13-001889 Miami-Dade County School Board vs. Arletha Scott Status: Closed Recommended Order on Monday, October 14, 2013.

Summary: Thirty day suspension recommended for paraprofessional who engaged in misconduct in office and violated school baord policies by placing a student against a wall and pulling the student's legs out from under her.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD ,

Petitioner ,

vs. Case No. 13 - 1889

ARLETHA SCOTT ,

Respondent .

/

RECOMMENDED ORDER

Pursuant to notice, a formal admin istrative hearing was

conducted by video teleconference at sites in Tallahassee and

Miami, Florida, on August 13 , 2013, before Administrative Law

Judge Mary Li Creasy of the Division of Administrative Hearings.

APPEARANCES

For Petitioner : Sara M. Marken, Esq uire

Heather Ward, Esq uire

Miami - Dade County School Board

Suite 430

1450 Northeast Second Avenue

Miami, Florida 33132

For Respondent : Brand e n Vicari, Esq uire

Herdman and Sakellarides, P.A.

Suite 110

29605 U.S. Highway 19, North

Clearwater, Florida 33761

STATEMENT OF THE ISSUE

Whether just cause exists to suspend Respondent without pay

for 30 days f rom her employment as a p araprofessional II with the

Miami - Dade County School Board .

PRELIMINARY STATEMENT

A t its regular meeting on May 8, 2013, Petitioner , Miami -

Dade County S chool B oard (Petitioner or School Board) , voted to

suspend Respondent , Arletha Scott , without pay for a 30 - day

period.

Respondent timely requested a formal administrative hearing

to contest Petitioner ' s action. On May 17, 2013, the matter was

referred to the Division of Administrative Hearings (DOAH) for

further pro ceedings. On Jul y 26 , 2013, Petitioner filed its

Notice of Specific Charges alleg ing that on January 28, 2013,

Respondent walked a student to the wall, grabbed the student by

the legs , and pulled on them resulting in the student falling to

the ground.

B ased upon the alleg ations, Petitioner charged Respondent

w ith misconduct in office (Count I), violation of School Board

policy (Standards of Ethical C onduct, Count II), violation of

School Board policy (Code of Ethics, Count III),

violation of School Board policy (Student Su pervision and

Welfare, Count IV) , and violation of School Board policy

(Corporal Punishment and Use of Reasonable Force , Count V ).

At the final hearing, which took place on August 13 , 2013,

Petitioner called the following witnesses: Carmen Gutierrez,

Juan J. Fernandez, Darryl Nattiel , and Martha Blandon - Munoz .

Petitioner ' s Exhibits 1 through 5, 8 , and 21 were admitted in

evidence without objection . Respondent testified on her own

behalf .

The final hearin g T ranscript was filed on September 30 ,

2013. Peti tioner and Respondent timely filed proposed

recommended orders that have been considered in the preparation

of this Recommended O rder.

Unless otherwise noted, citations to the Fl orida Statutes

refer to the 2013 version.

FINDING S OF FACT

1. Petitioner is t he duly constituted S chool B oard charged

with the duty to operate, control, and supervise al l free public

schools within Miami - Dade County, Florida, pursuant to A rticle IX

section 4(b) , Florida Constitution , and section 1001.32, Florida

Statutes.

2. At al l times material to this proceeding, Respondent was

employed as a p araprofessional II at Gatewa y Environmental K - 8

Learning Center (Gateway) , a public school in Miami - Dade County,

Florida. Respondent has been employed in the public school

system for appro ximately 25 years.

3 . Beginning in September 2012, Respondent was assigned to

provide classroom support to a second and third grade combined

special education class for students with learning disabilities.

Her duties included assisting the classroom teac hers and physical

education (P.E.) instructors with the students as needed,

assisting the students when moving from one part of the school to

another , and assisting with the sanitary needs of some disabled

students.

4. On January 28, 2013, during the seco nd interval class of

the school day, Respondent escorted her students to P.E. and

stayed with them to assist. Shortly after the P.E. class began,

Respondent had a verbal altercation with a student, J.D.

5. Prior to the altercation with Respondent, J.D. w as

standing with her classmates while receiving warm up exercise

instruction from Coach Darryl Nattiel (Nattiel). J.D. was not

observed disturbing other students or being disruptive in any

way . Nattiel did not tell Respondent that J.D. was forbidden

from participat ing in class or that J.D. was refusing to respond

to his instructions , n or did he instruct Respondent to move J.D.

to sit by the wall . 1/

6 . Respondent directed J.D. to " go sit by the wall. " When

J.D. did not respond, Respondent repeated the di rective several

times in a stern manner. This was heard by Coach Juan J.

Fernandez (Fernandez) who was present on the playground and was

taking attendance when the altercation began. Fernandez said

something to J.D. in an attempt to get her to sit in ord er to end

the confrontation.

7 . When J.D. refused to follow Respondent ' s directive,

Respondent grabbed J.D. by the arm, swung her around , and pulled

J.D. to a point where J.D. ' s back was against the wall.

Respondent continued aggressively directing J.D. to sit.

8 . J.D. did not immediately sit. While facing J.D.,

Respondent bent forward, grabbed J.D. by the legs , pulled them

forward , and forced her into a sitting position on the ground.

9 . Although Fernandez observed this interaction from a

short distan ce away , he did not address it with Respondent

immediately because he did not want to overstep Respondent ' s

authority.

10. J.D. appeared to be upset by the incident .

11 . The incident between Respondent and J.D. was recorded

by a video camera which overlo oks the playground area where this

occurred. I n the video, the view is partially obstructed by a

column. However, t he interaction between Respondent and J.D.

immediately before J.D. is placed against the wall i s clearly

visible in the video. J.D. does n ot appear to be disrupting the

class in any way and does not physically show aggression towards

Respondent. The recording does not contain audio.

12 . Prior to the end of the class, Respondent filled out an

incident report in which she complained that J.D . failed to

respond to her instructions, was aggressive towards Respondent ,

and used profanity directed at Respondent. The alleged

aggression and use of profanity by J.D. was not o bserved by

Fernandez or Nattiel.

13 . When the class was returning to the c lassroom,

Fernandez notified J.D ' s teacher about the incident with

Respondent. The teacher advised Fernandez to report the

situation to the main office. Fernandez reported the situation

to Carmen Gutierrez (Gutierrez) , who was p rincipal of Gateway at

tha t time.

14 . On March 20, 2013, a conference for the record (CFR)

was held with Respondent and her u nion representative.

Respondent was apprised of the probable cause finding against her

for violations of the following School Board Policies :

4210 , Sta ndards of Ethical Conduct ; 4210.01 , Code of Ethics ;

4213 , Student Supervision and Welfare ; and 5630 , Corporal

Punishment and Use of Reasonable Force. A 30 - day suspension

without pay was the recommended discipline.

15. Respondent contends that she was mer ely trying to

redirect a disruptive student who had cursed at her and is known

for kicking others.

16. Respondent ' s claims, that the student was not allowed

to participate in class, failed to follow Nattiel ' s instructions,

was disruptive and verbally abus ive towards Respondent , and

needed to be placed against the wall, were not persuasive in

light of the more credible testimony of the other witnesses and

the video recording of the incident.

Ultimate Factual Determinations

1 7. The greater weight of the ev idence establishes that

Respondent was guilty of misconduct in office.

18. The greater weight of the evidence establishes that

Respondent violated the Standards of Ethical Conduct .

1 9 . The greater weight of the evidence establishes that

Respondent violat ed the Code of Ethics in the Education

Profession .

20 . The School Board failed to prove by a preponderance of

the evidence that Respondent violated School Board Policy 3214

regarding student supervision and welfa re.

21 . The greater weight of the evidence establishes t hat

Respondent, when dealing with the student, used excessive force.

CONCLUSIONS OF LAW

22 . DOAH has jurisdiction over the parties to and the

subject matter of these proceedings pursuant to sections 120.569

and 120.57(1) , Florida Stat utes .

2 3 . 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 Notice of Specific Charges 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. , 5 69 So. 2d 883 (Fla. 3d DCA 1990).

2 4 . The preponderance of the evidence standard requires

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

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

than not " tends to prove a certain propositi on. 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. 171, 175 (1987)).

2 5 . Article XXI, Section 2 , of the applicable collective

bargaining agreement provides:

Dismissals and suspensions shall be effected

in accordance with applicable Florida

statutes, including the Administrative

Procedures Act (APA), and provisions stated

below:

a. No employee shall be suspended unti l all

of the detailed specific charges have been

made known to the employee, in writing,

provided, further, that said employee is

entitled to be represented by one

representative of the union in conference

with the office of professional standards

administ rator or his/her designee.

2 6 . Respondent is considered " instructional personnel "

as defined in s ecti on 1012.01 ( 2 ) (e) , Florida Statu t es .

Section 1012. 33( 6 ) provides:

Any member of the instructional staff,

excluding an employee specified in

subsection (4) , may be suspended or dismissed

at any time during the term of the contract

for just cause a s provided in paragraph

(1)(a). The district school board must

notify the employee in writing whenever

charges are made against the employee and may

suspend such p erson without pay; but, if the

charges are not sustained, the employee shall

be immediately reinstated, and his or her

back salary shall be paid.

2 7 . In accordance with section 1012.33(1) ( a), " just cause "

includes " misconduct in office " as defined by rul e of the State

Board of Education.

The Alleged Violations

2 8 . Petitioner ' s Notice of Specific Charges alleges that

Respondent ' s above - described conduct resulted in the following

violations:

Count I - Florida Administrative Code Rule 6A - 5.056,

Misconduct i n Office; Rule 6A - 10.080, Code of Ethics in the

Education Profession; Rule 6A - 10.081, Principles of Professional

Conduct ;

Count II - School Board Policy 4210 , Standards of Ethical

Conduct;

Count III - School Board Policy 4210.01, Code of Ethics;

Count IV - School Board Policy 4213, Student Supervision and

Welfare; and

Count V - School Board Policy 5630, Corporal Punishment and

Use of Reasonable Force.

Count I - Misconduct in Office

29 . Misconduct in O ffice is defined in r ule 6A - 5.056 as:

(a) A violation o f the Code of Ethics of the

Education Profession in Florida as adopted in

Rule 6B - 1.001, F.A.C. (currently Rule 6A -

10.080, F.A.C.);

( b) A violation of the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B -

1. 006, F.A.C. (currently Rule 6A - 10.081,

F.A.C.);

(c) A violation of the adopted school board

rules;

(d) Behavior that disrupts the student ' s

learning environment; or

(e) Behavior that reduces the teacher ' s

ability or his or her colleagues ' ability to

effectively perform duties.

30 . Rule 6A - 10.081, C ode of Ethics of the Education

P rofession in Florida , provides:

(1) The educator values the worth and

dignity of every person, the pursuit of

truth, devotion to excellence, acquisition of

knowledge, and t he 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 an d

for the development of the student ' s

potential. The educator will therefore

strive for profes sional 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 members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

31 . Rule 6A - 10.081, Principles of Professional Conduct for

the Education Profession in F lorida , provides in relevant part:

(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 o r

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 an d/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 violate or deny

a student ' s legal rights.

32 . Respondent ' s actio ns of grabbing a student by the arm,

swinging her around, placing her against a wall, and then pulling

her legs from under her causing the student to fall on her

buttocks on the ground were unnecessary and unjustified,

particularly in light of the fact tha t the student was not

observed being disruptive or aggressive. Respondent ' s actions

towards J.D. showed a lack of professional judgment and

integrity.

33 . For the reasons set forth above, t he School Board

proved that Respondent was guilty of misconduct i n office as

defined in r ule 6A - 5.056 ; r ule 6A - 10.081, Code of Ethics of the

Education Profession in Florida ; and r ule 6 A - 10.081, Principles

of Professional Conduct for the Education Profession in Florida.

Count II - Standards of Ethical Conduct

34 . School Board Policy 4210 , Standards of Ethical Conduct ,

provides in relevant part:

A support staff member with direct access to

students shall:

A. make a reasonable effort to protect the

student from conditions harmful to learning

and/or to the student ' s menta l and/or

physical health and/or safety.

B. not unreasonably restrain a student from

independent action in pursuit of learning.

C. not intentionally expose a student to

unnecessary embarrassment or disparagement.

* * *

S. not use abusive and/ or profane language

or display un seemly conduct in the workplace.

3 5 . Respondent ' s actions of grabbing the student by the

arm, swinging her around , and pulling her legs out from under her

to make her sit on the floor are wholly inconsistent with

Responde nt ' s duty to protect the student from conditions harmful

to learning. Respondent restrained the student from independent

action and intentionally exposed the student to unnecessary

embarrassment or disparagement.

36. For the reasons set forth above, the School Board

proved that Respondent violated School Board Policy 4210,

Standards of Ethical Conduct.

Count III - Code of Ethics

3 7 . School Board Policy 4210.01, Code of Ethics , provides

in relevant part:

All members of the School Board,

administrators, te achers and all other

employees of the District, 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 honest y and integrity and

will aid in achieving the common mission of

providing a safe and high quality education

to all District students.

As stated in the Code of Ethics of the

Education Profession in Florida (State Board

of Education F.A.C. 6B - 1.001):

A. T he 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 achievement of

these standards are the freedom to learn and

to tea ch and the guarantee of equal

opportunity for all.

* * *

Conduct Regarding 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;

B. not unreasonably restrain a student from

independent action in pursuit of learning;

* * *

E. not intentionally expose a student to

unnecessary embarrassment or disparagement;

F. not intentionally violate or deny a

student ' s legal rights;

38 . The violations alleged in Counts I I and I II are

virtually identical. For the reasons set forth above, the School

Board proved that Respondent violated School Board Policy

4210.01, Code of Ethics.

Count IV - Student Supervision and Welfare

39 . School Board policy 4213 , regarding Student Supervision

and Welfare , provides:

Protecting the physical and emotional well -

being of students is of paramount importance.

Each support staff member shall maintain the

highest professional, moral, a nd ethical

standards in dealing with the supervision,

control, and protection of students on or off

school property.

Staff shall:

* * *

B. provide prope r instruction in safety

matters;

40 . No evidence was presented that Respondent had a duty to

"provide instruction in safety matters" -- the violation with which

Respondent was cited in the Notice of Specific Charges.

41 . Accordingly, Respondent did not violate School Board

P olicy 3214 regarding student supervision and welfare.

Count V - Corporal Punishment and Use of Reasonable Force

42 . School Board Policy 5630, Corporal Punishment and Use

o f Reasonable Force, provides:

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.

Comprehensive programs for alternative

discipline include, but are not limited to,

counseling, timeout rooms, in - school

suspension centers, student mediation and

conflict resolution, parental invo lvement,

alternative education programs, and other

forms of positive reinforcement.

* * *

Instructional 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 student, in self - defense, or for the

protection of persons or property.

43 . The persuasive evidence established that the student

was not being disrup tive or aggressive prior to being approached

by Respondent. There was no need to grab the student by the arm,

swing her around or place the student on the wall. There was

certainly no justification for yanking the student ' s legs out

from under her causin g her to land on the floor.

44 . For the reasons described above, t he School Board

proved that Re spondent, when dealing with the student , used

excessive force, thereby violating School Board Policy 5630.

45 . Accordingly, there is " just cause, " as required by

section 1012.33, and the applicable collective bargaining

agreement, for Petitioner to suspend Respondent from her

employment as a paraprofessional for 30 work days without pay.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner, Miami - Dade County School

Board, enter a f inal o rder sustaining the suspension of

Respondent ' s employment without pay for 30 days.

DONE AND ENTERED this 14th day of October , 2013 , in

Tallahassee, Leon County, Florida .

S

MARY LI CREASY

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

Fi led with the Clerk of the

Division of Administrative Hearings

this 14th day of October , 2013 .

ENDNOTE

1/ There was conflicting testimony regarding whether Nattiel

suggested to Respondent that J.D. was not allowed to participate

in class as a result of J.D. not following instruction s or

participating in an activity . Respondent refused to directly

answer the question whether Nattiel instructed her to have J.D.

sit by the wall. Nattiel denied giving Respondent any such

information or instruction and cred ibly explained that he would

not have a student in this class si t out for refusing to

participate in any activity. Nattiel explained that this class

has students with varying physical capabilities and that he

tailors his instruction to the individual need s for these

students. It is common for some of the students to be unable to

participate in some of the activities and, therefore, they are

not excluded from class on this basis.

COPIES FURNISHED:

Brand e n Vicari, Esquire

Herdman and Sakellarides, P.A.

S uite 110

29605 U.S. Highway 19, North

Clearwater, Florida 33761

Sara M. Marken, Esquire

Heather Ward, Esquire

Miami - Dade County School Board

Suite 430

1450 Northeast Secon d Avenue

Miami, Florida 33132

Alberto M. Carvalho, Superintendent

Miami - Dade Coun ty School Board

Suite 9 12

1450 Northeast Second Avenue

Miami, Florida 33132 - 1308

Matthew Carson , General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Pam Stewart , Commissioner

Dep artment of Education

Turlington Building, Suite 1514

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 Or der. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.