

120.57, 1012.22(1)(f), 1012.27(5) and

Administrative Code 6B-1.001, Code of Ethics

of the Education Profession in Florida,

6B-1.006, Principles of Professional Conduct

for the Education Profession in Florida, and

6B-4.009, Criteria for Suspension and

Dismissal, Palm Beach County School District

Policies 0.01(2)(c), 1.013 and 3.27, as well

as Administrative Directive 3.27, the School

District files this Petition for Suspension

Without Pay and Dismissal from Employment of

Respondent, Ricky Woods, from his employment

from the School District for violating the

code of ethics and professional conduct, as

well as School Board Administrative

Directive 3.27. Specifically, Respondent

failed to exercise best professional

judgment, engaged in inappropriate physical

force on a student, and engaged in

inappropriate interaction with student(s),

thereby precluding Respondent from meeting

the School District's minimum standards for

continuing employment in the School

District, constituting just cause for

suspension and dismissal under Florida

Statutes Section 1012.33; Florida

Administrative Code 6B-4.009; and Article 2,

Section M of the Collective Bargaining

Agreement between the Palm Beach County

Classroom Teachers Association and the

School Board of Palm Beach County.

In paragraphs 29 and 30 of the Petition, the School Board

charged Mr. Woods specifically with having violated Florida

Administrative Code Rules 6B-6.001(2) and 6B-1.006(3)(a). The

School Board based these alleged violations on factual

allegations that Mr. Woods had, on two occasions in late

January and early February 2009, used inappropriate physical

force on two students in his kindergarten class, on one occasion

in the classroom and on the other occasion on the playground.

Mr. Woods 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. The final hearing was held on January 9, 2010.

At the hearing, the School Board presented the testimony

of Mr. Woods, Vivian Mullins, and Angelette Green; Petitioner's

Exhibits 1, 2, 4, 7, 9, 10, 15, 17, 20, 22, 23, and

28 through 35, were offered and received into evidence.

Petitioner's Exhibits 2, 4, 10, 11, 15, 17, 23, and 24 were

received over objections on the basis of hearsay, and the

parties were advised that the use of the hearsay evidence

would be governed by the limitations set forth in

Section 120.57(1)(c), Florida Statutes ("Hearsay evidence may be

used for the purpose of supplementing or explaining other

evidence, but it shall not be sufficient in itself to support a

finding unless it would be admissible over objection in civil

actions.").

Mr. Woods testified in his own behalf and presented the

testimony of Mark Wilensky; Respondent's Exhibits 1 through 12

were offered and received into evidence. Respondent's Exhibit 8

is the transcript of the deposition of student B.M.;

Respondent's Exhibit 9 is the transcript of the deposition of

student G.M.; Petitioner's Exhibit 10 is the transcript of the

deposition of student K.K.; and Respondent's Exhibit 11 is the

transcript of the deposition of student J.C. The deposition

testimony of these students was received into evidence in lieu

of live testimony upon the agreement of the parties.

The transcript of the proceedings was filed with the

Division of Administrative Hearings on January 25, 2010. An

extension of time for filing proposed recommended orders until

March 16, 2010, was granted upon the Petitioner's motion, to

which the Respondent did not object. 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. (2009). 1 Specifically, the School Board has the

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

2. Mr. Woods has been a teacher with the School Board

since 2004 and has met the NCLB Highly Qualified Standards for

Elementary Education, K-6. At the times pertinent to this

proceeding, he was employed under a professional service

contract as a kindergarten teacher at Rosenwald Elementary

School in South Bay, Florida. 2

3. As a classroom teacher in Palm Beach County, Mr. Woods'

employment is subject to the Collective Bargaining Agreement

Between The School District of Palm Beach County, Florida and

the Palm Beach County Classroom Teacher's Association

("Collective Bargaining Agreement").

4. Disciplinary action was taken against Mr. Woods by the

School Board prior to the events giving rise to this proceeding.

On March 07, 2007, the School Board issued a Written Reprimand

to Mr. Woods for using unnecessary physical force on a student.

In the reprimand, Mr. Woods was "directed to cease such conduct

immediately" and "to desist from engaging in the same or similar

conduct in the future." Mr. Woods was advised that, if he

failed to do so, he would be subject to "further disciplinary

action up to and including termination."

5. On January 28, 2009, an incident occurred in Mr. Woods'

kindergarten classroom during the portion of the school day when

Mr. Woods read the class a book and the students participated

with questions and discussion. Mr. Woods observed student B.M.

fighting with and punching another student. Mr. Woods made

physical contact with B.M. when he separated the two boys and

when he led B.M. to an area of the carpet where Mr. Woods told

B.M. to sit in time-out. B.M. did not request any medical

attention as a result of this incident, and there was no

indication that B.M. suffered bruising or any type of injury as

a result of Mr. Woods' actions.

6. A second incident involving Mr. Woods and student J.C.

occurred on February 3, 2009. The incident occurred during

recess, close to the end of the school day, when Mr. Woods'

students were on the playground. J.C. ran past other students

filing onto the playground to the slide. Mr. Woods had

previously placed J.C. in time-out, and J.C. had been told to

sit on the playground with several other students who were also

in time-out. As J.C. slid down the slide, Mr. Woods moved to

the end of the slide to intercept J.C. so he could lead J.C. to

the area where the other students were sitting in time-out.

When J.C. reached the end of the slide and stood up, Mr. Woods

reached for him, but J.C. went limp and began falling to the

ground. Mr. Woods grabbed J.C.'s jacket to keep him from

falling to the ground and possibly injuring himself on the end

of the slide. 3

7. The School Board conducted investigations of the

allegations against Mr. Woods, and, after going through all of

the pre-disciplinary steps required by the collective bargaining

agreement, the Superintendent of the Palm Beach County school

system issued a Notice of Suspension and Recommendation for

Termination from Employment dated June 25, 2009, advising

Mr. Woods that he intended to recommend to the School Board that

he be suspended without pay and his employment with the School

Board terminated at the July 22, 2009, School Board meeting.

8. Article II, Section M of the collective bargaining

agreement governs the discipline of employees. Article II,

Section M1. of the Collective Bargaining Agreement provides:

"Without the consent of the employee and the Association,

disciplinary action may not be taken against an employee except

for just cause, and this must be substantiated by clear and

convincing evidence which supports the recommended disciplinary

action."

Summary and findings of ultimate fact

9. The School Board failed to present sufficient credible

and persuasive evidence to establish with the requisite degree

of certainty that Mr. Woods is guilty of the conduct with which

he has been charged in the Petition. For the reasons stated in

Endnote 3, the evidence presented by the School Board is not

sufficient to produce a firm conviction in the mind of this

trier of fact that the School Board's allegations that Mr. Woods

used excessive physical force during the playground incident

involving Mr. Woods and J.C. are true.

10. The evidence presented by the School Board is,

likewise, not sufficient to cause this trier of fact to believe

without hesitancy and with a firm conviction that the School

Board's allegations that Mr. Woods used excessive physical force

during the January 28, 2009, incident involving B.M. are true.

The only evidence presented by the School Board relating to the

charges that Mr. Woods used excessive physical force to break up

a fight between B.M. and one of his classmates was Mr. Woods'

live testimony and the transcript of B.M.'s deposition

testimony, which was placed into evidence in lieu of his live

testimony. 4 Mr. Woods' testimony that he did not use excessive

physical force on B.M. but made only as much physical contact

with B.M. as was required to separate him and his classmate and

to lead B.M. to the area in which B.M. would spend his time-out

period is credited over that of B.M.

11. B.M.'s deposition testimony that, when breaking up the

fight, Mr. Woods grabbed his shirt and pulled and pushed him

back and forth, striking his chest several times, is not

sufficiently persuasive to convince this trier of fact to credit

B.M.'s version of events rather than Mr. Woods' version. The

credibility and weight of B.M.'s deposition testimony was

diminished by the failure of either attorney to establish on the

record that B.M. knew the difference between the truth and a lie

and felt an obligation to tell the truth, see J.B.J. v. State ,

17 So. 3d 312 (Fla. 1st DCA 2009); by B.M.'s persistent fear

that he was going to be sent to jail; by the prompting of B.M.

by Ms. B., who attended the deposition and is presumably

B.M.'s mother or a close relative, to tell "everything you came

home . . . and told me"; and by the explanations given to B.M.

during the deposition that the purpose of the deposition was to

find out if Mr. Woods had done something wrong and if he was in

trouble and should be punished. In addition, B.M.'s deposition

testimony is not corroborated by the testimony of the three

classmates whose deposition testimony was received into evidence

in lieu of their live testimony or by the testimony of any third

party. Finally, B.M. gave a confused account of the events

leading up to Mr. Woods' alleged use of excessive force but, at

the same time, recited verbal exchanges he had purportedly had

with the boy with whom he was fighting, the effect of which was

to give the impression that B.M. did not recall the incident

with Mr. Woods and was telling a story. For these reasons,

B.M.'s testimony is not sufficiently credible or persuasive to

support a finding that Mr. Woods used excessive physical force

when separating B.M. and his classmate on January 28, 2009.

CONCLUSIONS OF LAW

12. 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.

13. Pursuant to the terms of the Collective Bargaining

Agreement, the School Board must have just cause to terminate

Mr. Woods' employment, and it must prove the allegations in the

Petition by clear and convincing evidence.

14. In Evans Packing Co. v. Department of Agriculture and

Consumer Services , 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA

1989), the court explained:

[C]lear 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 evidence 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

the firm belief of conviction, without

hesitancy, as to the truth of the

allegations sought to be established.

Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983).

Judge Sharp, in her dissenting opinion in Walker v. Florida

Department of Business and Professional Regulation , 705 So. 2d

652, 655 (Fla. 5th DCA 1998)(Sharp, J., dissenting), reviewed

several pronouncements on clear and convincing evidence:

Clear and convincing evidence requires more

proof than preponderance of evidence, but

less than beyond a reasonable doubt. In re

Inquiry Concerning a Judge re Graziano ,

696 So. 2d 744 (Fla. 1997). It is an

intermediate level of proof that entails

both qualitative and quantative [sic]

elements. In re Adoption of Baby E.A.W. ,

658 So. 2d 961, 967 (Fla. 1995), cert.

denied , 516 U.S. 1051, 116 S. Ct. 719, 133

L. Ed. 2d 672 (1996). The sum total of

evidence must be sufficient to convince the

trier of fact without any hesitancy. Id.

It must produce in the mind of the trier of

fact a firm belief or conviction as to the

truth of the allegations sought to be

established. Inquiry Concerning Davie , 645

So. 2d 398, 404 (Fla. 1994).

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

has failed to carry its burden of proving by clear and

convincing evidence that Mr. Woods committed the acts alleged in

the School Board's Petition. The School Board has, therefore,

failed to prove that it has just cause to suspend Mr. Woods

without pay and to terminate his employment. 5

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Palm Beach County School Board

enter a final order dismissing the Petition filed against

Ricky Woods, immediately reinstating him, and awarding him back

salary for the period of his suspension, as provided in

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

DONE AND ENTERED this 23rd day of April, 2010, 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 23rd day of April, 2010.

ENDNOTES

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

2009 edition unless otherwise indicated.

2 / Neither Mr. Woods nor the School Board presented evidence

regarding the nature of his employment contract with the School

Board, but he was employed subsequent to 1984 and, therefore,

would not be under a continuing contract. See

§ 1012.33(4)(A), Fla. Stat.

3 / Mr. Woods' description of the incident involving J.C. is

accepted as more credible and persuasive than the account given

by Vivian Mullins in her testimony. Ms. Mullins, a child

protective investigator with the Department of Children and

Family Services, testified that she saw Mr. Woods grab J.C. by

the jacket when he reached the bottom of the slide and

forcefully slam him to the ground. At the time, Ms. Mullins was

already predisposed to believe Mr. Woods used violence on his

students because she was on the grounds of Rosenwald Elementary

School to investigate a complaint about the January 28, 2009,

incident involving B.M. She also observed the incident from a

distance of approximately 90 feet. In addition, Ms. Mullins'

version of the incident was not corroborated by J.C. or any of

the students whose testimony was offered by deposition

transcript at the final hearing.

4 / The remaining evidence presented by the School Board related

to this incident consisted of the investigation reports of two

officers of the Palm Beach County School Police Department and

summaries prepared from those reports. The investigation

reports are hearsay, and the information contained in these

reports consists of summaries of interviews the police officers

had with various persons, which information is hearsay within

hearsay. The School Board failed to establish that these

documents would be admissible over objection in a civil

proceeding, and, consequently, the information contained in

these documents cannot support findings of fact in this

Recommended Order. See § 120.57(1)(c), Fla. Stat. ("Hearsay

evidence may be used for the purpose of supplementing or

explaining other evidence, but it shall not be sufficient in

itself to support a finding unless it would be admissible over

objection in civil actions.").

5 / As quoted above in the Preliminary Statement, the Petition

filed by the School Board contains an introductory paragraph

that includes a recitation of numerous statutes, rules, and

School Board policies pursuant to which the School Board sought

to suspend Mr. Woods and terminate his employment. The only

specific violations charged, however, are found in paragraphs 29

and 30 of the Petition, in which the School Board charged that

Mr. Woods violated Florida Administrative Code Rules 6B-1.001(2)

and 6B-1.006(3)(a).

Section 1012.33, Florida Statutes, 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: 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.

* * *

(6)(a) Any member of the instructional

staff, excluding an employee specified in

subsection (4), may be suspended or

dismissed at any time during the term of the

contract for just cause as provided in

paragraph (1)(a). . . .

The definitions of the categories of "just cause" identified in

Section 1012.33(1)(a), Florida Statutes, are set forth in

Florida Administrative Code Rule 6B-4.009, which provides that

"[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]." There is nothing in the Florida Statutes

providing that School Board employees are subject to suspension

or dismissal for failing to adhere to any specific provision of

the Code of Ethics of the Education Profession as adopted in

Florida Administrative Code Rule 6B-1.001, or to the Principles

of Professional Conduct for the Education Profession in Florida

as adopted in Florida Administrative Code Rule 6B-1.006.

At the final hearing and in his Proposed Recommended Order,

Mr. Woods argued that, on its face, the School Board had failed

to charge Mr. Woods with a violation which would constitute just

cause for his suspension and termination. Because of the

finding that the School Board failed to prove the factual

allegations of wrongdoing, it is not necessary to address this

argument, but the School Board should be cognizant of the

requirement that charging documents must allege with specificity

the statutory violations with which a person is being charged.

See Marcellin v. Department of Business and Professional

Regulation , 753 So. 2d 745 (Fla. 3d DCA 2000)(court struck

statutory violations in final order that were not charged in

administrative complaint).

COPIES FURNISHED:

Dr. Arthur C. Johnson, Superintendent

Palm Beach County School Board

3340 Forest Hill Boulevard, C316

West Palm Beach, Florida 33406-5869

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Dr. Eric Smith, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Vicki L. Evans-Paré, Esquire

Palm Beach County School Board

Post Office Box 19239

West Palm Beach, Florida 33416-9239

Matthew E. Haynes, Esquire

Johnson, Haynes & Miller, P.A.

241 Almyra Drive

Lake Mary, Florida 32746

Jeffrey Scott Sirmons, Esquire

Johnson, Haynes & Miller, P.A.

510 Vonderburg Drive, Suite 305

Brandon, Florida 33511

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.