11-002592TTS Miami-Dade County School Board vs. Louis Depriest Status: Closed Recommended Order on Monday, November 28, 2011.

Summary: Petitioner school board failed to prove, by a preponderance of the evidence, that Respondent teacher violated school board rules. Respondent's suspension should be rescinded and Respondent is entitled to payment of back salary.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 11 - 2592 TTS

)

LOUIS DEPRIEST, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was conducted in this case pursuant to

sections 120.569 and 120.57(1), Florida Statutes, before

Administrative Law Judge Cathy M. Sellers of the Division of

Administrative Hearings on September 15 , 2011. The hearing was

held by video telec onference at sites in Miami and Tallahassee.

APPEARANCES

For Petitioner: Tedra Joy Gadson, Esquire

School Board of Miami - Dade County

1450 N ortheast Second Avenue

Suite 400

Miami , Florida 33 132

For Respond ent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 , North

Suite 110

Clearwater , Florida 33761

S TATEMENT OF THE ISSUE

The issue is whether Respondent violated specified Miami -

Dade County School Board rules , giving Petitioner just cause to

suspend Respondent for five work days without pay .

PRELIMINARY STATEMENT

On May 11, 2011, Miami - Dade County School Board

( " Petitioner " ) took action to suspend Louis DePriest

( " Respondent " ) for five school days without pay for alleged

violation of School Board Rules 6Gx13 - 4A - 1.21 ( " Responsibilities

and Duties " ) and 6Gx13 - 4A - 1.213 ( " Code of Ethics " ).

Respondent timely requested an administrative hearing

pursuant to sections 120 .569 and 120.57(1) , and this matter was

referred to the Division of Administrative Hearings

( " Division " ). Petitioner ' s Notice of Specific Charges was filed

on August 10, 2011. The parties filed a Joint Prehearing

Stipulation on September 7, 2011.

The final hearing was conducted on September 15, 2011. At

the hearing, Petitioner presented the testimony of Milagros

Hernandez, Michael Tandlich, A.S., and J.C. Petitioner offered

Exhibits 1 through 9 for admission into evidence. Petitioner ' s

Exhibits 1 t hrough 4 and 6 through 9 were admitted without

objection; Petitioner ' s Exhibit 5 was admitted over objection.

Respondent presented the testimony of Dr. Angela Thomas Dupree

and J.G., and testified on his own behalf. Respondent did not

offer any exhibits for admission into evidence.

The one - volume Transcript was filed with the Division on

October 24, 2011. The parties ' Proposed Recommended Orders were

filed on November 3, 2011, and were considered in preparing this

Recommended Order.

FINDINGS OF FACT

I. The Parties

1. Petitioner is a school board charged with the duty to

operate, control, and supervise all free public schools within

the school district of Miami - Dade County, pursuant to a rticle

IX, section 4(b) of the Florida Constitution, and section

1012.23, Florida Statutes. 1 /

2. Respondent is a 27 - year teacher employed by the Miami -

Dade County Public Schools ( " M - DCPS " ). For the first 24 years

of his career, Respondent taught adult vocational classes. For

the past three years, Respondent has tau ght at Miami Lakes

Educational Center ( " Miami Lakes " ). He is a television

production teacher, teaching students entry - level television

production skills to prepare them for careers in the television

industry.

II. Background of this Proceeding

3. At al l times material, Respondent ' s employment was

governed by the collective bargaining agreement between M - DCPS

and the United Teachers of Dade, Petitioner ' s rules and

policies, and Florida law.

4. This matter had its genesis in late 2010, when two or

three female students complained to Miami Lakes Assistant

Principal Michael Tandlich that they felt uncomfortable in

Respondent ' s classroom, specifically because Respondent touched

them.

5. In response to the complaints, Mr. Tandlich took

written statements from approximately ten students in

Respondent ' s class. 2 / He took the statements to the Miami Lakes

principal . As a result, the school initiated an investigation

of Respondent ' s actions regarding the students in his class.

6. Once the investigation was complete, the matter was

referred to Petitioner ' s Office of Professional Standards

( " OPS " ) for a comprehensive review of all information related to

the matter.

7. On March 1, 2011, Milagros Hernandez, District Director

for OPS, sent Respondent a lette r stating that as a result of

the investigation, " [t]he initial investigative findings

indicate that Probable Cause has been established for the

allegation of violation of School Board Rule 6Gx13 - 4.109 ,

Employee Student Relationships. Probable cause is de fined as

' [b]ased upon an evaluation of the evidence, it is more likely

than not the alleged act occurred. '"

8. On March 8, 2011, OPS conducted a Conference - for - the -

Record ( " CFR " ) . Respondent and Ms. Hernandez were among the

attendees. The CFR is a fact - finding conference held to discuss

the incident and to afford the subject of the investigation the

opportunity to tell his or her side of the story.

9. Following the CFR, OPS sent a letter to Respondent,

dated May 4, 2011, advising him that OPS recommended that he " be

suspended without pay for 5 workdays for violation of School

Board Rules 6Gx13 - 4A - 1.21 , Responsibilities and Duties, and

6Gx13 - 4A - 1.213 , Code of Ethics . . . . "

10. On May 11, 2011, Petitioner suspend ed Resp ondent for

five work days without pay for alleged violation of the above -

stated rules. 3 /

III. Incidents Giving Rise to Alleged Violations

11. A.S. is a female student in Respondent ' s television

production class . She is in her junior year of high school at

Miami Lakes. A.S. testified that Respondent touched her on the

shoulders on more than one occasion, the touching made her feel

uncomfortable , and she told him to stop. On one occasion when

Respondent touched her on the shoulders, A.S. yelled at

Respo ndent , " S top touching me, you pedophile ! " or something to

that effect. She testified that Respondent did not touch her on

any part of her body other than her shoulders , and has stopped

touching her .

12. Testimony was elicited from A.S. and another stu dent,

J.G., establishing that A.S. is overly - dramatic , blows things

out of proportion , and acts out in class in order to be the

center of attention . The evidence also established that A.S.

may have some animus toward Respondent because he is much

stricter and has set much higher academic and behavioral

standards than did his predecessor, and does not tolerate A.S ' s

disruptive behavior in class.

13. J.C. is a female student in Respondent ' s class, and is

A.S. ' s friend. She is in her junior year of high school at

Miami Lakes. J.C. testified that Respondent sometimes touched

her on the shoulders , and that once, Respondent touched her

dress at about mid - thigh level . T he touching made her

uncomfortable , but she never asked him to stop. R espo ndent did

not touch her on any other part of her body. She acknowledged

that Respondent ' s conduct likely was meant as complimentary and

encouraging.

14. J.C. testified that Respondent had made the class much

more demanding than had his predecessor, and that her classmates

and friends had discussed their unhappiness with the change.

She acknowledged that around that time, some students went to

the assistant p rincipal and complained that Respondent was

touching students and making them feel uncomfortable.

1 5 . J.G. is a male student in Respondent ' s class. J.G.

testified that Respondent is a very strict teacher and that his

class is very demanding " in a goo d way. " J.G. testified that

Respondent is very respectful of his students and encourages

them during class, verbally and by patting them on the back or

touching them on the shoulders. He treats male and female

students the same in that regard. J.G. has never seen

Respondent touch any of his students, male or female , in an

inappropriate manner . J.G. stated that Respondent is a very

professional teacher.

1 6 . Respondent also presented the testimony of Dr. Angela

Thomas Dupree, Vice Principal at Lindsay Hopkins Technical

Education Center. Before assuming her current position, Dr.

Dupree served at Miami Lakes for 12 years as an a ssistant

p rincipal and a v ice p rincipal. For approximately ten of her 12

years at Miami Lakes, she worked with Respondent as his direct

supervisor and observed Respondent interacting with his

students. She testified that he was very knowledgeable and

always engaged in the classroom, and that he treated students

with respect and dignity. She never observed, and was not aware

of , any instances in which Respondent did not honor the

integrity and retain the respect of his students. D uring her

time in working with Respondent, he always c onducted himself in

a manner that reflect ed credit on him and on the school system.

1 7 . Respondent testified o n his own behalf. Respondent ' s

goal in teaching the television production class is to prepare

his students to enter the workforce in the television production

industry. His classes are structured according to the grade

level of the students in the class. For his higher level

classes (i.e., junior and senior classes) , students are given

assignments for the day, then move into different are as to work

on the ir specific assignments. Respondent supervises the

students by walking back and forth between the work areas to

make sure everyone is on task. One studio is very small, so it

is not unusual for Respondent to walk up behind students when

they are working and to touch them as he is showing them how to

perform a task or use the computer. Respondent also encourages

his students , verbally , by patting them on the back or touching

their shoulders, and by giving them " high fiv e . "

18. Responden t testified that in one of his college

communication course s , there was discussion about the importance

of " breaking the shield " that each person has , in order to

enhance interpersonal communicat ion . Respondent noted that is

often why people shake hands. Respondent testified that he

tries to " break the shield " with his students, in part by

touching them , in order to more effectively communicate with

them . T ouching always has been a part of the way Respondent

teaches and conducts his class, until this inc ident.

19 . Respondent testified that he did touch A.S. on her

shoulder s . On the day on which A.S. called Respondent a

" pedophile, " A.S. had been doing her homework for another class

while in Respondent ' s class, and Respondent had asked her to

stop. She ignored Respondent ' s request. Respondent was

lecturing and walking around the studio , and t he students '

chairs and desks were arranged in the middle of the studio. As

Respondent was walking around the studio, he observed A.S.

continuing to do her hom ework despite being asked to stop. He

walked up behind her and put his hand s on her shoulder s to get

her to stop. A.S. jumped up and yelled at him . Respondent

testified that he touched A.S. on her shoulders , and , on another

occasion , may have touched he r hair, but that he did not touch

her on any other part of her body.

2 0 . Respondent recall ed touching J.C. ' s dress. On the day

in question, the students were wearing professional clothing,

rather than their usual uniforms, as part of a " d ress ing for

s uccess " program being conducted at the school . Respondent was

sitting down and J.C. was standing next to him . He touched the

skirt of her dress and complimented her on her appearance.

Respondent testified that he only meant to compliment her, and

that s he did not appear to be uncomfortable.

2 1 . Respondent testified that he never has inappropriately

touched students , and that when he has touched students , it has

never been with intent to do anything wrong. He acknowledged

that he understands the difference between touching adult

students and minor students while encouraging them in their

class work .

2 2 . Assistant Principal Michael Tandlich testified that

Petitioner ' s policy is to prohibit the touching of students in

any way; h owever, Mr. Tandlich was unable to identify any su ch

policy or provision in Petitioner ' s rules . He also testified

that he and the teachers at Miami Lakes routinely touch

students ÏÏ which he acknowledged would constitute widespread

violation of such a policy , if one existed. Finally, he

testified that he considers touching of students other than a

handshake to be inappropriate ÏÏ contradicting his previous

testimony that there is an absolute prohibition on touching

students.

2 3 . M r. Tandlich testified that teachers are informed , in

the first meeting with school administration personnel at the

beginning of the school year , regarding Petitioner ' s policies.

However, Respondent credibly testified that he never was told

that all touching of students is prohibited. 4 /

IV. Rules 6Gx13 - 4A - 1.21 and 6Gx13 - 4A - 1.213

24. Petitioner ' s r ule 6Gx13 - 4A - 1.21 , " Responsibilities and

Duties, " 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 matter

that will reflect credit upon themselves and

the school system.

Unseemly conduct or the use of abusive or

profane language in the workplace is

expressly prohibited.

2 5 . Petitioner ' s r ule 6Gx - 4A - 1.213, " Code of Ethics, "

provides in pertinent part:

I. INTRODUCTION

As stated in the Code of Ethics of the

Education Profession in Florida (State Board

of Education Rule 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.

3. Aware of the importance of maintaining

the respect and confidence of one ' s

colleagues, students, parents, and other

members of the community, the educator

stri ves to achieve and maintain the highest

degree of ethical conduct.

* * *

III. FUNDAMENTAL PRINCIPLES

The fundamental principles upon which this

Code of Ethics is predicated are as follows:

* * *

Cooperation Ï Working together toward goals

as basic as hu man survival in an

increasingly interdependent world.

Kindness Ï Being sympathetic, helpful,

compassionate, benevolent, agreeable, and

gentle toward people and other living things

Pursuant of Excellence Ï Doing your best

with the talents you have, strivi ng toward a

goal, and not giving up.

Respect Ï Showing regard for the worth and

dignity of someone or something, being

courteous and polite, and judging all people

on their merits. It takes three major

forms: respect for oneself, respect for

other peopl e, and respect for all forms of

life and the environment.

* * *

Each employee agrees and pledges:

1. To abide by this Code of Ethics, making

the well - being of the students and the

honest performance of professional duties

core guiding principles.

2. To obey local, state and national laws,

codes and regulations.

3. To support the principles of due process

to protect the civil and human rights of all

individuals.

4. To treat all persons with respect and

strive to be fair in all matters.

5. To take responsibility and be

accountable for his or her actions.

6. To avoid conflicts of interest or any

appearance of impropriety.

7. To cooperate with others to protect and

advance the District and its students.

8. To be efficient and effective in the

d elivery of job duties.

* * *

V. CONDUCT REGARDING STUDENTS

As set forth in the Principles of

Professional Conduct for the Education

Profession in Florida, each employee:

1. Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the student ' s mental or

physical health and/or safety.

2. Shall not unreasonably restrain a

student from independent action in pursuit

of learning.

3. Shall not unreasonably deny a student

access to diverse points of view.

4. Sha ll not intentionally suppress or

distort subject matter relevant to a

student ' s academic program.

5. Shall not intentionally expose a student

to unnecessary embarrassment or

disparagement.

6. Shall not intentionally violate or deny

a student ' s legal ri ghts.

7. Shall not harass or discriminate against

any student on the basis of race, color,

religion, sex, age, national or ethnic

origin, political beliefs, marital status,

handicapping condition, sexual orientation,

or social and family background and shall

make reasonable effort to assure that each

student is protected from harassment or

discrimination.

8. Shall not exploit a relationship with a

student for personal gain or advantage.

9. Shall keep in confidence personally

identifiable information obtained in the

course of professional service, unless

disclosure serves professional purposes or

is required by law.

V. Findings of Ultimate Fact

2 6 . The plain language of the se rules do es not absolutely

prohibit touching students , and the evidence do es not establish

the existence of an implicit prohibition in the rules. Mr.

Tandlich ' s testimony was Petitioner ' s sole evidence of a " no

touching " policy; however, that testimony was inconsistent and

unpersuasive. Petitioner failed to establish that it has a

policy absolutely prohibit ing the touching of students.

A ccordingly, the question is whether , under the circumstances,

Respondent ' s touching of students violated the standards

expressly stated in r ule 6Gx13 - 4A - 1.21 or 6Gx13 - 4A - 1.21 3.

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

2 7 . T here is no allegation or evidence in the record that

Respondent used profane or abusive language . Therefore, the

question whether Respondent violated this rule turns on whether

his conduct was " unseemly. " The rule does not define the term

" unseemly conduct. " However, case law has interpreted this term

as meaning inappropriateness manifesting indecency, bad taste,

or poor form. Miami - Dade County Sch. Bd. v. DePalo , Case No.

03 - 3242 (Fla. DOAH May 20, 20 04; Miami - Dade Cnty . Sch. Bd.

July 15, 2004). The evidence does not establish that

Respon dent ' s conduct was " unseemly . "

28. With respect to A.S., on the day she called Respondent

a " pedophile, " he had touched her shoulders in an effort to make

her stop doing something that he specifically had told her not

to do. Respondent ' s touching of A.S. ' s shoulders was justif ied

under these circumstances. 5 /

29. With respect to J.C., Respondent touched her dress in

connection with paying her a compliment on a day when the

students were dressed to present a professional appearance .

Respondent ' s touching was meant to encourage and compliment

J.C. , and, in fact, she acknowledg ed this .

30 . T o the extent Respondent may have touched A.S. and

J.C. on other occasions, he did not touch them in a manner

different from the way he touches any other student . The

competent evidence in the record shows that when Respondent

t ouch ed students, he did so in a manner that specifically was

intended to encourage or compliment them, or instruct them in

the performance of their class work.

31. U nder these circumstances, Respondent ' s conduct was

not inappropriate, indecent, or in po or taste, and, therefore

was not " unseemly. " 6 / Accordingly, Petitioner did not establish,

by a preponderance of the evidence, that Respondent violated

r ule 6Gx 13 - 4A - 1.21.

B. Rule 6Gx13 - 4A - 1.213, Code of Ethics

3 2 . The evidence also establishes that Respondent abided

by, and did not violate, the applicable provisions of rule

6Gx13 - 1.213, the Code of Ethics.

3 3 . With respect to the applicable " Fundamental

Principles " rule provisions, as discussed above, t he evidence

shows that Resp ondent makes the well - being of his students and

the honest performance of his professional duties his core

guiding principles ; that he treats his students fairly and with

respect ; and that he is, and strives to be, a very effective

teacher. The evidence d oes not show that Respondent ' s

effectiveness in the school system has been impaired by this

incident.

3 4 . With respect to the " Conduct Regarding Students " rule

provisions, Petitioner did not present any credible , persuasive

evidence establishing that Respondent failed to make reasonable

effort to protect students from conditions harmful to learning

and/or to the student ' s mental and/or physical health , or th at

he is an ineffective teacher. To the contrary, the evidence

shows that Respondent is an engaged, effective teacher, who sets

high standards for his students, expects those standards to be

met, and does not countenance disruptive behavior .

3 5 . There is no credible or persuasive evidence

establishing that Respondent intentionally exposed stu dents to

unnecessary embarrassment or disparagement. The evidence

establishes that Respondent ' s touching always was intended to

encourage, compliment, and instruct students, and to enhance

communication with them as part of being an engaged and

effective teacher.

36. There was no credible, persuasive evidence presented

establishing the Respondent violated any other provisions of

r ule 6Gx13 - 4A - 1.213.

3 7 . Based on the competent substantial evidence in the

record , the undersigned finds, as a matter of u ltimate fact,

that Respondent did not violate Petitioner ' s r ule 6Gx13 - 4A - 1.21

or 6Gx13 - 4A - 1.21 3 . 7 /

CONCLUSIONS OF LAW

3 8 . The Division has jurisdiction over the parties and

subject matter of this proceeding , pursuant to s ections 120.569

and 120.57(1).

3 9 . This is a penal disciplinary proceeding brought

pursuant to section 1012.33, Florida Statutes, and Florida

Administrative Code Rules 6B - 4.009 , 6B - 1.001, and 6B - 1.006, to

uphold Respondent ' s suspension from employment for five days

without pay, for alle ged violations of Petitioner ' s r ules 6Gx13 -

4A - 1.21 and 6Gx13 - 4A - 1.213. P etitioner bears the burden to

prov e each element of each charged offense by a preponderance of

the evidence . See McNeill v. Pinellas C n ty . Sch . B d. , 678 So.

2d 476 (Fla. 2d DCA 1996); Allen v. Sch . Bd . of Dade Cnty . , 571

So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v. Sch . Bd . of Lake

Cnty . , 569 So. 2d 883 (Fla. 3d DCA 1990).

40 . A ny member of the instructional staff in a district

school system may be suspended or dismissed at any time during

the term of his or her employment contract for just cause, as

pro vided in section 1012.33(1)(a). § 1012.33(6)(a), Fla. Stat.

4 1 . " J ust cause " is defined to include misconduct in

office. 8 / § 1012.33(1)(a), Fla. Stat. " Misconduct in o ffice " is

defined as " a violation of . . . Rule 6B - 1.001, F.A.C., and

. . . 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).

4 2 . Rule s 6B - 1.001 9 / and 6B - 1. 006(3) 10 / have been

incorporated into Petitioner ' s rule 6Gx13 - 4A - 1.21 . Therefore,

f or Petitioner to establish " just cause " as defined in section

1012.33, to suspend Respondent from his employment, Petitioner

must demonstrate, by a preponderance of the evidence, that

Respondent violated these rules.

4 3 . It is well - established that whether a particular

action constitutes a deviation from a standard of conduct

established by rule or statute is a ques tion of fact to be

decided by the trier of fact, considering the testimony and

evidence in the context of the alleged violation. Langston v.

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

Turlington , 480 So. 2d 150, 153 (Fla. 1 st DCA 1985). See also

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

MacMillan v. Nassau Cnty . Sch . Bd. , 629 So. 2d 226 (Fla. 1 st DCA

1993). Accordingly, whether Respondent ' s conduct violated

Petitioner ' s rules is a fact ual , not legal , determination. 11 /

4 4 . As discussed above, Petitioner did not establish, by a

preponderance of the evidence, that Respondent violated

Petitioner ' s r ules 6Gx13 - 4A - 1.21 and 6Gx13 - 4A - 1.213.

4 5 . Accordingly, Petitioner did not establish, by a

preponderance of the evidence in the record, that just cause

exists under section 1012.33 and rules 6B - 4.009 , 6B - 1.001, and

6B - 1.006, to suspend Respondent from his employment for five

days without pay.

4 6 . Therefore, Petitioner should enter a Final Order

rescinding the suspension of Respondent from his employment for

five days without pay and paying Responde nt his back salary ,

pursuant to section 1012.33 , for the five - day period for which

he was suspended .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

enter a Final Order rescinding the suspension of Respondent from

his employment for five days without pay , and paying

RespondentÓs back salary for the five - day period for which he

was suspended .

DONE AND ENTERED this 2 8th day of November 2011, in

Tallahassee, Leon County, Florida.

S

CATHY M. SELLERS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

This 28 t h day of November, 2011.

ENDNOTES

1 / Unless otherwise noted, all references are to 2010 Florida

Statutes.

2 / Mr . Tandlich testified that he took written statements from a

cross - section of the students in Respondent's class based on

gender and race.

3 / Respondent served his suspension between May 12, 2011, and

May 18, 2011.

4 / Petitioner ' s Exhibit 4 , Respondent's signed certification

that he received a copy of Petitioner's Code of Ethics, was

offered to show Respondent received notice, at the beginning of

the 2010 - 2011 school year , of a " no touching policy. " However,

that exhibit is dated August 201 1 ÏÏ after the incidents that

precipitated this matter occurred . Accordingly, Exhibit 4 is

not probative to whether Respondent received notice of a "no

touching policy ÏÏ to the extent one were to exist in Petitioner's

Code of Ethics ÏÏ during the timeframe relevant to this

proceeding .

5 / The persuasiveness of A.S.'s testimony is diminished in light

of credible , persuasive testimony establishing that she may have

held animus toward Respondent for his lack of tolerance for her

disruptive classroom behavior.

6 / Rule 6Gx13 - 4A - 1.21 also states that employees are expected to

conduct themselves in a manner that will reflect credit on

themselves and the school system. To the extent this provision

constitutes a regulatory standard rather than an aspirational

go al, the evidence does not support a finding that Respondent

engaged in conduct that does not reflect credit on himself and

the school system.

7 / Whether a particular action constitutes a deviation from a

standard of conduct established by rule or stat ute is a factual

question to be decided by the trier of fact, considering the

testimony and evidence in the context of the alleged violation.

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

8 / "Just cause" also includes immorality, incompet ency, gross

insubordination, willful neglect of duty, or being convicted or

found guilty of, a entering a plea of guilty to, regardless of

adjudication of guilt, any crime involving moral turpitude.

§ 1012.33(1)(a), Fla. Stat. These terms are defined in rule 6B -

4.009. Petitioner did not specifically identify which of these

it asserts constitutes "just cause" for Respondent's suspension,

but the only one that appears applicable under the circumstances

is "misconduct in office."

9 / This rule is incorporated into rule 6Gx13 - 4A - 1.21, section

III., Fundamental Principles.

10 / This rule is incorporated into rule 6Gx13 - 4A - 1.21, section

V. , Conduct Regarding Students.

11 / Because whether an action deviated from a standard of conduct

e stablished by statute or rule is an issue of ultimate fact,

case law holding that the construction of a regulation by the

agency charged with its enforcement and interpretation is

entitled to great deference does not control in this case.

Langston v. Jame rson , 653 So. 2d 489, 491 (Fla. 1 st DCA

1995)(rejecting the agency's argument that it was not bound by

the hearing officer's findings regarding alleged violations of

education profession rules because such determinations were

matters of law, not fact). Mo reover, even if such case law were

pertinent to this case, Petitioner's interpretation of its rules

as establishing an absolute prohibition on all touching of

students is unreasonable and clearly erroneous as unsupported by

the plain language of the rules. Under these circumstances,

PetitionerÓs interpretation is not entitled to deference. See

id . at 490 - 91.

COPIES FURNISHED :

Mark S. Herdman, Esquire

Herdman and Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

Teddra Joy Gadson, Esquire

Miami - Dade County Public Schools

1450 Northeast Second Avenue, Suite 430

Miami, Florida 33132

Alberto M. Carvalho, Superintendent

Miami - Dade County Public Schools

1450 Northeast Second Avenue, Suite 430

Miami, Florida 33132

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 224

325 W. Gaines Street

Tallahassee, Florida 32399 - 0400

Charles M. Beal, General Counsel

Department of Education

Turlington Building, Suite 1244

325 W. Gaines Street

Tallahassee, Florida 32399 - 0400

Gerard Robinson, Commissioner

Department of Education

Turlington Building, Suite 1514

325 W. 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.