12-001067TTS Monroe County School Board vs. Janet Faber Status: Closed Recommended Order on Wednesday, July 25, 2012.

Summary: School Board did not prove that teacher administered corporal punishment to or roughly handle five-year old special needs student. Teacher should be reinstated with back pay and appropriate benefits.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MONROE C OUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 1 2 - 1067 TTS

)

J ANET FABER , )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was

conducted by video teleconference between Key West and

Tallahassee, Florida, on May 31, 2012, before Administrative Law

Judge Claude B. Arrington of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Pe titioner: Theron Coleman Simmons, Esquire

Vernis and Bowling of the

Florida Keys, P.A.

3rd Floor

81990 Overseas Highway

Islamorada, Florida 33 036

For Respondent: Mark Herdman, Esquire

Herdman and Sakellarides, P.A.

Suite 110

29605 U.S. Highway 19, North

Clearwater, Florida 33761

STATEMENT OF THE ISSUE

Whether Respondent committed the acts alleged in the

Administrative Complaint filed with DOAH on March 21, 2012, and,

if so, the discipline that should be imposed against

Respondent's employment.

PRELIMINARY STATEMENT

By letter dated February 21, 2 012, the Monroe County School

District Superintendent of Schools (Superintendent) informed

Respondent that he was going to recommend that the Monroe County

School Board (School Board) terminate Respondent's employment as

a teacher in its Exceptional Student Education (ESE) Program.

Respondent, through her union representative, requested a

hearing. The Administrative Complaint was dated February 21,

2012. On February 28, 2012, the School Board voted to suspend

Respondent's employment without pay pen ding resolution of this

proceeding before DOAH. 1 / The matter was thereafter referred to

DOAH, and this proceeding followed.

The Administrative Complaint alleged that Respondent struck

a 5 - year - old special needs student (the Student) while teaching

on Dece mber 7, 2011, and that she was seen "handling [the

Student] roughly" between November 30 and December 7 , 2011 .

Based on those allegations, Petitioner alleges that Respondent

violated its policy against corporal punishment and its

standards of ethical cond uct. The Administrative Complaint does

not allege that the violations constituted misconduct in office

or any other grounds for discipline enumerated in section

1012.33(1), Florida Statutes (2012). Unless otherwise noted,

each reference to a statute is t o Florida Statutes (201 2 ), and

each reference to a rule is to the rule as published in Florida

Administrative Code as of the date of this Recommended Order.

At the final hearing, Petitioner presented the testimony of

Cheryl Allen (Petitioner's Human Resour ces Director), Harry

Russell (school principal), Linda Diaz (assistant school

principal), and Charity King (classroom teacher). Petitioner's

pre - marked E xhibits 1 - 7, 9, 10, 13, 14, 15 (first four pages

only), and 17 - 2 2 were admitted into evidence. Among

Petitioner's E xhibits were depositions of the following:

Mr. Russell, Ms. Diaz, Theresa Axford (Petitioner's Executive

Director of Operations) , the Student's mother, the Student's

father, and Respondent.

Respondent testified on her own behalf and presented the

additional testimony of Rececca Rollason (a paraprofessional).

Respondent presented one composite E xhibit, which was admitted

into evidence.

A Transcript of the proceedings, consisting of one - volume ,

was filed on June 18, 2012 . On the unopposed motion of the

School Board, the deadline for the filing of proposed

recommended orders was extended to July 9, 2012. Each party

filed a Proposed Recommended Order, and both have been duly

considered by the u ndersigned in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Petitioner was the

constitutional entity authorized to operate, control, and

supervise the public schools in Monroe County, Florida.

2. At all tim es relevant to this proceeding, Respondent

has been an ESE teacher employed by Petitioner pursuant to a

professional services contract . Prior to the incidents that are

the subject of this proceeding, Respondent has not received any

disciplinary action.

3. Respondent has been an ESE teacher employed by

Petitioner since 2005. The 2011 - 12 school year was her first

year working with kindergarten through se cond grade students.

Respondent worked with ESE students both in the regular

classroom setting, where s he works one - on - one with a student,

and in situations where she removes students from the regular

classroom and works with one or more students in a separate

classroom.

4. Charity King (Ms. King) is a kindergarten teacher in

one of Petitioner's elementary schools (the subject school).

Respondent was assigned to the subject school for the 2011 - 12

school year , which was her second year as a teacher .

5. Ms. King's class consists of 16 kindergarten students ,

one of whom is the Student .

6. The Student is a five - year - old female with special

needs . The S tudent has been diagnosed with a form of autism

known as Pervasive Developmental Disability Disorder, Not

Otherwise Specified. The Student is high functioning

intellectually, but she has trouble verbalizing and is easily

distracted. She sometimes screams, pushes others (including her

teacher), and becomes defiant. Periodically, she has tantrums.

7. The Student 's father is a school psychologist employed

by Petitioner. The Student 's mother is an ESE staffing

specialist in the subject school. Both the father and the

mother are very involved with their daughter's education.

8. Respondent testified, credibly, that she communicated

daily with the Student 's parents and that she had developed a

good rapport with the Student .

9. Respondent also testified, credibly, that she is

philosophically opposed to becoming physical with any student.

Ms. Rollason has worked with Respondent on a daily basis since

August of 2006. During that time, Ms. Rollason has never seen

Respondent be physically inappropriate with a child , Respondent

lose her temper with a child, or do anything inappropriate with

a child. 2 /

10. On December 7, 2012, Respondent provided one - on - one

services to the Student in Ms. King's class room. Ms. King

taught her other students during that day.

11. On December 16, Ms. King reported to Ms. Diaz, the

assistant principal at the subject school, that on December 7

she had witnessed Respondent spank the Student on one occasion,

at which time she adm inistered two blows. 3 /

12. Ms. King testified that on a scale ranging from a low

of 1 to a high of 10, each of the two blows administered to the

Student would have been a 7.

13. Ms. King testified at the formal hearing that she

first discussed t he spanking incident with Respondent on

December 15. Ms. King testified that during that conversation,

Respondent tacitly admitted spanking the Student by nodding her

head and making a spanking motion. Respondent testified that

she met with Ms. King to d iscuss target groups, which included a

general discussion about the Student . Respondent denied that

the subject of spanking was discussed, and she denied making any

spanking motion

14. Ms. King testified that other than the conversation

she had with Resp ondent, she did not discuss the alleged

spanking incident with anyone at the school, including the

Student 's mother, until December 16, when she talked to

Ms. Diaz.

15. Ms. King did not confront Respondent on the day of the

alleged incident. Ms. King doe s not know the approximate time

of day the alleged spanking occurred, does not know what she was

doing whe n the alleged spanking occurred, does not know where

she was in the classroom, does not know where in the classroom

Respondent and the Student were, and does not recall whether the

Student cried or had any other reaction to the alleged spanking.

Ms. King did not talk to the Student about the alleged spanking ,

and she did not check to see if the Student was hurt.

16. Ms. King also testified t hat prior to December 7, she

had seen Respondent mishandle the Student . Ms. King did not

identify the time, date, or place of this alleged mishandling.

Ms. King did not describe the acts that constituted the

mishandling. Respondent testified, credibly, that she never

mishandled the Student and did not know what Ms. King was

referencing.

17. On either December 17 or 18, Respondent was first

notified of the allegation that she had spanked the Student .

Respondent was totally surprised by the allegation. She had no

idea what Ms. King was talking about. Over the course of the

following days and weeks, Respondent tried to reconstruct the

events of December 7. She could not recall any incident, and

nothing in her notes from that day referenced any issue.

18. Mr. Russell interviewed the other students in

Ms. King's class on December 22. None of those students

reported witnessing anything inappropriate on December 7.

19. The Student 's parents were not info rmed of the alleged

incident until January, a fter the holiday break. Consequently,

they were unable to discuss the incident with their daughter

right after the alleged incident occurred.

20. Since the first time she was confronted with the

allegations, Respondent has maintained she did not hit, spa nk,

or strike the Student on December 7. Respondent has also

maintained that she never handled the Student in a rough manner.

There is no basis in this case to credit Ms. King's testimony

over that of the Respondent. While t he undersigned finds

Ms. King to be a sincere witness , her vague, uncorroborated

testimony is insufficient to support a finding of guilt in this

proceeding.

21. Mr. Russell recommended that Respondent's employment

be terminated . When he made that recommendation, he was unaware

of Petitioner's progressive discipline policy. There was no

other evidence that Respondent's effectiveness in the school

system had been impaired by the alleged incidents.

CONCLUSIONS OF LAW

22 . DOAH has jurisdiction over the subject matter of and

the parties to this case pursuant to sections 120.569 and

120 . 57(1).

23 . Because Petitioner seeks to terminate Respondent's

employment, which does not involve the loss of a license or

certification, Petitioner has the burden of proving the

allegations in its Administrative Complaint by a preponderance

of the evidence, as opposed to the more stringent standard of

clear and convincing evidence. See McNeill v. Pinellas Cnty.

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

24 . The preponderance of the evidence standard requires

proof by "the greater weight of the evidence," Black's Law

Dictionary 1201 (7th ed. 1999), or evidenc e that "more likely

than not" tends to prove a certain proposition. See Gross v.

Lyons , 763 So. 2d 276, 289 n.1 (Fla. 2000)(relying on American

Tobacco Co. v. State , 697 So. 2d 1249, 1254 (Fla. 4th DCA 1997)

quoting Bourjaily v. United States , 483 U.S. 17 1, 175 (1987)).

25 . Petitioner has failed to meet its burden of proof in

this matter.

26 . Section 1012.33(1)(a), Florida Statutes, sets forth

"just cause" for terminating Respondent's employment. The

following are included among the grounds justifying termination

of employment: "immorality," and "misconduct in office" as

those terms are defined by rule of the State Board of Education.

27 . The following definitions are set forth in Florida

Administrative Code Rule 6B - 4.009(2), (3), and (4):

(2) Immorality is defined as conduct that

is inconsistent with the standards of public

conscience and good morals. It is conduct

sufficiently notorious to bring the

individual concerned or the education

profession into public disgrace or

disrespect and impair the individualÓs

service in the community.

(3) Misconduct in office is defined as a

violat ion 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 individu al's effectiveness in the

school system.

28 . Subsections (1) and (2) of the Code of Ethics of the

Education Profession in Florida (Florida Administrative Code

Rule 6B - 1.001) provide as follows:

(1) The educator values the worth and

dignity of every pers on, the pursuit of

truth, devotion to excellence, acquisition

of knowledge, and the nurture of democratic

citizenship. Essential to the achievement

of these standards are the freedom to learn

and to teach and the guarantee of equal

opportunity for all.

( 2) The educator's primary professional

concern will always be for the student and

for the development of the student's

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and inte grity.

(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

strives to achieve and sustain the highest

degree of ethical conduct.

29 . The Principle s of Professional Conduct for the

Education Profession in Florida are set forth in Florida

Administrative Code Rule 6B - 1.006. Subsection (2) of the rule

provides as follows:

(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.

30 . Florida Administrative Code Rule 6B - 1.006(3) sets

forth the obligations a teacher has to a student, and includes

the following:

(a) Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the student's physical

health and/or safety.

* * *

(e) Shall not intentionally expose a

student unnecessary embarrassment or

disparagement.

(f) Shall not v iolate or deny a student's

legal rights.

31 . Because the School Board did not meet its burden of

proof in this matter, it is not necessary to determine whether,

as asserted by Respondent, the Administrative Complaint is

deficient. 4 /

RECOMMENDATION

Base d on the foregoing findings of fact and conclusions of

Law, it is RECOMMENDED that the School Board of Monroe County,

Florida, enter a final order adopting the Findings of Fact and

Conclusions of Law contained in this Recommended Order. It is

further RECOMMENDED that the final order find Janet Faber not

guilty of the violations alleged in the Administrative Comp laint

and reinstate her employment with back pay and appropriate

benefits.

DONE AND ENTERED this 2 5 th day of July , 2012, in

Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

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 2 5 t h day of July , 201 2 .

ENDNOTE S

1 / The agenda item submitted to the School Board did not

explicitly state that the recommendation was to terminate

Respondent's employment. (The agenda item is Petitioner's

exhibit 1.) Respondent has asserted that termination should not

be a recommended penalty because the School Board did not

consider terminating her employment. That argument is rejected

for two reasons. First, the Administrative Complaint, which

pre - date d the School Board's action , clearly seeks to terminate

Respondent's employment. Moreover, the letter to the

Superintendent from Respondent's union representative requesting

a formal hearing was to "challenge your recommendation to

terminate " Respondent's employment. Respondent has known from

the outset of this proceeding that termination of her employment

is at issue in this proceeding. Second, in a teacher discipline

proceeding where one or more alleged violations are established,

the ALJ submits a rec ommended order that contains a recommended

penalty. The school board, not the ALJ, makes the final

decision as to the penalty to be imposed. The School Board will

enter the final order in this proceeding, and will determine the

penalty, if any, to be imp osed.

2 / Ms. Rollason regularly observed Respondent with the Student

during the 2011 - 12 school year and never observed Respondent act

inappropriately with the Student. Ms. Rollason was not present

in Ms. King's classroom on December 7 , 2012, when the al leged

spanking occurred. Because of Ms. King's vague testimony, it is

unknown whether Ms. Rollason was present when Ms. King

considered Respondent to have handled the Student roughly.

3 / There was some confusion between Ms. King 's testimony at the

heari ng and her deposition testimony. That confusion is

resolved by finding that Ms. King testified that there was one

incident of spanking that involved two blows.

4 / Had such a ruling been necessary, the undersigned would have

concluded that the Administra tive Complaint adequately notified

Respondent that the Petitioner sought to terminate her

employment, and that it notified her of the School Board

policies she had allegedly violated. The Administrative

Complaint was deficient in that it failed to allege that the

alleged violation of School Board policies constituted

misconduct in office, immorality, or any of the other grounds

for discipline set forth in section 1212.33(1)(a). Florida

Administrative Code Rule 28 - 106.2015 sets forth the pleading

requireme nts for an administrative complaint. Whether the

deficiency would have precluded the prosecution of this matter

will not be addressed because Respondent did not timely file a

motion to dismiss the Administrative Complaint as required by

Florida Administra tive Code Rule 28 - 106.204(2). Because of that

failure, the School Board has not had the opportunity to address

the issue.

COPIES FURNISHED:

Dr. Jesus F. Jara, Superintendent

Monroe County School Board

umbo Road

Key West, Florida 33040 - 6684

Ge rard Robinson, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Charles M. Deal, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Mark S. Herdman, Esquire

Herdman and Sakellarides, P.A.

Suite 110

29605 U.S. Highway 19, North

Clearwater, Florida 33761

[e-mail]

Theron Coleman Simmons, Esquire

Vernis and Bowling of the

Florida Keys, P.A.

3rd Floor

81990 Overseas Highway

Islamorada, Florida 33036

tsimmons@florida - law.com

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.