11-001040TTS Duval County School Board vs. Michael Brown Status: Closed Recommended Order on Monday, September 12, 2011.

Summary: Petitioner demonstrated that Respondent committed misconduct in office by his striking a student. Recommend termination of position.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DUVAL COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 11 - 1040

)

MICHAEL BROWN , )

)

Respondent. )

)

RECOMMENDED ORDER

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

on April 28, 2011 , in Jacksonville , Florida, before Lawrence P.

Stevenson, the designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: D errel Q. Chatmon , Esquire

Office of the General Counsel

City Hall, St. James Building

117 West Duval Street, Suite 480

Jacksonville , Florida 3 2202

For Respondent: David A. Hertz , Esquire

Duval Teachers United

1601 Atlantic Boulevard

Jacksonville , Florida 3 2207

STATEMENT OF THE ISSUE

The issue is whether Petitioner, the Duval County School

Board, may terminate Res pondent's employment as an instructional

employee based upon the conduct alleged in the letter titled

"Notice of Termination of Employment Contract and Immediate

Suspension Without Pay" (the "Notice") from Superintendent of

Schools Ed Pratt - Dannals to Resp ondent dated February 15, 2011 .

PRELIMINARY STATEMENT

On or about February 15, 2011 , Respondent Michael Brown

received a copy of the Notice, which set forth the following

charge and factual allegations in support thereof:

CHARGE I : Violation of regulation s relating

to the public school system, those

violations being:

Code of Ethics :

6B - 1.006(3)(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 safet y.

6B - 1.006(3)(e) -- Shall not intentionally

expose a student to unnecessary

embarrassment or disparagement.

6B - 1.001(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.

6B - 1.001(3) -- Aware of the importance of

maintaining the respect and confidence of

one's colleagues, of students, of pa rents,

and of other members of the community, the

educator strives to achieve and sustain the

highest degree of ethical conduct.

SUMMARY OF NATURE AND SPECIFICATION OF

CHARGE :

February 9, 2011 -- You pushed a male

student up against the lockers , yelled at

him, and hit him in the head causing his

head to hit the lockers. You were arrested

and charged with Child Abuse -- Intentional

Infliction of Physical or Mental Injury --

Personal Weapons with No or Minor Injuries --

Felony.

PREVIOUS DISCIPLINE :

July 9 , 2009 -- Step III Progressive

Discipline -- Suspension without pay for five

(5) days 1 / due to a physical altercation that

took place between you and a student.

The Notice informed M r. Brown of his right to a formal

hearing to contest the factual allegatio ns recited in the

Notice, and, should he invoke h is right to a formal hearing,

that the Duval County School Board (the "School Board") would

act to suspend h im from employment without pay as of April 6,

2011 , pursuant to s ection 1012.33, Florida Statutes. On

February 21, 2011, Mr. Brown timely invoked h is right to a

formal hearing via a letter from h is counsel to Mr. Pratt -

Dannals.

On February 28, 2011 , the School Board referred the matter

to the Division of Administrative Hearings ("DOAH") for the

ass ignment of an Administrative Law Judge and t he conduct of a

formal hearing. Th e matter was scheduled for final hearing on

April 28 and 29, 2011, though only the first day was required to

complete the hearing .

At the hearing, the School Board presented t he testimony of

Melissa Horne and Sean Kiernan, teachers at Fort Caroline Middle

School ("Fort Caroline"); Jennifer Bridwell, principal of Fort

Caroline; Adam Carr, the school resource officer ("SRO") at Fort

Caroline; and Vicki Reynolds, chief human resou rces officer for

the School Board. The School Board's Exhibits 1 through 27 were

admitted into evidence without objection . Respondent testified

on his o wn behalf. Respondent's Exhibit 1 was admitted into

evidence without objection.

The one - volume Transc ript of the hearing was filed at DOAH

on May 23, 2011 . Respondent's P roposed R ecommended O rder was

timely filed on May 31, 2011. Respondent's P roposed R ecommended

O rder was timely filed on June 2, 2011.

FINDINGS OF FACT

1. Respondent Michael Brown has been employed by the

School Board as a teacher since February 1997 . He is a

certified instructional employee covered by the Duval County

Teacher Tenure Act, Chapter 21197, Laws of Florida (1941), as

amended ("Tenure Act") and the Collective Bargaining Ag reement

("CBA") between Duval Teachers United and the School Board for

2009 - 2011. At the time of the events at issue in this

proceeding, Mr. Brown was assigned to Fort Caroline.

2. Fort Car oline employs a classroom management program

called "CHAMPS " to e stablish the disciplinary climate in the

school. All teachers at the school receive CHAMPS training ,

which emphasizes the creation of a "safe and civil" approach to

discipline.

3. Sean Kiernan, who teaches sixth through eighth grade

social studies at For t Caroline, testified about the CHAMPS

training he received when he was hired by the School Board. The

CHAMPS training instructs the teacher on how to deal with

situations that arise during the school day. The teacher learns

methods for maintaining a cal m environment and a series of steps

for reacting to classroom disruptions, up to sending for the

SRO , who is a sworn law enforcement officer .

4 . Fort Caroline P rincipal Jennifer Bridwell testified

that in the summer of 2010, the school also provided "ICA RE"

training to show teachers how to positively interact with

students and more specifically how to deal with difficult

students.

5 . Melissa Horne , a sixth grade science teacher at Fort

Caroline, described ICARE as training in how to treat students

with r espect and how to de - escalate problematic situations in

the classroom.

6 . Mr. Brown claimed that he had received no training on

how to deal with a violent situation. No witness at the hearing

testified as to actually seeing Mr. Brown attend CHAMPS or ICA RE

training, though Ms. Bridwell testified that she knew Mr. Brown

was present during the summer 2010 planning sessions that

included the ICARE training .

7 . Regardless of whether Mr. Brown received specific

training, Ms. Bridwell convincingly testified that no one in

Fort Caroline's administration has ever indicated that physical

violence is an acceptable alternative for a teacher who is

dealing with a physically difficult situation. If a teacher is

faced with an intractable student, the proper course o f action

is to refer the student to the school's administrators and, if

necessary, to call for assistance from the SRO.

8 . Under exigent circumstances, a teacher is permitted to

restrain a student, meaning to hold the student so that he is

not a danger to himself or those around him. Striking a student

is never considered an acceptable means of discipline at Fort

Caroline or any other Duval County school.

9 . On February 9, 2011 , at about 1:30 p.m., classes were

changing at Fort Caroline. Ms. Horne was l eading her class up

the " A " h allway toward the Science Lab in Room A - 8. (A

schematic drawing of Fort Caroline was introduced as School

Board Exhibit 24 and is included at Appendix A of this

Recommended Order.)

10. Mr. Kiernan wa s leading his class down the A h allway

from his classroom at A - 3 to the restrooms in front of A - 10 and

B - 7, as it was his practice to allow his students a bathroom

break before the start of class. His students lined the hallway

in front of rooms A - 8 and B - 5, directly across from the

restrooms.

11. Mr. Kiernan testified that as he came around the

corner from the A hallway to the bathrooms, he saw Mr. Brown

walking quickly past him in the opposite direction. Mr. Kiernan

then saw Ms. Horne and her class walking toward his class, a nd

he greeted Ms. Horne in the middle of the intersection of the

main hallway and the A hal lway .

12. Mr. Brown was calling out to a student, T.B., who was

walking up the A hallway. Ms. Horne testified that at first

T.B. kept walking, until Mr. Brown yell ed at him again to come

to him. T.B. then turned around and started walking toward

Mr. Brown. Ms. Horne stated that Mr. Brown was clearly angry.

13. Ms. Horne testified that Mr. Brown walked directly up

to T.B. and backed him into the lockers between ro oms A - 5 and

A - 7. Mr. Brown did not actually touch T.B., but used his bulk

and forward movement to "bully" the child into the lockers.

Ms. Horne heard Mr. Brown say, "You don't ever hit me. Don't

try me like that. I'm a grown man." There were only inc hes

between Mr. Brown's face and T.B.'s.

14. Ms. Horne testified that she was facing Mr. Kiernan in

such a way that she could only see Mr. Brown and T.B. with her

peripheral vision . She saw Mr. Brown's hand move toward T.B.'s

face, then she heard a "pop" that sounded like a slap or blow.

15. Mr. Kiernan was directly facing Mr. B rown and T.B.

Mr. Kiernan heard Mr. Brown say, "You don't put your hands on

me" and "I'm a grown man" and "You don't do that." Mr. Kiernan

stated that Mr. Brown had placed his r ight hand on T.B.'s

shoulder to guide him into the lockers 15 to 20 feet away . When

they stopped at the lockers, Mr. Brown's face was less than a

foot from T.B.'s. T.B. stood motionless with his hands at his

sides as Mr. Brown spoke. Then, Mr. Brown rea ched up with his

right hand and slapped the left side of T.B.'s face, near his

ear.

16. Mr. Brown said a couple more things and then walked

away. T.B. stood there looking stunned, his hands still at his

sides. In disbelief, Mr. Kiernan turned to Ms. Hor ne and asked,

"Did he just slap him?"

17. T.B. was a student in Mr. Kiernan's class.

Mr. Kiernan described him as an honor student, classified as

"gifted," who was not a discipline problem but was at times

given to "horseplay" with other boys in the cla ss. Mr. Kiernan

called T.B. over and asked him how he was doing. Mr. Kiernan

testified that T.B. looked "a little shook up " but did not

appear to have suffered any real physical harm.

18. Ms. Horne proceeded with her class to the science lab.

Before sh e reached the room, Mr. Brown had returned. He

apologized to her for what she had witnessed. He told her that

he was very sorry that she had to see that, without specifying

what "that" was.

19. Mr. Kiernan took his class to room A - 3. Mr. Brown

approach ed Mr. Kiernan as the latter was holding the classroom

door open to allow the students to enter the classroom.

Mr. Brown apologized, saying he was sorry that Mr. Kiernan had

to see that, again without specifically referencing what

Mr. Kiernan had seen.

20 . Mr. Kiernan recalled that Mr. Brown said, "Maybe I

should tell somebody" about the incident. Mr. Kiernan told

Mr. Brown that he intended to report the incident to the

school's administration, whether or not Mr. Brown did.

21. Mr. Brown recalled tellin g Mr. Kiernan that he was

definitely going to report the incident. Mr. Brown did not

recall Mr. Kiernan stating his own intention to make a report.

22. In any event, Mr. Brown did immediately proceed to the

office of assistant principal Susan Price, who took Mr. Brown

into the office of the principal, Ms. Bridwell.

23. T his was not the first incident involving a physical

confr ontation between Mr. Brown and a student. On May 29, 2009,

while teaching at Forrest High School, Mr. Brown grabbed a ninth

grade student who had hit him with a ruler. The results of the

investigation of this incident were less than clear as to the

exact sequence of events, but the School Board concluded that

Mr. Brown exercised poor judgment in making physical contact

with the stu dent. The School Board's chief human resources

officer, Vicki Reynolds, recommended that Mr. Brown's employment

be terminated. However, o n July 9, 2009, Mr. Brown received a

formal reprimand and a 15 - day unpaid suspension. He was also

ordered to enroll in and attend the School Board's Employee

Assistance Program ("EAP"). 2 /

24. Ms. Bridwell was aware of Mr. Brown's history when he

transferred to Fort Caroline prior to the 2009 - 2010 school year.

She made a point of telling Mr. Brown that he had a "clean

slate" at Fort Caroline, and that she would not tell anyone

about his past discipline.

25. Ms. Bridwell testified that on the afternoon of

February 9, 2011, she was called out of her office by Ms. Price,

who told her that Mr. Brown had hit a student. Ms. Bridwell

walked into her conference room, where Ms. Price had left

Mr. Brown. Ms. Bridwell testified that M r. Brown was sitting in

a chair. He was bent over, shaking his head, and appeared

distraught. When Ms. Bridwell asked him what had happened, he

r eplied, "I can't believe it happened again."

26. Ms. Bridwell contacted the School Board's office of

professional standards for guidance and was advised to contact

Adam Carr, the SRO for Fort Caroline. Ms. Bridwell spoke with

Mr. Kiernan and then with Ms . Horne. Each teacher separately

told the same story , that Mr. Brown had yelled at a student and

then hit him.

27. Ms. Bridwell also spoke with T.B., who still seemed

shocked and frightened by the incident. T.B. admitted having

playfully touched Mr. B rown on top of his head before the

incident . He told Ms. Bridwell that he had done the same thing

before to Mr. Brown without provoking a violent reaction.

28. SRO Carr called in Detective Ricky Dowling of the

Duval County School District Police to assis t in the

investigation. SRO Carr interviewed T.B. and also found him to

be shocked and stunned by the sequence of events. T.B.'s

statement to SRO Carr was consistent with his report to

Ms. Bridwell. He was walking down the hall with Mr. Kiernan's

class toward the restrooms when he saw Mr. Brown, "swiped him

softly" on his head, then ran ahead. Mr. Brown caught up with

him, told him this was "a grown man's game," and then slapped

T.B. on the side of his head.

29. SRO Carr and Det. Dowling interviewed an d took written

statements from Mr. Kiernan, Ms. Horne, and five students who

witnessed the event. The students all agreed that T.B. had

rubbed Mr. Brown's head, which angered Mr. Brown and caused him

to chase T.B. down the hall and hit him. Two of the st udents

specifically stated they heard Mr. Brown refer to himself as a

"grown man" who doesn't "play like that" or "play that game."

30. Det ective Dowling interviewed Mr. Brown, with SRO Carr

also in attendance. Mr. Brown told the detective that h e struck

T.B. in self - defense. T.B. had already hit him once and, as

Mr. Brown spoke to him in the hallway, T.B. raised his hand as

if to strike Mr. Brown again.

31. While he waited in Ms. Bridwell's office for the

interview with the police, Mr. Brown had prepar ed a written

statement, which read as follows in its entirety:

At approximately 1:40 p.m. on February 9,

2009, while walking through the hallway I

heard someone call my name. Upon turning

around there were four boys running towards

me. I stopped to find out what was going on

when one of the boys, [T.B.] smacked me on

the top front of my head. He then, when I

told him that it is not a game to hit

anyone, lifted his hand quickly. Not

knowing what he was going to do next I

reacted to his movement and witho ut thought

my hand came in contact with him. I

apologized for my reactionary moments

afterwards, but reiterated that he did not

need to strike an adult playing or

otherwise. While walking away one of the

other three boys, which had a very dark

complexion , was talking with the other two

as though the assault on me was a game. His

words were said while laughing, "Did you see

how [T.B.] smacked Mr. Brown on top of his

shiny bald head?"

3 2 . Because of the consistency of the witness statements,

SRO Carr c oncluded that there was probable cause to arrest

Mr. Brown on a charge of child abuse under s ection 827.03(1)(a),

Florida Statutes. The state attorney ultimately declined to

prosecute the criminal case against Mr. Brown.

33 . Mr. Brown testified at the he aring. He stated that he

usually stands just outside his classroom, B - 9, during change of

class. On the afternoon of February 9, 2011, he walked down the

hallway during change of class because he had heard two students

discussing their plans to beat up a third student in the girls'

locker room. Mr. Brown saw the principal near the area where

the two boys' restrooms meet on the B hallway and told her about

the potential situation in the girls' locker room.

34. After speaking to Ms. Bridwell, Mr. Brown stood

reading a memo in the crossing of the B and the main hallways.

He turned to go back to room B - 9 when he heard someone call his

name. He turned around and saw four or five students rushing at

him. T.B. was in midair and before Mr. Brown could react , T.B.

hit him very hard on the forehead with the heel of his hand.

T.B. then ran down the hallway.

35. Mr. Brown went after T.B. in order to take him to the

office and write a referral for his misbehavior. Mr. Brown

stated that he was concerned for the safety of the other

students. If T.B. was bold enough to hit a teacher in the

middle of the hallway, there was no telling what he might do

next.

36. Mr. Brown testified that T. B. ran away from him down

the main hallway then made a right turn up the A ha llway.

Mr. Brown stated that he followed and upon making his own turn

up the A hallway was startled to see T.B. now running toward

him. T.B. almost ran into Mr. Brown before stopping.

37. Mr. Brown stated, "I'm a grown man. You don't have

any business hitting a grown man, much less anyone else." At

that point, T.B. raised his right hand toward Mr. Brown's head

again. Mr. Brown reflexively moved his own right hand in a

defensive motion and accidentally made contact with T.B.

Mr. Brown testified that h e was not sure where he struck T.B.

38. Mr. Brown's version of the incident directly

contradicts that of Mr. Kiernan, who testified that T.B. was

standing motionless with his hands at his sides as Mr. Brown

spoke to him virtually nose to nose before slapp ing him with his

right hand. Mr. Kiernan's testimony is inherently more credible

than Mr. Brown's, and is supported by the statements of several

other witnesses to the altercation. No one else saw T.B. raise

his hand to Mr. Brown after the initial head r ub witnessed by

all of the students who made statements to the police.

39. Ms. Horne testified that T.B. stopped and walked

toward Mr. Brown, who then proceeded to move the student toward

the lockers. Mr. Kiernan also saw Mr. Brown move T.B. toward

the l ockers. Ms. Horne's and Mr. Kiernan's testimony is

credible on this point. Mr. Brown's testimony that T.B. ran

back toward him and almost collided with him is not credited.

40. Mr. Brown testified that his apologies to Ms. Horne

and Mr. Kiernan were not intended to acknowledge that he had

done anything wrong. He was sorry they had seen the incident

and offered an apology "for peace sake."

41 . During cross - examination, Mr. Brown was asked why he

never wrote a referral on T.B., if his intention from the start

had been to take the student to the office to write a referral.

Mr. Brown responded that no one in the office provided him with

a referral form, and he believed that his direct communication

with Ms. Price and Ms. Bridwell would serve the purpose of a

referral.

42. Mr. Brown testified that his statement to

Ms. Bridwell, "I can't believe it happened again," did not refer

to his own actions in striking a student but to the fact that he

had once again been attacked by a student.

43. Mr. Brown testifie d that at the time he believed the

truth about T.B.'s attack would emerge because of the many

students who witnessed the events in the hallway. He alleged

that some of the witness statements were from students who had

been involved in the attack.

44. Mr. Brown stated that he was not angry or upset during

the incident. He was merely trying to bring T.B. to the office,

after lecturing him about showing proper respect to adults.

45. Mr. Brown's testimony as to the se points of evidence

was not c redible . Th e greater weight of the credible evidence

established that T.B. either rubbed or smacked Mr. Brown's head

as he ran past. Even if T.B. was merely being playful, he

clearly merited a referral for the public disrespect he

displayed toward a teacher. Mr. Br own would have been fully

justified in escorting T.B. to the office for discipline.

46. However, Mr. Brown was angered and embarrassed by

T.B.'s actions. His written statement includes the telling

detail that other students were laughing at him after T.B . hit

him.

47. There was no element of self - defense in Mr. Brown's

actions. There were no exigent circumstances. Mr. Brown knew

there were two other teachers a short distance down the hallway

on whom he could call for help if he believed himself to be in

danger. The evidence is clear that Mr. Brown lost control of

himself and, in full view of two teachers and their students,

cornered T.B. against the lockers, berated him, and slapped him

in the face .

48. R ealizing that he had lost control of himself,

Mr. Brown attempted to make apologies to the adult witnesses.

His distraught demeanor and his statement to Ms. Bridwell w ere

further indication s that Mr. Brown realized he had overreacted

and feared the coming consequences.

49 . Ms. Reynolds testified th at, given the facts of this

case, she would have recommended that Mr. Brown's employment be

terminated even if he had not been suspended in 2009 for

virtually the same conduct.

50 . This incident could not help but effect the way

Mr. Brown is viewed by his peers in the teaching profession and

by the students who are entrusted to his care. His

effectiveness in the classrooms of Fort Caroline has been

irreparably impaired. Further, t he repeat nature of this

violation would understandably make the School Boa r d's

administrators reluctant once again to transfer Mr. Brown in the

mere hope that two such incidents might prompt him to address

his lack of self control with provocative students .

51 . The evidence fully supports the School Board's

preliminary decis ion to terminate Mr. Brown's employment. As

Ms. Reynolds stated, this incident was serious enough to

establish that Mr. Brown should not be in a classroom with

students anymore.

CONCLUSIONS OF LAW

52 . The Division of Administrative Hearings has

jurisdict ion over the parties to and subject matter of this

proceeding pursuant to s ection 120.569 and s ubsections 120.57(1)

and 1012.33(6 )(a), Florida Statutes . 3 /

53 . The School Board has the burden to establish by a

preponderance of the evidence the grounds for disciplining

Mr. Brown . See , e.g. , McNeill v. Pinellas Cnty . Sch . Bd . , 678

So. 2d 476, 477 (Fla. 2d DCA 1996); Sublett v. Sumter Cnty . Sch .

Bd . , 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995); Allen v. Sch .

Bd . of Dade Cnty . , 571 So. 2d 568, 569 (Fla. 3d DCA 1 990); Dileo

v. Sch . Bd . of Dade Cnty . , 569 So. 2d 883, 884 (Fla. 3d DCA

1990).

54 . Under the Tenure Act, Mr. Brown is a tenured teacher

whose employment can be terminated only for "cause." Section 4

of the Tenure Act provides that causes for the discharg e of a

teacher include "persistent violation of or willful refusal to

obey the laws of the State of Florida or regulations adopted by

authority of law, relating to the public schools or the public

school system . "

55. Article V. D. 1 of the CBA, the Progr essive Discipline

Policy, provides as follows, in relevant part:

. . . The following progressive steps must

be followed in administering discipline, it

being understood, however, that some more

severe acts of misconduct may warrant

circumventing the establ ished procedure:

a. Verbal Reprimand

1. No written conference summary is

placed in personnel file

2. Employees must be told that a verbal

reprimand initiates the discipline process

b. Written Reprimand

c. Suspension without Pay

d. Termination

56 . Mr. Brown is an instructional employee as defined by

s ubsection 1012.01(2), Florida Statutes. The School Board has

the authority to suspend or terminate instructional employees

pursuant to s ubsections 1012.22(1)(f) and 1012.33(6)(a), Fl orida

Statutes .

57 . The standard for termination of instructional

personnel is "just cause ," pursuant to s ubsection 1012.33(1)(a),

Florida Statutes. 4 /

58 . Subsection 1012.33(1)(a), Florida Statutes, provides,

in pertinent part:

Just cause includes, but is not limited to,

the following instances, as defined by rule

of the State Board of Ed u cation:

immorality, misconduct in office,

incompetency, two consecutive annual

performance evaluation ratings of

unsatisfactory under s ection 1012.34 , two

annual perf ormance evaluation ratings of

unsatisfactory within a 3 - year period under

section 1012.34 , three consecutive annual

performance evaluation ratings of needs

improvement or a combination of needs

improvement and unsatisfactory under

s ection 1012.34 , gross in subordination,

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.

59 . The School Board in this case has not cited a specific

aspect of the statutory "just cause" definition as the basis for

M r. Brown 's termination. However, the facts alleged in the

Notice would, if proven, amount to "misconduct in office"

constituting just cause to terminate h is e m ployment.

60 . Florida Administrative C ode Rule 6B - 4.009(3) provides:

(3) 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.

61 . Florida Administrative Code Rule 6B - 1.001 provides, in

relevant part:

(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.

62 . Florida Administrative Code Rule 6B - 1.006 provi des, in

relevant part:

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

* * *

(3) Obligation to the student requires that

the individual:

(a) Shall make reaso nable effort to protect

the student from conditions harmful to

learning and/or to the studentÓs mental

and/or physical health and/or safety.

* * *

(e) Shall not intentionally expose a

student to unnecessary embarassment or

disparagement.

63 . By the definition quoted above, "misconduct in office"

consists of a violation " so serious as to impair the

individual's effectiveness in the school system. " Impairment

may be established by direct evidence or may be inferred from

the nature of the violat ion itself. Purvis v. Marion Cnty . Sch .

Bd . , 766 So. 2d 492, 498 (Fla. 5th DCA 2000).

64. The evidence established that Mr. Brown struck a

student in the middle of a crowded hallway for no reason other

than retaliation. The student had embarrassed Mr. B rown in

front of other students in the hallway, and Mr. Brown reacted in

a manner that ensured those students would never again view him

as a responsible adult authority figure. Mr. Brown's actions

undermined the respect of his fellow teachers at Fort Car oline,

who were shocked and appalled at his behavior. Finally, his

actions destroyed the confidence of his superiors, who had given

him a second chance by not terminating his employment after the

2009 incident despite Ms. Reynolds' recommendation.

65. Mr . Brown contended that the student had "attacked"

him, and contended that the School Board was at fault for

failing to train him on how to respond when attacked. The

evidence indicated that the student struck Mr. Brown. However,

Mr. Brown was not under " attack" when he slapped T.B. Every

witness but Mr. Brown agreed that T.B. was standing still while

Mr. Brown administered a scolding, and all were shocked when

Mr. Brown hit T.B. No teacher should require CHAMPS or ICARE

training to know that it is inapp ropriate to strike a student

under the circumstances presented in this case.

66. There is no question in this case that Mr. Brown

failed to exercise the best professional judgment. Mr. Brown

did not make a reasonable effort to protect the student from

c o nditions harmful to the student' s mental health and safety .

Mr. Brown intentionally exposed a student to unnecessary

embarassment.

67. Mr. Brown committed misconduct in office by violating

Florida Administrative Code Rules 6B - 1.001(2) and 6B -

1.006(3)( a)&(e) in a manner so serious as to impair his

effectiveness in the school system.

68. In the alternative, Mr. Brown's actions constitute

grounds for termination of his employment under the Progressive

Discipline Policy of the CBA. In 2009, Mr. Brown rec eived a

fifteen - day suspension without pay . The next step in the

Progressive Discipline Policy is termination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Duval County School Board enter a

f inal order terminating the employment of Michael A. Brown as an

instructional employee of the School Board.

DONE AND ENTERED this 12 th day of September, 2011 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSO N

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12 th day of September , 20 11 .

ENDNOTES

1 / The parties stipulated that this was actually a 15 - day

suspension without pay.

2 / Ms. Reynolds testified that she later initiated a telephon e

meeting with Mr. Brown because he had failed to complete the EAP

program. Mr. Brown offered Ms. Reynolds no explanation for his

failure to follow through on the program.

3 / Unless otherwise indicated, references to the Florida

Statutes are to the 2011 edition.

4 / The C BA , which w as entered as the School Board's Exhibit 27 ,

provides at Article V. C. that employees may be "suspended

with out pay only for just cause and only by action of the School

Board ." Article V.D.7 provides that an employee "may b e

suspended without pay only for just cause and only by action of

the School Board." Though the agreement appears to be silent as

to the standard for termination, it stands to reason that "just

cause" would be required for the ultimate sanction as well as

for the quoted lesser penalties.

COPIES FURNISHED :

David A. Hertz, Esquire

Duval Teachers United

1601 Atlantic Boulevard

Jacksonville, Florida 32207

Derrel Q. Chatmon, Esquire

Office of the General Counsel

City Hall, St. James Building

117 West Duval Street, Suite 480

Jacksonville, Florida 32202

Ed Pratt - Dannals , Superintendent

Duval County School Board

1701 Prudential Drive

6th Floor , Room 642

Jacksonville, F lorida 32207

Lois Tepper, Interim Gen eral Co unsel

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 Rec ommended Order should be filed with the agency that

will issue the Final Order in this case.