12-000808TTS Miami-Dade County School Board vs. Jannett Pusey Status: Closed Recommended Order on Wednesday, December 26, 2012.

Summary: School Board had just cause to suspend without pay for 25 workdays a teacher who, without justification, punched a misbehavng special education student.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 12 - 0808 TTS

)

JANNETT PUSEY, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this ca se

pursuant to sections 120.569 and 120.57(1), Florida Statutes, 1 /

before Stuart M. Lerner, a duly - designated administrative law

judge of the Division of Administrative Hearings (DOAH), on

September 24, 2012, by video teleconference at sites in Miami

and Tallahassee, Florida.

APPEARANCES

For Petitioner: Luis M. Garcia , Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 430

Miami, Florida 33132

For Respondent: Mark S. Herdman, Es quire

Herdman and Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

STATEMENT OF THE ISSUE

Whether Respondent engaged in the conduct alleged in the

Notice of Specif ic C harges, as amended at hearing, and, if so,

whether such conduct constituted " just cause " to suspend her

from her teaching position for 25 workdays without pay .

PRELIMINARY STATEMENT

By letter dated February 16, 2012 , from Miami - Dade County

School Board (Sc hool Board) Administrative Director Ana Rasco,

Ed.D., Respondent was notified that the School Board had taken

action to suspend her from her teaching position at West Hialeah

Gardens Elementary School (WHGES) for 25 workdays ( from February

16, 2012, th roug h March 21, 2012) without pay . Respondent, by

letter dated that same day ( February 16, 2012 ), " request[ed] a

hearing [on the matter] to be held before an administrative law

judge. " Respondent ' s hearing request was referred to DOAH on

March 2, 2012 .

On Ju ly 26, 2012, t he School Board filed a Notice of

Specific Charges, which , in its " Statement of Facts , " alleged

that Respondent had engaged in the following conduct :

8. During her employment with the School

District, Respondent has exhibited behavior

that i llustrates poor judgment.

Specifically, Respondent (a) failed to

strive to achieve or sustain the highest

degree of ethical conduct and integrity,

(b) failed to conduct herself in a manner

that would reflect credit upon herself or

the school system, (c) failed to make every

effort to protect students from conditions

harmful to learning and/or to the students '

mental and/or physical health and/or safety,

and/or (d) failed to use proper measures of

discipline.

9. As a result of Respondent ' s poor

judgment and because her conduct was not in

the best interests of the students,

specifically the elementary school students

to whom she was assigned, the School Board

suspended her for twenty - five (25) workdays

without pay.

10. On or about October 3, 2011, [ 2 / ]

Re spondent committed a battery on a fourth -

grade student (E [.] A [.] ) who was enrolled in

Respondent ' s class; E [.] A [.] suffers from a

Specific Learning Disability. Respondent,

while yelling a t E [.] A [.] and in the

presence of other students and staff ,

punched E [.] A [.] twice in the arm. While

this battery was committed in a common area

of the school, Respondent punched E [.] A [.]

with such force tha t it made a noise, which

was heard by a teacher and students in [an]

adjacent area of the school.

11. Respondent ' s battery on E [.] A [.] was

unprovoked and is in contravention of School

Board Policies.

12. While Respondent was [p]unching

E [.] A [.] , she also used profanity in the

presence of E [.] A [.] and other students in

Respondent ' s class.

13. As a result of Respond ent ' s egregious

act as referenced in paragraphs 10 - 12 above,

E [.] A [.] was physically harmed and began to

cry.

The Notice alleged that, based on these " [f]acts, " Respondent

was guilty of " misconduct in office, " as defined in Florida

Administrative Code Ru le 6B - 4.009(3) (Count I); violated School

Board Policy 3210, Standards of Ethical Conduct (Count II);

violated School Board Policy 3210.01, Code of Ethics (Count

III); and violated School Board Policy 5630, Corporal Punishment

and Use of Reasonable Force ( Count IV) , thus giving the School

Board " just cause " to suspend Respondent .

As noted above, the final hearing in the inst ant case was

held on September 24, 2012 . 3 / Testifying on behalf of the Sc hool

Board were Maria Pineiro , Kristina Pena, C. S., A. M. ,

L. R. T. , E. A. , R. B. , Sharon Gonzalez , and Dr. Jimmie Brown.

The School Board also offered into evidence 23 exhibits (School

Board Exhibits 1 through 23), all of which were received .

Respondent testified on her own behalf. She presented no other

evide nce .

At the conclusion of the hearing, the undersigned

announced, on the record, that the parties would have 10 days

from the date of the filing of the hearing transcript with DOAH

to file their proposed recommended orders. The hearing

Transcript (cons isting of one volume) was filed with DOAH on

November 13, 2012. On November 16, 2012, Petitioner filed an

Unopposed Motion for Extension of Time to File Proposed

Recommended Orders. By Order issued November 20, 2012, the

motion was granted and the propos ed recommended order filing

deadline was extended to December 13, 2012. On December 10,

2012, Respondent f iled a Motion for Extension of T ime to File

Proposed Recommended Orders, which was unopposed. By Order

issued December 11, 2012, the motion was gran ted and the

proposed recommended order filing deadline was further extended

to December 20, 2012.

Respondent and Petitioner timely filed their Proposed

Recommended Orders on December 20, 2012 .

FINDINGS OF FACT

Based on the evidence adduced at hearing, an d the record as

a whole, the following findings of fact are made:

1. The School Board is responsible for the operation,

control, and supervision of all public schools (grades K through

12) in Miami - Dade County, Florida (including, among others,

WHGES ), an d for otherwise providing public instruction to

school - aged children in the county.

2. Among the personnel policies that that the School Board

has adopted to govern the conduct of its personnel working at

these public schools in the county are School Boar d Rule Policy

3210, Standards of Ethical Conduct ; School Board Policy 3210.01,

Code of Ethics ; and School Board Policy 5630, Corporal

Punishment and Use of Reasonable Force.

3. At all times material to the instant case, School Board

Rule Policy 3210 has provided, in pertinent part, as follows:

All employees are representatives of the

District and shall conduct themselves, both

in their employment and in the community, in

a manner that will reflect credit upon

themselves and the school system.

A. An inst ructional staff member shall:

* * *

3. make a reasonable effort to protect the

student from conditions harmful to learning

and/or to the student ' s mental and/or

physical health and/or safety;

* * *

7. not intentionally expose a student to

unnecessary embarrassment or disparagement;

8. not intentionally violate or deny a

student ' s legal rights;

* * *

21. not use abusive and/or profane language

or display unseemly con duct in the

workplace;

4. At all times material to the instant case, School Board

Policy 3210.01 has provided, in pertinent part, as follows:

Each employee agrees and pledges:

A. To abide by this Code of Ethics, making

the well - being of the students a nd the

honest performance of professional duties

core guiding principles.

B. To obey local, State, and national laws,

codes and regulations.

C. To support the principles of due process

to protect the civil and human rights of all

individuals.

D. To treat all persons with respect and to

strive to be fair in all matters.

E. To take responsibility and be

accountable for his/her actions.

F. To avoid conflicts of interest or any

appearance of impropriety.

G. To cooperate with others to protect a nd

advance the District and its students.

H. To be efficient and effective in the

performance of job duties.

* * *

Conduct Regarding Students

Each employee:

A. shall make reasonable effort to protect

the student from condi tions harmful to

learning and/or to the student ' s mental

and/or physical health and/or safety;

* * *

E. shall not intentionally expose a student

to unnecessary embarrassment or

disparagement;

F. shall not intentionally viol ate or deny

a student ' s legal rights. [ 4 / ]

5. At all times material to the instant case, School Board

Policy 5630 has provided as follows:

Teachers or other designated members of the

staff are authorized to control students

assigned to them and shall keep order in the

classroom.

Corporal punishment is strictly

prohibited. [ 5 / ] Comprehensive programs for

alternative discipline include, but are not

limited to, counseling, timeout rooms, in -

school suspension centers, student mediation

and conflict resolution , parental

involvement, alternative education programs,

and other forms of positive reinforcement.

Suspensions and/or expulsions are also

available as administrative disciplinary

actions depending upon the severity of the

misconduct (Policy 5610 ).

Instruc tional and support staff, within the

scope of their employment, may use and apply

reasonable force to quell a disturbance

threatening physical injury to others, to

obtain possession of weapons or other

dangerous objects upon or within the control

of the st udent, in self - defense, or for the

protection of persons or property.

6. Respondent has been employed by the School Board since

1993, initially as a noninstructional employee and then , for

approximately the last 15 years, as an instructional employee.

Sh e presently holds a professional service teaching contract

with the School Board.

7. As an instructional employee of the School Board,

Respondent is a member of a collective bargaining unit

represented by the United Teachers of Dade (UTD) and covered by

a collective bargaining agreement between the School Board and

the UTD (UTD Contract).

8. Article VIII of the UTD Contract addresses the subject

of maintaining a " [s]afe [l]earning [e]nvironment. "

9. Section 3 of Article VIII is entitled, " Physical

Restr aint, " and provides as follows:

Manual Physical Restraint - an emergency

intervention requiring the use of physical

restraint techniques that involve physical

force applied by a teacher or other staff

member to restrict the movemen t of all or

part of the s tudent ' s body when the student

demonstrates behaviors that pose a threat to

the physical safety of themselves or others.

A. There are emergency situations where

students exhibit behaviors that are

disruptive to the learning environment and

pose a threat to the safety of themselves

and other persons.

B. Some special education students because

of the nature of their disability, may, on

occasion, experience impaired impulse

control of such severity that the use of

manual physical restraint is necessary to

prevent such students from inflicting

serious injury or causing the death of self

and/or others.

C. The purpose of manual physical restraint

is to prevent behaviors that pose a clear

and imminent risk of serious injury or death

to the students and others . It is only to

be used in emergency situations when an

immediate and significant threat to the

physical safety of the student and/or others

exists. It is not to be used to " teach a

student a lesson " or as punishment.

D. For students who exhibit such b ehaviors

as aggression or self - injury, the use of

manual physical restraint procedures in

emergency situations shall be discussed as

part of the Individualized Education Plan

(IEP) development, Behavior Intervention

Plan (BIP) development and program revie w

process. A recommendation for the use of

Board approved manual physical restraint

procedures must be made by the Multi -

Disciplinary Team (M - Team) and shall be

documented on the student ' s IEP or BIP form

before the use of such procedures may be

authorize d. When parents or surrogates are

not present at the IEP or BIP meeting,

written notification to them regarding the

use of manual physical restraint will be

provided.

E. Positive Behavioral strategies designed

to increase and maintain appropriate

behavi or while reducing inappropriate

behavior shall be utilized on an ongoing

basis. However, when an explosive event

occurs with or without warning and is of

such degree that the demonstration of

behavior poses a clear threat to the

physical safety of others and/or the student

the use of manual physical restraint

techniques is authorized for such emergency

situations.

F. The Board shall identify personnel to be

trained in manual physical restraint and

maintain a record that includes the names,

dates, and pos itions of the persons trained.

Refresher training is recommended at least

annually for all staff members who have

successfully completed the initial manual

physical restraint training. Training

manuals developed for this purpose are, by

reference, incorp orated and made a part of

this Agreement.

G. Manual physical restraint techniques

provided in training programs approved by

the Board are authorized and, when utilized

in accordance with the training provided and

these guidelines, shall not constitute

gr ounds for disciplinary action.

H. If an employee is faced with emergency

situations where an immediate and

significant threat to the physical safety of

the student and/or others exists, the

employee is authorized to employ the

moderate use of physical f orce or physical

contact as may be necessary to restrict the

movem ent of all or part of a student ' s body.

The use of manual physical restraint

procedures shall not constitute a violation

of the corporal punishment policy (Board

Policy 5630) and shall not constitute

grounds for disciplinary action.

I. Manual physical restraint refers to the

use of physical intervention techniques

designed to restrict the movement of a

student in an effort to de - escalate

aggressive behavior or self - injurious

behaviors. In order to promote a safe

learning environment , the District has

authorized the implementation of specific

manual physical restraint procedures to be

used in Special Education programs when a

student ' s IEP or behavior intervention plan

(BIP) documents the p otential need for their

use. These procedures include, but are

limited to, holding and escape techniques

which, when implemented, prevent injury to

students and staff or prevent serious damage

to property. Specific physical restraint

procedures may also be approved for use with

other specific student populations, upon

mutual agreement of the parties, and would

be reviewed on an annual basis.

J. The use of manual physical restraint

must be documented as a part of the M - DCPS

Use of Manual Physical Restrai nt Incident

Notification and Incident Reporting system.

Instructional or support staff who utilize

manual physical restraint techniques shall

complete forms FM - 7419 and FM - 7421 to record

information regarding each incident.

Directions shall be provided t o

instructional and support staff to assist

them in completing the appropriate form .

Respondent received School Board - provided training on

appropriate manual physical restraint techni ques (which she

learned , through that training, did not include, among o ther

things, punching a student).

10. Article XXI of the UTD Contract addresses the subject

of " [e]mployee [r]ights and [d]ue [p]rocess. "

11. Section 1.A.1. of Article XXI provides that " the

[School] Board and [UTD] recognize the principle of progressiv e

discipline, " that they " agree that disciplinary action may be

consistent with the concept of progressive discipline when the

[School] Board deems it appropriate, " and that " the degree of

discipline shall be reasonably related to the seriousness of the

of fense. "

12. Section 1.B.1.a. of Article XXI provides that " [a]ny

member of the instructional staff may be suspended or dismissed

at any time during the school year, provided that the charges

against him/her are based upon Florida Statutes. "

13. Section 1 .B.2. of Article XXI provides, in part, that

" [d]ismissals and suspensions shall be effected in accordance

with applicable Florida Statutes, including the Administrative

Procedures Act (APA) . . . . "

14. At all times material to the instant case, Sharon

G onzalez and Maria Pineiro were the principal and the assistant

principal, respectively, of WHGES ; Respondent was a teacher at

the school , teaching mathematics to special education students;

and E. A. was a fourth - grade student in a varying

exceptionalities mathematics class taught by Respondent .

15. O n September 27, 2011 , E. A. had a n in - school therapy

ses sion which caused him to be late to Respondent ' s class that

day. The class had already begun when E. A. arrived at the

classroom door. Instead of openi ng the door (which was closed,

but unlocked) and walking into the classroom , E. A. remained

outside in the hallway and started knocking on the classroom

door and on the window adjacent to the door. Respondent

ultimately came to the door (which opened out into the hallway)

and began to open it. E. A. initially tried to block the door

from opening by pushing back against it . When he stopped

pushing and moved away from behind the door, the door swung

open , hitting a wall. Respondent then exited the classro om ,

angrily yelling at E. A. 6 / as she approached him . E. A.

retreated backwards towards a wall until he could retreat no

further . After having cornered E. A. (who posed no threat to

the physical safety of either Respondent, himself, or anyone

else) , a st ill yelling Respondent grabbed him and hit him at

least twice on the arm with closed - fisted jabs , without

justification and in violation of School Board Policies 3210,

3210.01, and 5630 . Thereafter, i n compliance with Respondent ' s

directives, a sobbing E. A. went into the classroom, followed by

Respondent , who slammed the classroom door behind her . 7 /

16. Respondent ' s physical aggression towards E. A. in the

hallway outside of her classroom that day was witnessed by

another teacher at the school, Kristin a Pena. Ms. Pena, along

with a small group of her fourth grade students to whom she was

providing reading instruction, were seated at a table in an

alcove in the hallway . 8 / From her vantage point approximately 15

feet away, she had had a clear view of wh at had happened between

Respondent and E. A. after the door to Respondent ' s classroom

had swung open . 9 / She was quite distressed by what she had seen.

As she explained at hearing, she " did not ever think that [she]

would witness a teacher hitting a child . " 10 /

17. After quieting the children in her class, Ms. Pena

went to the grade level chair to report the incident. The grade

level chair, in turn, contacted the principal, Ms. Gonzalez, who

dispatched the assistant principal, Ms. Pine i ro, to Respondent ' s

classroom.

18. Ms. Pine i ro went immediately to Respondent ' s

classroom. When she entered , E. A. was bent over, holding his

arm, and sobbing. Ms. Pin ei ro then asked Respondent three

times, " w hat ' s going on, " without getting any response from

Responden t . Shortly thereafter, Ms. Gonzalez arrived in the

classroom and was told by Mrs. Pin ei ro that she had been " trying

to find out what [had] happened, but [that Respondent was] not

talking. "

19. Ms. Gonzalez and Ms. Pin ei ro then took E. A. outside

of the classroom and, in response to their questioning, E. A.

told them about Respondent ' s having hit him moments earlier.

Ms. Gonzalez later interviewed Ms. Pena , as well as students in

Ms. Pena ' s class and in Respondent ' s class, about the incident.

20. The matter was ultimately turned over to the School

Board ' s Civil Investigative Unit, which, based on its

investigation, determined that there was probable cause to

support the allegation that Respondent had violated School Board

Rule Polic ies 3210 , 3210.01, a nd 5630 .

21. A conference - for - the - record (CFR) was conducted on

December 15, 2011, by Dr. Jimmie Brown , the District Director of

the School Board ' s Office of Professional Standards. Through

her union representati ve at the CFR, Respondent " de n [ied] all

al legations. "

22. Following the CFR, the Disciplinary Review Team met at

Dr. Brown ' s request, and it recommended that Respondent be

suspended without pay for 25 workdays. The recommendation was

adopted, and Respondent subsequently served the suspension fro m

February 16, 2012, through March 21, 2012 .

CONCLUSIONS OF LAW

23. DOAH has jurisdiction over the subject matter of this

proceeding and of the parties hereto pursuant to chapter 120.

24 . " In accordance with the provisions of s. 4(b) of Art.

IX of the State Constitution, district school boards [have the

authority to] operate, control, and supervise all free public

schools in their respective districts and may exercise any power

except as expressly prohibited by the State Constitution or

general law. " § 1001.32(2).

25 . Such authority extends to personnel matters and

includes the power to suspend and dismiss employees and to adopt

personnel policies. See §§ 1001.42(5), 1012.22(1)(f), and

1012.23(1).

26 . The personnel policies that have been adopted by the

School Board include School Board Rule Polic ies 3210 , 3210.01,

and 5630 , which are set out, in pertinent part, above.

27 . A district school board is deemed to be the " public

employer, " as tha t term is used in chapter 447, p art II, " with

respect to a ll employees of the school district. " § 447.203(2).

As such, it has the right " to direct its employees, take

disciplinary action for proper cause, and relieve its employees

from duty because of lack of work or for other legitimate

reasons, " provided it exercises these powers in a manner that is

consistent with the requirements of law. § 447.209.

28 . At all times material to the instant case, district

school boards have had the right, under section 1012.33(6)(a),

to suspend, for " just cause, " classroom teachers and other

instructional personnel 11 / having professional service contracts.

29 . At all times material to the instant case, " just

cause, " as used in section 1012.33, has been legislatively

defined (in subsection (1)(a) of the statute) to include,

" but . . . not [be] 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. " The " but . . . not

limited to " language makes abundantly clear that the list of

things constituting " just cause " was intended by the Legislature

to be non - exc lusive and that other wrongdoing may also

constitute " just cause " for suspension or dismissal, provided

such wrongdoing is at least of the same seriousness or magnitude

as those misdeeds specifically mentioned in the statute. See

Dietz v. Lee Cnty. Sch. B d. , 647 So. 2d 217, 218 - 19 (Fla. 2d DCA

1994)(Blue, J., specially concurring)( " We assume that

drunkenness and immorality, which are not included in the non -

exclusive list of sins [set forth in section 231.36(1)(a),

Florida Statutes (2001), the predecessor of section

12 / ] would also be

grounds for dismissal. . . . In amending section 231.36 and

creating a new contract status for teachers (professional

service) and by failing to further define just cause, the

legislatur e gave school boards broad discretion to determine

when a teacher may be dismissed during the contract term. . . .

I agree with the majority -- that the legislature left that

determination to the respective wisdom of each school board by

providing no defini te parameters to the term ' just cause. '" );

and Miami - Dade Cnty. Sch. Bd. v. Singleton , Case No. 07 - 0559,

2006 Fla. Div. Adm. Hear. LEXIS 614 *51 (Fla. DOAH Oct. 26,

2006; Miami - Dade Cnty. Sch. Bd. Aug. 10, 2007)( " Neither offense

is specifically mentioned i n [s]ection 1012.33(1)(a), Florida

Statutes, as an example of ' just cause, ' although the statutory

list of such instances, as we have seen, is not intended to be

exclusive. Yet, the doctrine of ejusdem generis , . . . requires

that for ' just cause ' to be f ound based upon an unexemplary

instance, the unexemplary instance must bear a close affinity to

one of the exemplary instances. " ); see also Pro - Art Dental Lab,

Inc. v. V - Strategic Grp., LLC , 986 So. 2d 1244, 1257 (Fla. 2008)

( " [T]he term ' including ' is not one of all - embracing definition,

but connotes simply an illustrative application of the general

principle. " ); and Peninsular Indus. Ins. Co. v. State , 61 Fla.

376, 380 - 381 (Fla. 1911)( " From these statutory provisions it is

clear that the obligation to pay the two per cent tax upon gross

receipts is placed upon ' each insurance company, or association,

firm or individual doing business in this State, including ' some

that are specially enumerated; but such enumeration manifestly

is not complete for the less e xtensive word ' including ' is used

merely as illustrative and not exclusive. " ).

30 . At all times material to the instant case, " m isconduct

in office " was defined " by rule of the State Board of Education "

(specifically Florida Administrative Code Rule 6A - 5. 056

(formerly 6B - 4.009 ) ) 13 / as follows:

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. [ 14 / ]

31 . The Code of Ethics of the Education Profession (as set

forth in Florida Administrative Code Rule 6B - 1.001) has, at all

tim es material to the instant case, provide d as follows:

(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 achie vement

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 educat or 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 memb ers of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

3 2 . Florida Administrative Code Rule 6B - 1.006, which

contains the Principles of Professional Conduct for the

Education Profession in Florida, provides , in pertinent part, as

follows:

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

(2) Violation of any of these principles

shall subject the individual to revocation

or suspension of the individual educator ' s

certificate, or the other penalties as

provided by law.

(3) Obligation to the student requires that

the individual:

(a) Shall make reasonable effort to protect

the student from conditions harmful to

learning and/ or to the student ' s mental

and/or physical health and/or safety.

(b) Shall not unreasonably restrain a

student from independent action in pursuit

of learning.

* * *

(e) Shall not intentionally expose a

student to unnecessary embarrassment or

disparagement.

(f) Shall not intentionally violate or deny

a student ' s legal rights.

(g) 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. [ 15 / ]

33 . As was stated in Miami - Dade Cnty. Sch. Bd. v. Brenes ,

Case No. 06 - 1758, 2007 Fla. Div. Adm. Hear. LEXIS 122 n. 12

**42 - 43 (Fla. DOAH Feb. 27, 2007; Miami - Dade Cnty. Sch. Bd.

Apr. 25, 2007):

Rule [ 6B - plainly requires that a

violation of both the Ethics Code and the

Principles of Profession al Education be

shown, not merely a violation of one or the

other. The precepts set forth in the Ethics

Code, however, are so general and so

obviously aspirational as to be of little

practical use in defining normative

behavior. It is one thing to say, f or

example, that teachers must " strive for

professional growth. " See Fla. Admin. Code

R. 6B - 1.001(2). It is quite another to

define the behavior which constitutes such

striving in a way that puts teachers on

notice concerning what conduct is forbidden.

The Principles of Professional Conduct

accomplish the latter goal, enumerating

specific " dos " and " don ' ts. " Thus, it is

concluded that that while any violation of

one of the Principles would also be a

violation of the Code of Ethics, the

converse is not t rue. Put another way, in

order to punish a teacher for misconduct in

office, it is necessary but not sufficient

that a violation of a broad ideal

articulated in the Ethics Code be proved,

whereas it is both necessary and sufficient

that a violation of a s pecific rule in the

Principles of Professional Conduct be

proved. It is the necessary and sufficient

condition to which the text refers.

34 . " Misconduct in office " may be established in the

absence of " specific " or " independent " evidence of impairment,

but only where the conduct engaged in by the teacher is of such

a nature that it " speaks for itself " in terms of its seriousness

and its adverse impact on the teacher ' s service and

effectiveness. In such cases, proof that the teacher engaged in

the conduc t is also proof of impaired effectiveness. See Purvis

v. Marion Cnty. Sch. Bd. , 766 So. 2d 492, 498 (Fla. 5th DCA

2000); Walker v. Highlands Cnty. Sch. Bd. , 752 So. 2d 127, 128 -

29 (Fla. 2d DCA 2000); and Summers v. Sch. Bd. of Marion Cnty. ,

666 So. 2d 175 , 175 - 76 (Fla. 5th DCA 1995).

35 . " [U]nder Florida law, a [district] school board ' s

decision to [suspend or] terminate an employee is one affecting

the employee ' s substantial interests; therefore, the employee is

entitled to a formal hearing under section 120.57(1) if material

issues of fact are in dispute. " 16 / McIntyre v. Seminole Cnty.

Sch. Bd. , 779 So. 2d 639, 641 (Fla. 5th DCA 2001).

36 . Pursuant to section 1012.33(6)(a), the hearing may be

conducted, " at the district school board ' s election, " either by

the district school board itself or by a DOAH administrative law

judge (who, following the hearing, makes a recommendation to the

district school board).

37 . The teacher must be given written notice of the

specific charges prior to the hearing. See Sc himenti v. Sch.

Bd. of Hernando Cnty. , 73 So. 3d 831, 833 (Fla. 5th DCA

2011)( " When a school board brings a proceeding to discharge a

teacher from her employment, the teacher must have fair notice

and an opportunity to be heard on each of the charges again st

her. " ). Although the notice " need not be set forth with the

technical nicety or formal exactness required of pleadings in

court, " it should " specify the [statute,] rule, [regulation, or

policy] the [district school board] alleges has been violated

and the conduct which occasioned [said] violation. " Jacker v.

Sch. Bd. of Dade Cnty. , 426 So. 2d 1149, 1151 (Fla. 3d DCA

1983)(Jorgenson, J., concurring). The teacher may be suspended,

without pay, pending the outcome of the proceeding; " 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).

38 . At the hearing, the burden is on the district school

board to prove the allegations contained in the notice. The

district s chool board ' s proof need only meet the preponderance

of the evidence standard. See Cropsey v. Sch. Bd. of Manatee

Cnty. , 19 So. 3d 351, 355 (Fla. 2d DCA 2009); Cisneros v. Sch.

Bd. of Miami - Dade Cnty. , 990 So. 2d 1179, 1183 (Fla. 3d DCA

2008 ) ; 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 1990 ) ; and Dileo v. Sch. Bd. of

Dade Cnty. , 569 So. 2d 883, 884 (Fla. 3d DCA 1990 ) . This burden

" is not satisfied by proof creating an equipoise, but it does

not require proof beyond a reasonable doubt. " Dep ' t of HRS v.

Career Serv. Comm ' n , 289 So. 2d 412, 415 (Fla. 4th DCA 1974).

The evidence must m erely " lead[] the factfinder to find that the

existence of [the] contested fact [or facts] is more probable

than its nonexistence. " Smith v. State , 753 So. 2d 703, 704

(Fla. 5th DCA 2000) .

39 . In determining whether the district school board has

met its burden of proof, it is necessary to evaluate its

evidentiary presentation in light of the specific allegation(s)

made in the written notice of specific charges. Due process

prohibits a district school board from disciplining a teacher

based on matters not specifically alleged in the notice . See

Pilla v. Sch. Bd. of Dade Cnty. , 655 So. 2d 1312, 1314 (Fla. 3d

DCA 1995); and Texton v. Hancock , 359 So. 2d 895, 897 n.2 (Fla.

1st DCA 1978); see also Sternberg v. Dep ' t of Prof ' l Reg. , 465

So. 2d 1324, 1325 (Fla. 1st DCA 1985)( " For the hearing officer

and the Board to have then found Dr. Sternberg guilty of an

offense with which he was not charged was to deny him due

process. " ).

40 . In the instant case, the Notice of Specific Charges ,

as amended at hearing, alleg es that " just cause " exist ed to

suspend Respondent from her teaching position for 25 workdays

without pay in that she engaged in " misconduct in office, " as

then de fined by State Board of Education rule, as well as

violat ed School Board Policies 3210, 3210. 01, and 5630 , when, on

September 27, 2012 , at WHGES, " while yelling at E[.]A[.] and in

the presence of other students and staff , " she " [p]unch[ed]

E [.] A [.] " without justification and , as she was doing so, " used

profanity . "

41 . Although its evidentiary pr esentation was insufficient

to prove the allegation that Respondent " used profanity in the

presence of E [.] A [.] and other students, " the School Board did

establish, by a preponderance of the record evidence , that a

yelling Respondent did indeed unjustifiab ly " punch [] E[.]A[.] "

as other students and Ms. Pena looked on.

4 2 . As a result of her having engaged in this conduct,

Respondent was guilty of " misconduct in office, " as then defined

by State Board of Education rule, and of violating School Board

Policie s 3210, 3210.01, and 5630, as alleged in the Notice of

Specific Charges, as amended at hearing . T he School Board th us

ha d " just cause, " as defined in s ection 1012. 33(1)(a) , to

suspend Respondent from her teaching position for 25 workdays

without pay pursu ant to s u bsection (6)(a) of the statute.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that the Miami - Dade County School Board issue a

final order upholding Respondent ' s 25 - workday suspension wit hout

pay for the reasons set forth above.

DONE AND ENTERED this 26 th day of December, 2012 , in

Tallahassee, Leon County, Florida.

S

___________________________________

STUART M. LERNER

Administrative Law Ju dge

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 26 th day of Decemb er, 2012 .

ENDNOTES

1 / Unless oth erwise noted, all references in this Recommended

Order to Florida Statutes are to that version of Florida

Statutes in effect at the time of the occurrence of the

particular event or action being discussed.

2 / At hearing, the School Board requested, and was granted

(without opposition by Respondent), leave to amend this

paragraph of the Notice of Specific Charges to reflect that the

alleged battery on E. A. was committed " on or about September

27, 2011 " (not October 3, 2011).

3 / The hearing was origina lly scheduled for May 1, 2012 (the

earliest date that, according the Joint Response to Initial

Order, both parties were available for hearing), but was

continued three times.

4 / The provisions of School Board Rule Policy 3210 and School

Board Policy 321 0.01 set out above are those that were recited

in the Notice of Specific Charges.

5 / Pursuant to section 1003.32(1)(k)(1), Florida Statutes,

" [t]he use of corporal punishment [in a Florida public school]

shall be approved in principle by the principal be fore it is

used. " " In accordance with the provisions of s. 1003.32,

corporal punishment of a public school student may only be

administered by a teacher or school principal within guidelines

of the school principal and according to district school board

p olicy. " § 1002.20(4)(c)1, Fla. Stat. The School Board ' s

policy with respect to corporal punishment is stated in School

Board Policy 5630 , which provides, in pertinent part, that

" [t]he administration of corporal punishment in Miami - Dade

County Public Sch ools is strictly prohibited. "

6 / The record evidence does not reveal e xactly what she said and

whether she used profanity .

7 / Before returning to the classroom, Respondent had picked up

E. A. ' s book bag from the hallway floor where E. A. had left it

an d flung it into the classroom.

8 / Other students in Ms. Pena ' s class were working individually

at computer stations in the same area of the hallway where this

table was located.

9 / It was the commotion that accompanied the opening of the door

that attr acted Ms. Pena ' s attention to Respondent and E. A.

10 / Aside from Respondent, Ms. Pena was the only adult

eyewitness to testify at hearing. She impressed the undersigned

as a disinterested and reliable witness who testified truthfully

and accurately abou t the events she witnessed. The undersigned

therefore has credited her testimony (and has also credited the

testimony of E. A. and the other student witnesses, to the

extent that their testimony is consistent with Ms. Pena ' s), and

he has rejected as contr ary to the greater weight of the

evidence Respondent ' s uncorroborated, self - serving testimony

that she did not hit E. A., but rather, acting in self - defense,

merely employed a " block[ing] " maneuver when E. A " rais[ed] his

arm as if he was going to hurt [he r], " which resulted in her

having " physical contact " with E. A. See Martuccio v. Dep ' t of

Prof ' l Reg. , 622 So. 2d 607, 609 (Fla. 1st DCA 1993)(although

self - serving nature of testimony given by " [p]ersons having a

pecuniary or proprietary interest in the outcome of litigation "

does not render testimony inadmissible, interest of person in

outcome of case may be considered in evaluating credibility of

testimony); and Asan v. U.S. , Case No. 11 Civ. 5370 (CSH), 2012

U.S. Dist. LEXIS 163524 *42 (S.D. N.Y. Nov. 14, 2012)( " Where

there are factual disputes, the Court resolves them by applying

the usual time - tested criteria: the credibility of the

witnesses, the presence or absence of corroborating evidence,

the inherent plausibility or implausibility of one versio n of

facts or the other -- all viewed within the totality of the

evidence in the record. " ).

11 / Pursuant to section 1012.01(2), the term " instructional

personnel, " as used in section 1012.33, includes " classroom

teachers. "

12 / " Immorality " was added to th e " non - exclusive list of sins "

in section 1012.33(1)(a) by section 28 of chapter 2008 - 108, Laws

of Florida, effective July 1, 2008.

13 / This rule " define[d] " the " basis for charges upon which

dismissal action against instructional personnel could be

pursu ed. "

14 / The current version of Florida Administrative Code Rule 6A -

5.056 is inapplicable to the instant case because it took effect

July 8, 2012, after Respondent ' s alleged misconduct. See

Anglickis v. Dep ' t of Prof ' l Reg. , 593 So. 2d 298, 300 (Fla. 2d

DCA 1992) ( " [T] his rule was not in effect at the time of the

audit; therefore, appellants cannot be found to have violated

this rule. " ); and Dep ' t of Bus. & Prof ' l Reg. v. Aleong , Case

No. 10 - 2388PL, 2010 Fla. Div. Adm. Hear. LEXIS 1005 *23 (Fla.

DOAH 2010) , adopted in pertinent part , Case No. 2006 - 022640

(Dep ' t of Bus. & Prof ' l Reg. July 5, 2011)( " This version of the

rule is inapplicable to the instant case, however, as it was not

in effect at the time Respondent committed the charged

offense. " ).

15 / These are the only " principles " Respondent is alleged, in

the Administrative Complaint, to have violated.

16 / " A county school board is a state agency falling within

[c]hapter 120 for purposes of quasi - judicial administrative

orders. " Sublett v. Dist. Sch. B d. of Sumter Cnty. , 617 So. 2d

374, 377 (Fla. 5th DCA 1993); see also Sch. Bd. of Palm Beach

Cnty. v. Survivors Charter Sch., Inc. , 3 So. 3d 1220, 1231 (Fla.

2009)( " No one disputes that a school board is an ' agency ' as

that term is defined in the APA. " ); V olusia Cnty. Sch. Bd. v.

Volusia Homes Builders Ass ' n , 946 So. 2d 1084, 1089 (Fla. 5th

DCA 2006)( " [T] he School Board is an agency subject to the

Administrative Procedure Act. " ); and Witgenstein v. Sch. Bd. of

Leon Cnty. , 347 So. 2d 1069, 1071 (Fla. 1st DCA 1977) ( " It was

obviously the legislative intent to include local school

districts within the operation of [c]hapter 120. " ).

COPIES FURNISHED:

Luis M. Garcia, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 430

Miami, Florida 33132

Mark S. Herdman, Esquire

Herdman and Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Cl earwater, Florida 33761

Alberto M. Carvalho, Superintendent

Miami - Dade County School Board

1450 Northeast Second Avenue

Miami, Florida 33132 - 1308

Dr. Ton y Bennett , Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Str eet

Tallahassee, Florida 32399 - 0400

Lois Tepper , Interim General Counsel

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 recommended order should be filed with the agency that

will issue the final order in this case.