12-003972TTS Miami-Dade County School Board vs. Pamela Prudent Status: Closed Recommended Order on Thursday, December 19, 2013.

Summary: School Board established just cause for termination based on misconduct in office and violation of School Board Code of Ethics.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD ,

Petitioner ,

vs. Case No. 12 - 3972 TTS

PAMELA PRUDENT ,

Respondent .

/

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case

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

(2012) , before Jessica E. Varn, a duly - designated administrative

law judge of the Division of Administrative Hearings (DOAH). The

hearing was held on October 8, 2013 , by video teleconference at

sites in Miami and Tallahassee, Florida.

APPEARANCES

For Petitioner: Cristina Rivera, Esquire

Miami - Dade County School Board

Suite 430

1450 Northeast Seco nd Avenu e

Miami, Florida 33132

For Respondent: Leslie Phyllis Holland, Esquire

Law Office of Leslie Holland

Seco nd Floor

801 Northeast 167th Street

North Miami Beach, Flor ida 33162

STATEMENT OF THE ISSUE

Whether just cause exists to suspend Ms. Prudent without pay

and dismiss her from employment with the Miami - Dade County School

Board.

PRELIMINARY STATEMENT

On November 21, 2012 , Miami - Dade County School Board (Sc hool

B oard) took action to suspend Ms. Prudent ' s employment without

pay and to initiate proceedings to terminate her employment .

Ms. Pru d e nt timely requested an administrative hearing, and the

School Board referr ed the matter to DOAH on December 10 , 2012.

The hearing was originally sche duled for February 13, 2013 .

Based upon numerous requests from the parties, the hearing was

reschedule d several times , as follows : April 10, 2013; May 6,

2013; June 7, 2013; July 26, 2013; August 22, 2013; and then

October 8, 2 013.

The Notice of Specific Charges charged Ms. Prudent with four

counts: (1) misconduct in office, (2) violation of School Board

Rule 6Gx13 - 4A - 1.21, (3) violation of School board Rule

6Gx13 - 4A - 1.213, and (4) immorality.

At the final hearing, the School Board presented the

testimony of John Kennedy, Penny Parham, Magaly Abrahante, and

Joyce Castro. School Board Exhibits 1 - 29 were admitted into

evidence. Ms. Prudent testified on her own behalf, and also

presented the testimony of her three children, Bren da Prudent,

Gwendolyn Prudent, and Brandon Prudent.

The one - volume T ranscript of the proceedings was filed with

DOAH on October 13, 2013. The parties requested an extension of

tim e to file proposed recommended o rders, which was granted. On

December 2, 2013, bo th parties filed proposed recommended o rders,

which were considered in the preparation of this Recommended

Order.

Unless otherwise indicated, all rule and statutory

references are to the versions in effect at the time of the

alleged misconduct.

FIN DING S OF FACT

1. At all times material to this case, the School Board has

been the entity authorized to operate, control, and supervise the

public schools in Miami - Dade County, Florida.

2. Since 2006, Ms. Prudent has been employed as a teacher

in a pub lic school in Miami - Dade County.

3. Miami - Dade County schools participate in the National

School Lunch and Breakfast Program. The Free and Reduced Lunch

Program (FRLP) is part of the National School Lunch and Breakfast

Program, and is subsidized by the f ederal government. Pursuant

to United States Department of Agriculture (USDA) requirements,

each school district must provide a FRLP application to each and

every student.

4. Each family submits one appli cation for the entire

household, to be completed b y an adult household member. The

application requires that each household member be listed , and

each individual ' s respective gross income also be listed. If a

household member has no income to report, that should also be

noted on the application.

5. The application has a certification and signature

section, which states as follows:

The adult household member who completed this

application must sign and include their

social security number. A Social Security

number is not required on Food Stamp, TANF,

F DPIR, or Foster Child applications. If you

do not have a Social Security number (SSN),

place an X in the box provided.

I certify (promise) that all information on

this application is true and that all income

is reported. I understand that the school

wil l get Federal funds based on the

information I give. I understand that school

officials may verify (check) the information.

I understand that if I purposely give false

information, my children may lose meal

benefits and I may be prosecuted under state

an d federal statutes.

6. FLRP applications were filled out for the Prudent

children for at least three school years , including the 2009 - 2010

school year , and the 2010 - 2011 school year. On the applications

Ms. Prudent certified , with her signature , that sh e had

accurately completed the applications.

7. On the 2009 - 2010 application, three adults were listed

as household members: the children ' s grandmother, who had no

income; the children ' s father, who was gainfully employed with

the City of Fort Lauderdale ; and Ms. Prudent, who was employed as

a teacher.

8. The grandmother ' s lack of income was accurately

reported, but neither parent ' s income was accurately reported.

Ms. Prudent is listed as earning $1,000. 00 bi - weekly .

Ms. Prudent actually earned a gr oss bi - weekly salary ranging from

$1,269.66 to $2,017.00 during the 2009 - 2010 school year.

9. As to the father ' s income, the 2009 - 2010 application

falsely states that he had no income. Actually, Mr. Prudent was

gainfully employed, earning approximately $ 1,719.28 bi - weekly.

10. The following year, the 2010 - 2011 school year,

Ms. Prudent once again signed and certified that she had

completed the FRLP application, and listed the same adult

household members as she had identified the year before.

11. As to the grandmother, the application accurately

reflects that she had no income. As to the father, the

application lists a biweekly income that is close to accurate,

with only a small discrepancy.

12. But as to Ms. Prudent, the 2010 - 2011 application states

t hat she receives no income, despite the fact that she was

gainfully employed as a teacher with Miami - Dade County Schools ,

earning approximately $49,000.00 a year .

13. As a result of the applications filed for both school

years, the Prudent children were a pproved to receive free or

reduced price meals.

14. A Department of Food and Nutrition account statement

for each Prudent child was entered into evidence . The statement

identifies every meal given to the Prudent child ren during the

school years at issu e. The t racking system uses each student ' s

identificat ion or PIN number, which is scanned every time a meal

is provided. According to the data recorded on the statements,

the three Prudent children each received free or reduced meals

during the 2009 - 2010 and 2010 - 2011 school years.

15 . Based on the number of enrolled students entitled to

FRLP, a school may receive a " Title 1 designation, " which

provides supplemental federal funding for low income schools. As

part of the supplemen tal funding, the school is provided

supplemental educational services (SES). Essentially, free

tutoring is provided to the students who qualify for FRLP.

16. In order for a student receiving FR LP to receive the

free tutoring, the paren ts must complete yet another application.

17. For the 2010 - 2011 school year, Ms. Prudent filled out

an SES application requesting tutoring se rvices for one of her

daughters, based on her eligibility for FRLP. She signed the

form, certifying that she was requesting SES services for her

child.

18 . As a result of the SES application, which was based on

the student ' s eligibility for FRLP, one of Ms. Prudent ' s

daughters received SES tutoring services for the 2010 - 2011 school

year. There is more demand for the tutoring services than there

is availab ility; Ms. Prudent ' s child received free tutoring

services when other eligible students did not.

19. Ms. Prudent testified that while she did sign all the

various applications, she never read them and essentially had no

idea what she was signing. The Pru dent children echoed

Ms. Prudent ' s testimony, although not consistently. In light of

the evidence presented at hearing, Ms. Prudent ' s testimony, as

well as her children ' s testimony, is not found credible.

20. Because she omitted information that was re quired when

filling out applications for her children to receive free and

reduced meals, and free tutoring services, Ms. Prudent acted

dishonestly. F ederal dollars, funded by taxpayers, were spent on

services provided to the Prudent children, who did not qualify

for any of the benefits.

21. Ms. Prudent is guilty of misconduct in office and of

violating School Board Rule 6Gx13 - 4A - 1.213, " Code of Ethics. "

CONCLUSIONS OF LAW

22 . DOAH has jurisdiction over the subject matter of this

proceeding and of the parties hereto pursuant to chapter 120.

23. 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 Constitut ion or general law.

§ 1001.32(2) , Fla. Stat.

24 . Such authority extends to personnel matters and

includes the power to suspend and dismiss employees. See §§

1001.42(5), 1012.22(1)(f), and 1012.23(1) , Fla. Stat.

25 . At all times material to the instant case, the School

Board had the right, under section 1012.33(6)(a), to suspend or

dismiss, for " just cause, " classroom teachers and other

instructional personnel having professional service contracts.

26 . " Just cause " has been defined to include, but not be

limited to, 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 .

§ 1012.33(1)(a) , Fla. Stat.

27. In order to terminate Ms. Prudent, as the School Board

seeks to do in this proceeding, the School Board must demonstrate

by a preponderance of the evidence that Ms. Prudent committed the

violations as alleged in the No tice of Specific Charges. McNeill

v. Pinellas Cnty. Sch. Bd. , 678 So 2d 476, 477 (Fla. 2d DCA

1996); Allen v. Sch. Bd. of Dade Cnty. , 571 So. 2d 568, 569 (Fla.

3d DCA 1990).

28 . The preponderance of the evidence standard requires

proof by " the greater we ight of the evidence " or evidence that

" more likely than not " tends to prove a certain proposition. See

Gross v. Lyons , 763 So. 2d 276, 280 n.1 (Fla. 2000); see also

Williams v. Eau Claire Pub. Sch. , 397 F.3d 441, 446 (6th Cir.

2005)(holding trial court p roperly defined the preponderance of

the evidence standard as " such evidence as, when considered and

compared with that opposed to it, has more convincing force and

produces . . . [a] belief that what is sought to be proved is

m ore likely true than not tru e " ) .

29 . In Count I of the Notice of Specific Charges,

Ms. Prudent is charged with " Misconduct in office " which has been

defined in Florida Administrative Code Rule 6B - 4.009(3)) 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.

30 . The Code of Ethics of the Education Profession is set

forth in Florida Administrative Code Rule 6B - 1.001, and provides:

(1) The educator values the worth and

dignity of every person, the pursuit of

truth, devotion to excellen ce, 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

concer n 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 mainta ining

the respect and confidence of one ' s

colleagues, of students, of parents, and of

other members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

31 . Ms. Prudent ' s dishonesty runs afoul of section (3 )

above, as she failed to sustain the highest degree of ethical

conduct.

32 . The Principles of Professional Conduct for the

Education Profession in Florida is set forth in Florida

A dministrative Code Rule 6B - 1.006 , and provides in pertinent part

as follow s :

(4) Obligation to the public requires that

the individual:

* * *

(b) Shall not intentionally distort or

misrepresent facts concerning an educational

matter in direct or indirect public

expression.

33 . Ms. Prudent, in misrepresenting fact s on the SES

application for free tutoring services for her daughter, violated

section (4)(b) of the Pri nciples of Professional Conduct, and is

guilty of Count I.

34 . In Count II of the Notice of Specific Charges,

Ms. Prudent is charged with violating Sc hool Board Rule 6Gx13 - 4A -

1.21, " Responsibilities and Duties , " which provides in relevant

part:

I. Employee Conduct

All persons employed by the School board of

Miami - Dade County, Florida are

representatives of the Miami - Dade County

Public School s. As such, they are expected

to conduct themselves, both in their

employment and in the community, in a manner

that will reflect credit upon themselves and

the school system.

Unseemly conduct or the use of abusive and/or

profane language in the workplac e is

expressly prohibited.

35 . There is no evidence establishing an objective standard

of conduct t o evaluate Ms. Prudent ' s actions in the community, or

evidence that Ms. Prudent engaged in unseemly conduct in the

workplace. Accordingly, Ms. Prudent is not guilty of violating

School Board Rule 6Gx13 - 4A - 1.21 .

36 . In Count III of the Notice of Specific Charge s,

Ms. Prudent is charged with violating School Board

Rule 6Gx13 - 4A - 1.213, Code of Ethics, which provides in relevant

part:

All members of The Sch ool Board of Miami - Dade

County, Florida, administrators, teachers,

and all other employees of Miami - Dade County

Public Schools, regardless of their position,

because of their dual roles as public

servants and educators are to be bound by the

following Code of Ethics. Adherence to the

Code of Ethics will create an environment of

honesty and integrity and will aid in

achieving the common mission of providing a

safe and high quality education to all

Miami - Dade County Public Schools students.

* * *

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.

* * *

III. FUNDAMENTAL PRINCIPLES

The fundamental principles upon which this

Code of Ethics is predicated are as follows:

* * *

Ư Honesty -- Dealing truthfully with

people, being sincere, not deceiving them nor

stealing from them, not cheating or lying.

* * *

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.

37 . Ms. Prudent ' s dishonest behavior, in falsifying

applications and allowing her children to receive benefits for

which they did not qualify, is in violation of the Code of

Ethics. A n inference of impaired effectiveness may be drawn as a

result of such beh avior .

3 8 . For these reasons, Respondent is guilty of violating

School Board Rule 6Gx13 - 4A - 1.213 , as alleged in Count III of the

Notice of Specific Charges.

39 . Lastly, in Count IV of the Notice of Specific Charges,

Ms. Prudent is charged with immorality, which is defined as:

[C]onduct that is inconsistent with the

standards of public consci ence 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 individual ' s

service in the community.

Fla. Admin. Code R. 6B - 4.009(2) (emphasis a dded).

40 . The School Boa rd must demonstrate ÏÏ in order to dismiss

Ms. Prudent for immoral conduct ÏÏ a) she engaged in behavior

" inconsistent with the standards of public conscience and good

morals, and b) that the conduct was sufficiently notorious so as

t o [1] disgrace the teaching profession and [2] impair

[Respondent ' s] service in the community. " McNeill v. Pinellas

Cnty. Sch. Bd. , 678 So. 2d 476, 477 (Fla. 2d DCA 1996)(italics in

original).

41 . Here, the School Board presented no evidence

establishi ng the applicable " standards of public conscience and

good morals. " Fla. Admin. Code R. 6B - 4.009(2); McNeill , 678 So.

2d at 477. As a result, the undersigned can not determine whether

Ms. Prudent violated such public standards . T he School Board has

failed to meet its burd en of proof with respect to the charge of

immorality . Broward Cnty. Sch. Bd. v. Deering , Case No. 05 - 2842,

2006 Fl a. Div. Adm. Hear. LEXIS 367, *12 (Fla. DOAH July 31,

2006) (finding educator not guilty of immorality where school

board " di d not offer any persuasive evidence establishing the

applicable ' standards of public conscience and good morals '" ).

Accordingly, Ms. Prudent is not guilty of Count IV.

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 adopting the Findings of Fact and Conclusions

of Law contained in this Recommended Order. It is further

RECOMMENDED that the final order terminate Ms. Prudent ' s

employment.

DONE AN D ENTERED this 1 9 th day of December , 2013 , in

Tallahassee, Leon County, Florida.

S

JESSICA E. VARN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Flori da 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 19 th day of December , 2013 .

COPIES FURNISHED:

Leslie Phyllis Holland, Esquire

Law Office of Leslie Holl and

Seco nd Floor

801 Northeast 167th Street

North Miami Beach, Florida 33162

Cristina Rivera, Esquire

Miami - Dade County School Board

Suite 430

1450 Northeast Seco nd Avenue

Miami, Florida 33132

Pam Stewart, Commissioner of Education

Department of Educ ation

Suite 1514

Turlington Building

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Matthew Carson, General Counsel

Department of Education

Suite 1244

Turlington Building

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Albert o M. Carvalho, Superintendent

Miami - Dade County School Board

Suite 912

1450 Northeast Second Avenue

Miami, Florida 33132 - 1308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date o f this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.