13-001034TTS Miami-Dade County School Board vs. Aaron Altheim Status: Closed Recommended Order on Friday, November 22, 2013.

Summary: The evidence failed to demonstrate just cause for termination of Respondent's employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD ,

Petitioner ,

vs. Case No. 13 - 1034TTS

AARON ALTHEIM ,

Respondent .

/

RECOMMENDED ORDER

Pursuant to notice, a hear ing was conducted in this case

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

before Jessica E. Varn, a duly - designated administrative law

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

hearing was held on October 2 , 2013, by video teleconference at

sites in Miami and Tallahassee, Florida.

APPEARANCES

For Petitioner: Heather L. Ward, Esquire

Cristina Rivera, Esquire

Miami - Dade County Public Schools

1450 Northeast Second Ave nue

Miami, Florida 33132

For Respondent: Mark S. Herdman, Esquire

Herdman and Sakellarides, P.A.

Suite 110

29605 U.S. Highway 19, North

Clearwater, Florida 33761

STATEMENT OF THE ISSUE

Whether there is just cause to terminate Mr. Altheim ' s

employment.

PRELIMINARY STATEMENT

On March 1 3 , 2013, the Miami - Dade County School Board

(School Board) voted at its regularly scheduled meeting to

terminate Mr. Aaron A ltheim ' s employment as a teacher with the

School Board. The School Board notified Mr. Altheim of its

decision by letter dated March 14, 2013. Mr. Altheim timely

requested an administrative hearing and the School Bard referred

the matter to DOAH on March 19, 2013. The matter was assigned to

Administrative Law Judge Jessica E. Varn.

On March 27, 2013, the final hearing was scheduled for

May 9, 2013 , in Miami, Florida. On April 12, 2013 , the

undersigned entered an Amended Notice of Hearing, re - scheduling

the hearing for May 10 , 2013. Respondent requested two

continuances, which were granted. The hearing was first

rescheduled for August 30, 2013 , and then rescheduled again for

Sept ember 11, 2013 .

On July 10, 2013 , the School Board filed its Notice of

Sp ecific Charges. The notice charged Mr. Altheim with violations

of School Board Policies 3210, 3210.01, and 3213 ; Florida

Admin istrative Code Rule 6A - 5.056( 2 ), alleging that M r . Altheim ' s

act ion s constitute misconduct in office ; and rule 6A - 5.056 ( 4 ),

alle ging that Mr . Altheim ' s act ion s constitute gross

insubordination.

On September 9, 2013, Respondent filed an emergency motion

to continue and reschedule hearing. The motion was granted and

the final hearing was rescheduled for October 2, 2013.

At hearing, Pet itioner presented the testimony of Karen

Robinson, Howard Weiner , and Helen Pina. Mr . Altheim testified

on his own behalf. Petitioner ' s Exhibits 1 - 4 , and 6 were

admitted into evidence. Respondent ' s Exhibits 14 - 18 were

admitted into evidence ; Responde nt also offered 13 deposition

transcripts , labeled Exhibits 1 - 13 , which were admitted into the

record by stipulation of the parties in lieu of live testimony .

The one - volume Transcript was filed with DOAH on

October 17 , 2013. Both parties timely filed pr oposed recommended

orders, which were considered in the preparat ion of this

Recommended Order.

Unless otherwise noted, all statutory referenc es are to

Florida Statutes (2012 ).

FINDING S OF FACT

1. The School Board is the entity authorized to operate,

cont rol, and supervise the public schools in Miami - Dade County,

Florida.

2. Mr. Altheim has been employed with the Miami - Dade County

Public Schools for 15 years.

3. During the 1999 - 2000 school year, Mr. Altheim was a

teacher at North Miami Middle School. He was involved in a

conference - for - the - record; he was directed to follow all School

Board rules and to conduct himself within the community in a

proper manner.

4. During the 2002 - 2003 school year, Mr. Altheim was still

working at North Miami Middle School. He was involved in a

conference - for - the - record, where he was again directed to adhere

to all Miami - Dade County School Board rules and regulations. He

was also directed to cease and desist from inappropriate contact

with the students , and to conduct hims elf in a manner that would

reflect credit upon himself and the Miami - Dade County Public

Schools.

5. Ten years later, during the 2012 - 2013 school year,

Mr. Altheim was employed as a civics teacher for John F. Kennedy

Middle School. Karen Robinson was the Principal during this

school year.

6. On a school day in December 2012, Mr. Altheim took his

class to the cafeteria for lunch. While in the cafeteria, he

noticed three girls who were out of place; because he knew which

students should be in the cafeteri a during that time period, he

concluded that the three gi rls should be elsewhere.

7. Mr. Altheim took one student to Mr. Sanon ' s class, and

informed Mr. Sanon that the student was attempting to skip his

class. The other t wo he took to see the Assistant P rincipal , who

was on the phone when the group arrived at his office .

8. Mr. Altheim left the students in the Assistant

Principal ' s office, shortly thereafter returning to check on the

matter. The students were still waiting, and the Assistant

Principal w as still on the phone. Mr. Altheim told the Assistant

Princip al that the girls were " skipping " and started to walk

away. He o verheard one of the girls, N.S., tell the other girl

that Mr. Altheim was a rapist, and that he touched people.

Mr. Altheim tol d Ms. Robinson that N.S. had called him a rapist,

and Ms. Robinson directed Mr. Altheim to write a referral for

N.S., for using inappropriate language with a teacher.

9. N.S. w as described as a challenging student by both

M s. Robinson and Mr. Altheim . P rior to this incident,

Mr. Altheim had written referrals for N.S. numerous times for

behavioral problems .

10. M s. Robinson met with N.S., and asked her why she used

the term " rapist " to refer to Mr. Altheim. N.S. accused

Mr. Altheim of rubbing girls ' necks and shoulders, including

hers, and gave M s. Robi nson the names of three other g irls who

could corroborate her story.

11. M s. Robinson spoke to approximately five students,

including the three girls that had been identified by N.S. Some

of the girls accused Mr. Altheim of massaging their necks and

shoulders, and one accused him of brushing her bangs away.

According to M s. Robinson, all of them reported feeling

uncomfor table with the physical contact. None of these students '

written statements or or al statements were entered into evidence.

12 . Instead, 13 other students testified by deposition.

Twelve of them never saw Mr. Altheim touch any student

inappropriately. Most of them saw Mr. Altheim pat students on

the back or on the shoulder, or shake a student ' s hand, when

congratulating a student for a job well done . They consistently

testified that he did so in a congratulatory manner, but never in

an inappropriate manner.

13 . One student , D.P., claimed that he had seen Mr. Altheim

wrap his arm aro und a girl ' s waist, but added that no one else

saw this occur, and admitted to being friends with N.S. and the

other accusers. D.P. ' s testimony was not corroborated by any

other student ' s testimony, and is not found credible.

14 . Notably absent from the record is any alleged victim

statement; n ot a single student testified that he or she had been

inappropriately touched by Mr. Altheim.

15 . Mr. Altheim credibly testified that he never

inappropriately touched any student, and that he never massaged

studen t ' s necks or shoulders. He may have patted student s on the

shoulder or back, or shaken students ' hand s when congratulating

them , but there was nothing inappropriate about the physical

contact.

16 . The greater weight of the evidence establishes that

Mr. Altheim is not guilty of misconduct in office, gross

insubordination, or of a violation of any School Board policy.

CONCLUSIONS OF LAW

17 . DOAH has jurisdiction over the subject matter and

parties to this case pursuant to sections 120.569 and 120.57(1),

F lorida Statutes.

18 . A district school board employee against whom a

disciplinary proceeding has been initiated must be given written

notice of the specific charges prior to the hearing. Although

the notice " need not be set forth with the technical nice ty or

formal exactness required of pleadings in court, " it should

" specify the [statute,] rule, [regulation, policy, or collective

bargaining provision] the [school board] alleges has been

violated and the conduct which occasioned [said] violation. "

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

DCA 1983)(Jorgenson, J., concurring).

19 . Once the school board, in its notice of specific

charges, has delineated the offenses alleged to justify

termination, those are the only grounds upon whi ch dismissal may

be predicated. See Cottrill v. Dep ' t of Ins. , 685 So. 2d 1371,

1372 (Fla. 1st DCA 1996); Klein v. Dep ' t of Bus. & Prof ' l Reg. ,

625 So. 2d 1237, 1238 - 39 (Fla. 2d DCA 1993); Delk v. Dep ' t of

Prof ' l Reg. , 595 So. 2d 966, 967 (Fla. 5th DCA 19 92).

20 . In an administrative proceeding to suspend or dismiss a

member of the instructional staff, the school board, as the

charging party, bears the burden of proving, by a preponderance

of the evidence, each e lement of the charged offense. 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). The preponderance of the evidence standard requires

proof by " the greater weight of the evidence " or evidence tha t

" more likely than not " tends t o prove a certain proposition.

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 properly 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

more likely true than not true " ).

21 . The instructional staff mem ber ' s guilt or innocence is

a question of ultimate fact to be decided in the context of each

alleged violation. McKinney v. Castor , 667 So. 2d 387, 389 (Fla.

1st DCA 1995); Langston v. Jamerson , 653 So. 2d 489, 491 (Fla.

1st DCA 1995).

22 . Pursuant to se ction 1012.33(6)(a), Fl orida Statutes,

Petitioner is authorized to suspend or dismiss a member of its

instructional staff for " just cause, " which is defined, in

relevant part, as follows:

Just cause includes, but is not limited to,

the following instances , as defined by rule

of the State Board of Education: immorality,

misconduct in office , incompetency, two

consecutive annual performance evaluation

ratings of unsatisfactory under s. 1012.34 . .

. gross insubordination , willful neglect of

duty, or being convicted or found guilty of,

or entering a plea to, regardless of

adjudication of guilt, any crime involving

moral turpitude.

§ 1012.33(1)(a), Fla. Stat. (emphasis added).

23 . In th e Administrative Complaint, the School Board

asserts that Mr. Altheim is guilty of gross insubordination

and/or misconduct in o ffice, and of violating three different

School Board Policies .

24 . Gross insubordination, as defined in r ule 6A - 5.056, is

the intentional refusal to obey an order, reasonable in nature,

and given by and with proper authority. The School Board failed

to prove that Mr. Altheim is guilty of gross insubordination.

25 . Misco nduct in office, as defined in rule 6A - 5.056,

means one or more of the following:

a. A violation of the Code of Ethics of the

Education Profession in Florida as adopted in

Rule 6B - 1.001, F.A.C.;

b. A violation of the Principles of

Professional Cond uct for the Education

Profession in Florida as adopted in

r ule 6B - 1.006, F.A.C.;

c. A violation of the adopted school board

rule s;

d. Behavior that disrupts the student ' s

learning environment; or

e. Behavior that reduces the teacher ' s

ability or his or her colleague ' s ability to

effectively perform duties.

26 . The School Board failed to prove that Mr. Altheim was

guilty of m isconduct in office.

27 . School Board Policy 3210, which is titled " Standards of

Ethical Conduct, " provides in relevant part:

All employees are representatives of the

District and shall conduct themselves, both

in their employment and in the community, i n

a manner that will reflect credit upon

themselves and the school system.

This policy , in relevant part, further provides that an

instructional staff member shall:

* * *

3. Make a reasonable effort to protect the

student from conditions harmful to learn ing

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 rights;

9. Not harass or discriminate against any

student on any basis prohibited by law or the

Board and shall make reasonable efforts to

assure that each student is protected from

harassment or discrimination;

* * *

21. Not use abusive and/or profane language

or display unseemly conduct in the workplace.

28 . The School Board failed to prove that Mr. Altheim ' s

conduct violate d any of the provisions of School Board Policy

3210 .

29 . Mr. Altheim is also accuse d of violating School Boa rd

Policy 3210.01, titled " Code of Ethics " , which stat es as follows:

Each employee agrees and pledges:

A. To abide by this Code of Ethics, making

the well - being of the students and the honest

perf ormance of professional duties core

guiding principles.

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

codes and r egulations.

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

strive to be fair in all matters.

E. To take responsibility and be accountable

for his/her acti ons.

F. To avoid conflicts of interest or any

appearance of impropriety.

G. To cooperate with others to protect and

advance the District and its students.

H. To be efficient and effective in the

performance of job duties.

T he policy , in relevant par t, states that in regard to students,

each employee shall:

A. 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;

* * *

E. Not intentionally expose a stu dent to

unnecessary embarrassment or disparagement;

F. Not intentionally violate o r deny a

student ' s legal rights;

G. Not harass or discriminate against any

student on any basis prohibited by the Board

and shall make reasonable effort to assure

that ea ch student is protected from

harassment and discrimination.

30 . The School Board failed to prove that Mr. Altheim ' s

cond uct violate d School Board Policy 3210.01.

31 . School Board Policy 3213, titled " Student Supervision

and Welfare, " states in relevan t part:

Protecting the physical and emotional well -

being of students is of paramount importance.

Each instructional staff member shall

maintain the highest professional, moral, and

ethical standards in dealing with the

supervision, control, and protection of

students on or off school property.

* * *

E. Staff members shall not inappropriately

associate with students at any time in a

manner which may give the appearance of

impropriety, including, but not limited to,

the creation or participation in any

si tuation or activity which could be

considered abusive or sexually suggestive or

involve illegal substances such as drugs,

alcohol, or tobacco.

F. Staff members shall not engage in

unacceptable relationships and/or

communications with students. Unaccepta ble

relationships and/or communications with

students include, but are not limited to the

following: dating, any form of sexual

touching or behavior; making sexual, indecent

or illegal proposals, gestures or comments;

and/or exploiting an employee - student

relationship for any reason. Any sexual or

other inappropriate conduct with a student by

any staff member will subject the offender to

potential criminal liability and discipline

up to and including termination of

employment.

3 2 . The School Board faile d to prove that Mr. Altheim ' s

conduct violate d any portion of School Board Policy 3213.

33 . The greater weight of the evidence established that

Mr. Altheim is not guilty of any of the allegations made in the

Notice of Specific Charges.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

final order dismissing the charges against Mr. Altheim and

reinstat ing him with full back pay and benefits.

DONE AND ENTERED this 22 nd day of November , 2013 , in

Tallahassee, Leon County, Florida.

S

JESSICA E. VARN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(8 50) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of November , 2013 .

COPIES FURNISHED:

Mark Herdman, Esquire

Herdman and Sakellarides, P.A.

Suite 110

29605 U.S. H ighway 19, North

Clearwater, Florida 33761

Heather L. Ward, Esquire

Miami - Dade County Public Schools

1450 Northeast Second Avenue

Miami, Florida 33132

Matthew Carson, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gai nes Street

Tallahassee, Florida 32399 - 0400

Pam Stewart, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Alberto Carvalho, Superintendant

Miami - Dade County Publ ic Schools

Suite 912

1450 Northeast Second Avenue

Miami, Florida 33132

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 Recommen ded Order should be filed with the agency that

will issue the Final Order in this case.