13-003603TTS St. Lucie County School Board vs. Dru Dehart Status: Closed Recommended Order on Wednesday, February 12, 2014.

Summary: Termination for teacher guilty of asking a student to talk to another student who had misbehaved in class and failing to intervene to stop student from doing so and getting friends to intimidate misbehaving student.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ST. LUCIE COUNTY SCHOOL BOARD ,

Petitioner ,

vs. Case No. 13 - 3603TTS

DRU DEHART ,

Respondent .

/

RECOMMENDED ORDER

On December 9 - 11, 2013, Robert E. Me ale, Administrative Law

Judge of the Division of Administrative Hearings, conducted the

final hearing by videoconference in Tallahassee and Port St.

Lucie, Florida.

APPEARANCES

For Petitioner: David Miklas, Esquire

Leslie Jennings Beuttel l, Esquire

Richeson & Coke, P.A.

Post Office Box 4048

Fort Pierce, Florida 34948

For Respondent: Mark Wilensky, Esquire

Dubiner & Wilensky, L.L.C.

Suite 103

1300 Corporate Center Way

Wellington, Florida 33414

STATEMENT OF THE ISSUES

The issues are whether Respondent is guilty of the alleged

misconduct and, if so, whether such misconduct constitutes just

cause for Respondent ' s terminat ion, pursuant to s ection

1012.33(6)(a), Florida Statutes.

PRELIMINARY STATEMENT

By Statement of Charges and Petition for Termination dated

September 16, 2013 (Petition), Petitioner alleged that, on

March 20, 2013, Petitioner engaged in " inappropriate cond uct with

students. " The Petition does not elaborate what is meant by this

allegation, so this appears to be only an introductory allegation

of some sort.

The Petition alleges that a seventh - grade student, who was

identified at the hearing as R. W., made a statement to Respondent

during second - period class that provoked her. After class ended,

Respondent allegedly approached another teacher, Kalyn Nova, and

told her that R. W. had just said in class that he was going to

physically assault Respondent.

T he Petition alleges that Respondent " used inappropriate

language either directly with or in the presence of students, " but

the Petition does not state either the language or otherwise

describe what it was that Petitioner said that was inappropriate.

Based on the allegations surrounding this allegation, Petitioner ' s

opening statement (Tr. 15), and the testimony, this allegation

refers to Respondent ' s utterance of the word, " shit, " as she

quoted to Ms. Nova what Respondent understood R. W. to have said

to he r.

The Petition alleges that two male eighth - grade students

" became involved " with " this discussion with [Respondent] and

sought permission to confront [R. W.] . " Although there is no

allegation of Ms. Nova ' s saying anything, the surrounding

allegations make it clear that " this discussion " refers to

Respondent ' s statement to Ms. Nova of what R. W. had said in

class.

The Petition does not allege Respondent ' s response to the

students ' request. Instead, the Petition alleges that the two

students left the cl assroom and walked directly to the classroom

of R. W., and Respondent " observed and permitted this. " The

Petition alleges two more failures to act by Respondent:

Respondent " was aware of, and took no action to address, " the two

students ' leaving the clas sroom with R. W. and entering a third

classroom. These are the three failures to act that are discussed

below.

The Petition alleges that the two students escorted R. W. to

a couple of different classrooms, where the students asked other

eighth - grade male students to join them in the hall. Once in the

hall, several eighth - grade male students allegedly struck R. W.

The Petition alleges that a media specialist passed the

students in the hall on her way to Respondent ' s classroom. The

Petition alleges that the students then brought R. W. into

Respondent ' s classroom, where, in the presence of Respondent ' s

third - period class, the students made R. W. apologize to

Respondent. Respondent allegedly responded that " I got my eighth -

grade boys on you. You ' re not so tough now are you? " Respondent

allegedly then told the eighth - grade boys, " Get him out of here. "

The Petition alleges that the eighth - grade boys escorted

R. W. out of Respondent ' s classroom and into a restroom. The

Petition does not allege anything abou t what transpired in the

restroom, but alleges that, after R. W. left the restroom, his

sister confronted the boys in the hallway, drawing the attention

of the Dean ' s clerk, who spoke with R. W. After doing so, the

Dean ' s clerk allegedly visited Responden t and told her that R. W.

had reported that Respondent had had her " eighth grade boys jump

on him. " The Dean ' s clerk allegedly advised Respondent that she

would be reporting the incident to school administrators.

The Petition alleges that Respondent inter fered with student

witnesses in three respects. First, the Petition alleges that

Respondent reassembled the eighth - grade boys behind a closed door

in the back room of her classroom, where she told them that there

would be an investigation during which the y would have to provide

statements. She allegedly told one of the students to write that

he had heard R. W. curse at Respondent.

Second, the Petition alleges that Respondent made statements

to her third - period class about what they had seen when the

eig hth - grade students had brought R. W. into the classroom.

Third, the Petition alleges that Respondent tracked down

students from the second - period class during lunch and

contaminated their memories of what they had heard R. W. say

during class.

The Petiti on alleges that the incident generated widespread

publicity.

At the end of the factual allegations, the Petition states

that " the foregoing facts are fully discussed in the attached

Report which is incorporated herein. " The 29 - page investigative

report wa s prepared by the law firm representing Petitioner in

this case. Notwithstanding the incorporation of this document

into the Petition, the report is not a source of additional

allegations of misconduct by Respondent. As the Petition states,

the report is merely a discussion of the " foregoing facts " set

forth in the Petition. Also, the document is a lengthy, wide -

ranging investigative document that does not clearly identify the

specific acts and omissions justifying the termination of

Respondent ' s employm ent.

The Petition alleges that the above - described facts violate

46 provisions of law: School Board Policy 6.301(2), which

requires a teacher to abide by the Code of Ethics, Principles of

Professional Conduct, and the Standards of Competent and

Profession al Performance in Florid a; Florida Administrative Code

R ule 6A - 10.080(2), which requires a teacher to exercise her best

professional judgment and integrity; rule 6A - 10.080(3), which

requires a teacher to strive to achieve and sustain the highest

degree of ethical conduct; rule 6A - 10.081(3)(a), which requires a

teacher to make reasonable effort to protect the student from

conditions harmful to learning or the student ' s mental or physical

health or safety; rule 6A - 10.081(3)(e), which prohibits a teacher

from intentionally exposing a student to unnecessary embarrassment

or disparagement; rule 6A - 10.081(3)(h), which prohibits a teacher

from exploiting a relationship with a student for personal gain or

advantage; rule 6A - 10.081(4)(c), which prohibits a teacher fr om

using institutional privileges for personal gain or advantage;

rule 6A - 10.081(5)(a), which requires a teacher to maintain honesty

in all professional dealings; rule 6A - 10.092(5), which requires a

teacher to adhere to and enforce administrative policies of the

school, district rules, and State Board rules; rule 6A - 10.094(3),

which requires a teacher to practice instructional and social

skills that help students to interact constructively with their

peers by encouraging expressions of ideas, opinions and f eelings;

rule 6A - 10.096(1), which requires a teacher to resolve discipline

problems pursuant to the policies of the school, rules of the

district and State Board, and Florida statutes; rule 6A -

10.096(2)(c), which requires a teacher to identify inappropriat e

behavior and employ appropriate techniques for correction; rule

6A - 10.096(4), which requires a teacher to use management

techniques appropriate to a particular setting; rule 6A - 10.099(2),

which requires a teacher to possess effective human and

interperso nal relations skills and encourage and support behavior

that reflects a feeling for the dignity and worth of other people;

rule 6A - 10.099(3), which requires a teacher to possess effective

human and interpersonal relations skills and demonstrate

instruction al and social skills that assist others to interact

constructively; rule 6A - 10.099(4), which requires a teacher to

possess effective human and interpersonal relations skills and

provide leadership and direction for others by appropriate

example; rule 6A - 10 .099(9), which requires a teacher to possess

effective human and interpersonal relations skills and apply

instructional and social skills in deve loping positive self -

concepts; s ection 112.311(6), Florida Statutes, which requires a

public employee to observ e the highest standards of ethics;

s ection 112.317(b), Florida Statutes, which prohibits any public

employee from corruptly using or attempting to use her official

position to secure a special privilege; School Board Policy

6.301(3)(b), which provides disc iplinary action for immoral or

indecent conduct, abusive or discourteous conduct or language to

students, violation of any rule, violation of any safety rule,

violation of any provision of the Code of Ethics, Principles of

Professional Conduct, standards o f Competent and Professional

Performance or Code of Ethics for public officers, inappropriate

or disparaging remarks to or about students or exposing a student

to unnecessary embarrassment or disparagement, or inappropriate

methods of discipline; School Bo ard Policy 6.302, which requires

all employees to refrain from any speech, conduct, activity or

behavior that is reasonably interpreted as abusive, profane,

intolerant, menacing or intimidating, any act of violence,

intimidation, abuse or harassment in the workplace, and any

behavior that is reasonably interpreted as primarily motivated to

harass, intimidate, unreasonably annoy, or threaten in the

workplace; School Board Policy 3.40(1), which provides that a

teacher ' s first obligation is to provide a safe, secure, and

orderly learning environment; School Board Policy 5.32, which sets

zero - tolerance for victimization of students; School Board Policy

1.20(1)(g), which provides that all students have the right to a

safe and trusting environment; School Board Po licy 3.43, which

provides that all students shall have an educational setting that

is safe, secure, and free from harassment of three types and

retaliation of two types; the school ' s faculty - staff handbook,

which imposes five duties and prohibitions on tea chers; r ule 6A -

5.056(1), which prohibits immorality or conduct inconsistent with

standards of public conscience; an uncited prohibition against

moral turpitude; and rule 6A - 5.056(2), which prohibits misconduct

in office. The Petition alleges that these vi olations constitute

ju st cause for termination under s ection 1012.33, Florida

Statutes.

Respondent duly requested a formal administrative hearing.

On December 9, 2013, the parties filed a Joint Prehearing

Statement. Petitioner stated its position as f ollows:

" Petitioner alleges that Respondent ' s conduct violated [the

sources cited in the Petition]. " Elsewhere, though, the parties

agreed that the " issues of law that remain for determination " are:

1. Whether Respondent did violate School

Board rule 6. 301(2).

2. Whether Respondent did violate School

Board rule 6.301(3)(b)(vii) (immoral or

indecent conduct).

3. Whether Respondent did violate School

Board rule 6.301(3)(b)(ix) (abusive or

discourteous language to . . . students,

visitors or vendors).

4. Whether Respondent did violate School

Board rule 6.301(3)(b)(xix) (violation of any

rule, policy, regulation, or established

procedure).

5. Whether Respondent did violate School

Board rule 6.301(3)(b)(xxvi) (violation of

safety rules).

6. Whether R espondent did violate School

Board rule 6.301(3)(b)(xxix) (any violation of

the Code of Ethics of the Education

Profession, the Principles of Professional

Conduct for the Education Profession, the

Standards of Competent and Professional

Performance, or the Code of Ethics for Public

Officers and Employees).

7. Whether Respondent did violate School

Board rule 6.301(3)(b)(xxxi) (inappropriate or

disparaging remarks to or about students or

exposing a student to unnecessary

embarrassment or disparagement).

8 . Whether Respondent did violate School

Board rule 6.301(3)(b)(xxxviii).

Any inconsistency in the Prehearing Stipulation as to the

legal provisions allegedly violated is irrelevant because the

narrower statement of legal issues captures all that are nece ssary

for the disposition of this case. However, the Prehearing

Stipulation reduces the " issues of fact that remain for

determination " to:

1. Whether [Respondent] used inappropriate

language directly with or in the presence of

students.

2. Whether [Res pondent] then interfered with

witnesses in 3 separate ways in order to have

the witnesses recall events as she wanted them

to.

On its face, the Prehearing Stipulation drops Respondent ' s

three alleged failures to act. The opening statement does not

identi fy individually the three failures to act as grounds for

termination, although it alludes to them cumulatively in the

assertion that Respondent allowed eighth - gr ade students to go

after R. W. (Tr. 13) It appears that the failure to state in the

Prehearin g Stipulation the three failures to act stated in the

Petition was inadvertent. No more than one hour of the 16.5 hours

of hearing was devoted to the factual issues stated in the

Prehearing Stipulation. Nearly all of the remaining hearing time

was devote d to Respondent ' s failures to act, and Respondent never

objected to any of this evidence on the ground of relevance. It

could be said that the parties tried these three issues by

consent. Creel v. Dist. Bd. of Tr. of Brevard Comm. Coll. , 785

So. 2d 1285 (Fla. 5th DCA 2001) (dictum) (employment termination

case). It is probably more accurate, though, to note that the

parties tried these three issues because they were identified in

the Petition and their omission from the Prehearing Statement was

inadverte nt.

On October 28, 2013, Respondent filed an Unopposed Motion for

Order S etting Forth Parameters of Confidential Student - Identifying

Information. Among other things, the motion requested an Order

sealing exhibits that mentioned the names of students. On

October 29, 2013, the Administrative Law Judge entered an Order

granting the motion, under the authority of Rhea v. Sante Fe

College , 109 So. 3d 851 (Fla. 1st DCA 2013), but denying the

request to seal exhibits. The Order requires the parties to

redact s tudent - identifying information from the exhibits, under

authority such as Johnson v. Deluz , 875 So. 2d 1 (Fla. 4th DCA

2004).

At the hearing, Petitioner called 15 witnesses and offered

into evidence 12 exhibits: Petitioner Exhibits 1 - 11 and 13.

Responden t called six witnesses and offered into evidence no

exhibits. All exhibits were admitted except Petitioner Exhibits

3, 7 - 8, and 10 - 11.

Concerned with the delay in the filing of the transcript, on

January 27, 2014, the Administrative Law Judge entered an O rder on

Filing Proposed Recommended Orders, which set a deadline of the

earlier of ten days after the filing of the transcript or

February 27, 2014, for the filing of proposed recommended orders.

The court reporter filed the transcript on the following d ay, so

proposed recommended orders were due to be filed by February 7,

2014.

Respondent filed a proposed recommended order on February 7,

2014. On the following workday, February 10, Petitioner filed an

Opposed Motion for Extension of Time to File Propo sed Recommended

Order, requesting until February 14 to file its proposed

recommended order because it had misunderstood the deadline stated

in the January 27 Order. The motion is denied as moot, given the

recommendation set forth below.

FINDINGS OF FACT

I. Introduction

1. Respondent has been teaching for 30 years. At all

material times, she has held a professional service contract,

pursuant to s ection 1012.33, Florida Statutes.

2. For the past 13 years, Respondent has taught at Northport

K - 8 School. She taught at this school until she was suspended

without pay, pending termination, for the incidents of March 20,

2013, which are the subject of this case.

3. During second period on March 20, 2013, Respondent was

teaching a seventh - grade class. One o f the students, R. W.,

misbehaved. Respondent cautioned him to sit down and be quiet.

Instead of doing so, R. W. asked her, " H ow do you know that I ' m

the only one talking? " Respondent again instructed him to be

quiet, to which the student replied, " I wi sh I could cuss a

teacher out right now. " Respondent did not reply. Several nearby

students heard this exchange and nothing more of significance.

4. After the bell rang, R. W. proceeded to his next class,

which was taught by Sandra Tyndale - Harvey, whose classroom is in

the same hallway as Respondent ' s classroom.

5. During the three - or four - minute interval between second

and third periods, Respondent visited another teacher, Kalyn Nova,

whose classroom is between the classrooms of Respondent and

Ms. Tyn dale - Harvey.

II. " Inappropriate Language " and

Three Alleged Failures to Act

6. Respondent told Ms. Nova about the incident involving

R. W. during the previous period. Although she was speaking in a

whisper, she was upset and was overheard by D. S., an eighth - grade

student in Ms. Nova ' s third - period class.

7. According to D. S., he overheard Respondent tell Ms. Nova

that R. W. had said to her: " If you don ' t shut the ' F ' up, I ' m

going to beat the shit out of you, " or words very close to that

effec t, including the abbreviated swear word, the unabbreviated

swear word, and the threat of violence.

8. Ms. Nova and Respondent recalled the statement

differently from D. S., but similar to each other. Ms. Nova

testified that Respondent stated that R. W. h ad said, " If you

don ' t stop talking to me, I ' m going to beat the shit out of you. "

Respondent testified that R. W. had said, " If you say my name one

more time, I ' m going to slap the shit out of you, " implying that

this was what Respondent told Ms. Nova th at R. W. had said.

9. The differences in language among all three statements

are immaterial. All three versions capture a threat to physically

beat Respondent and a hair - trigger precondition to the beating:

failing to stop speaking or saying R. W. ' s nam e one more time.

All three versions also use the word, " shit. "

10. Respondent ' s use of this vulgarity was not inappropriate

for three reasons. First, Respondent was merely recounting what

she understood that R. W. had said to her. Based on this record,

Respondent was wrong; R. W. never said anything like this to her.

But Respondent is not charged with fabricating this statement.

Although R. W. did not say it, Petitioner has failed to prove that

Respondent intentionally misquoted the statement, such th at her

use of " shit " in Ms. Nova ' s classroom might have been

inappropriate. It is at least as likely that Respondent

misunderstood R. W. to have threatened Respondent using the word,

" shit. "

11. Second, Respondent was visibly upset when she recounted

wh at she had thought R. W. had said to her. And third, despite

the fact that she was upset, Respondent took a reasonable

precaution -- i.e., whispering -- to avoid being overheard by other

students, even though she was unsucc essful in this effort.

Perhaps beca use she was upset, Respondent ' s speech was loud enough

for a nearby student to overhear it.

12. After recounting R. W. ' s statement to Ms. Nova,

Respondent walked over to D. S. and M. B. , who were seated next to

D. S. D. S. knew Respondent because he had taken a class from her

the previous school year. Respondent asked D. S. if he would talk

to R. W. because he and R. W. were friends and see what was going

on with him. The incident during second period was not the sole

reason that Respondent might have w ondered what was going on with

R. W., whose behavior and academic performance had been

deteriorating recently.

13. By this time, the bell had rung, and Respondent was

walking toward the classroom door to return to her classroom.

D. S. and M. B. asked Ms . Nova if they could go to the restroom.

Ms. Nova said that they could, so D. S. and M. B. exited the

classroom directly behind Respondent, who held open the classroom

door for them.

14. Hallway camcorders recorded much of what followed. The

camcorders of main interest are identified in the video as Cameras

5 and 6. Located in clos e proximity to each other, these cameras

display opposite ends of the same hallway. Thus, a person walking

toward one camera will eventually walk off the bottom of the

frame, only to appear at the bottom of the frame of the other

camera.

15. A small portion of the hallway, directly beneath both

cameras, is not covered by either camera, so a person would not

instantly appear in the frame of the other camera as soon as she

lef t the frame of the first camera. The video is timestamped to

thousandths of a second, and, at least at the level of seconds,

the times for the two cameras are closely synchronized. If the

cameras are out of sync at all, it is by no more than a couple of

seconds.

16. The video from Camera 6 reveals that Respondent held

open the door for D. S., who passed through the door immediately

ahead of Respondent. Respondent released the door, but, before it

had swung closed, M. B. passed through the door a few ste ps behind

D. S. Both boys walked in the direction of Ms. Tyndale - Harvey ' s

classroom.

17. Rather than proceed in the opposite direction, toward

her occupied classroom, Respondent stopped in the middle of the

hallway and then followed the two boys for abo ut six seconds, as

they approached and stopped at the door of Ms. Tyndale - Harvey ' s

classroom. Both boys looked directly at Respondent, who, for two

to three seconds, might have talked to the boys, but it is

impossible to know for sure because her back was to the camera.

18. Respondent suggests that she counseled the boys not to

run in the hallway, but clearly they were not running. Also,

considering that third period had already begun, it is unlikely

that, even if two eighth - grade boys were running down the hall,

Respondent would so diligently supervise them, even to the extent

of following them down the hall for six seconds in the opposite

direction of her classroom, and completely ignore the needs of the

classroom of her students awaiting her arrival. It appears, then,

that Respondent said something to the boys, and it had nothing to

do with not running in the hallway.

19. Just before the boys entered Ms. Tyndale - Harvey ' s

classroom, Respondent turned around and started to walk up the

hall toward her cl assroom. Seven seconds after entering

Ms. Tyndale - Harvey ' s classroom, D. S. and M. B. reentered the

hallway with R. W. By this time, Respondent was out of range of

Camera 6, but she was within range of Camera 5.

20. The video from Camera 5 reveals th at Respondent did not

immediately enter her classroom. Instead, for about ten seconds,

Respondent stared down the hall in the direction of Ms. Tyndale -

Harvey ' s classroom. Based on the timestamps on the two videos,

Respondent saw D. S. and M. B. leave the classroom with R. W., and

she saw the boys walk R. W. across the hall, where one of the

eighth - grade boys opened the door of another classroom, which was

occupied at the time. At this point, Respondent entered her

classroom, so she did not see what follo wed in the hallway.

21. The circumstances under which R. W. left Ms. Tyndale -

Harvey ' s classroom are difficult to establish. D. S. testified

that he asked to talk to R. W., but he did not say who m he asked.

R. W. testified that two boys -- D. S. and A. S. - - entered

Ms. Tyndale - Harvey ' s classroom and asked the teacher if they could

take R. W. because Respondent needed to talk to him. An

especially reliable student witness, S. W., testified that she

heard the boys tell R. W. that Respondent needed him, and he thus

left the classroom with them.

22. Ms. Tyndale - Harvey testified that, by the time that she

took attendance toward the beginning of third period, R. W. was

not in her classroom. When she asked if anyone knew where he was,

several of the students said that he was talking to Respondent.

23. The hallway was clear when the boys and R. W. left

Ms. Tyndale - Harvey ' s classroom, so third period had started, but

it is possible that the teacher had not yet taken attendance by

the time that R. W. had left. G iven the statements of the other

students and presence of D. S. and M. B. in the classroom for a

total of only seven seconds, it is more likely than not that they

persuaded R. W. to join them in the hall without informing or

asking Ms. Tyndale - Harvey.

24. The video from Camera 6 reveals that no one left the

second classroom to join D. S., M. B., and R. W. in the hall.

The three boys went down the hall, still within range of Camera 6,

but no longer being observed by Respondent. D. S. or M. B. ducked

into a third classroom, from which, in short order, four students

joined them in the hall.

25. Up to this point, R. W. was being escorted, but did not

appear restrained. While standing in the hall at the door of the

third classroom, R. W. stood by himself, only two or three steps

from his classroom, but making no attempt to reenter his

classroom.

26. However, almost immediately after the four boys joined

D. W. and M. B. in the hallway, several of the boys physically

confronted R. W., who tried to escape up the hall. One of the

boys grabbed him after only a couple of steps and R. W. stumbled.

Now surrounded by five or six boys, R. W. kneeled on the floor as

the boys grabbed at and pushed him. One of the boys removed his

cloth belt and swatted at R. W. ' s lower torso seven times, as

three of the other boys held R. W. against the wall.

27. The evidentiary record does not establish that R. W.

suffered any physical injuries as a result of this incident, whose

intensity is impossible to describe. The boy s are relatively far

from Camera 6, and any views of R. W. are intermittent due to the

movement of him and the other boys during the incident. Clearly,

though, whatever level of intensity that the incident attained,

tapered off considerably after about 30 seconds.

28. About one minute after the start of the incident, the

media specialist, who has worked at the school in her present

position and as a teacher for 28 years, entered the hallway and

walked right by the boys. She gave them a look, but noted nothing

out of order -- besides, one hopes, the presence of six students

loitering in the hall in the middle of third period.

29. The media specialist continued walking up the hall. The

students followed her five or six steps behind. At this point,

two students were holding R. W., possibly by his backpack, which

had remained in place during the hallway incident. As these three

boys approach Camera 6 -- and thus were clearly depicted right in

front of the lens -- the boys ' grasp of R. W. is light, and R. W. is

smiling. The other four boys are trailing the first three and are

talking in pairs, paying no attention to R. W.

30. Based on the foregoing, Petitioner proved that

Respondent was aware that D. S. and M. B. left Ms. Nova ' s

classroom and headed towa rd R. W. ' s classroom, departed

Ms. Tyndale - Harvey ' s classroom with R. W., and walked across the

hall with R. W. and opened the door of another, occupied

classroom. Petitioner also proved, of course, that Respondent

never intervened with the boys during th ese actions.

31. Petitioner proved that Respondent had just asked one of

the boys to talk to R. W. before he left the classroom to visit

Ms. Tyndale - Harvey ' s classroom. Even in a preponderance case, it

is impossible to infer that Respondent knew or reaso nably should

have known that D. S. ' s walking to and into Ms. Tyndale - Harvey ' s

classroom meant that he was going to act on her request. But this

is a reasonable inference as soon as D. S. emerged from the

classroom with R. W., especially given the proximit y in time

between Respondent ' s request and D. S. ' s action in retrieving

R. W. from class.

32. Seeing D. S. and M. B. walking R. W. across the hall and

open t he door of another occupied classroom establishes the

inference that Respondent knew or reasona bly should have known

that the boys were not merely going to talk to R. W. about what

might be wrong. D. S. and M. B., as well as all of the other

eighth - grade boys, were much larger than R. W., so D. S. and M. B.

did not need allies in order to talk to R . W. safely. More

likely, the presence of allies was at least for intimidation, or

worse.

33. The Petition alleges a duty to act based on Respondent ' s

having just heard one or both of the students ask if they could

confront R. W. The evidentiary recor d does not establish such a

request. However, Petitioner ' s opening statement predicates the

duty to act on Respondent ' s instruction to one of the boys to talk

to R. W. (Tr. 15) As discussed in the Conclusions of Law, the

point here is that Respondent ha s established a specific basis for

notice and a heightened duty to act on Respondent ' s part, and

basis alleged in the Petition -- D. S. ' s asking Respondent if he may

confront R. W. -- is close in time and content to the proved basis --

asking D. S. to talk to R. W.

III. Interlude

34. The media specialist who had passed the boys in the hall

was headed to Respondent ' s classroom to schedule an author visit.

The media specialist entered the classroom and, four or five

seconds later, so did the six students and R. W. The media

specialist remained in Respondent ' s classroom for a little over

one minute. About 20 seconds after she left the room, so did the

six students and R. W.

35. The boys urged R. W. to apologize to Respondent. He did

so once, but laughingly. Urged by the boys to apologize again,

R. W. did so, the second time more sincerely. Respondent thanked

R. W. for the apology, but said that she was still going to have

to write a referral. Respondent said nothing else to R. W.

36. The boys escorted R . W. down the hall, past his

classroom, and into an adjoining hall, where they walked him into

a restroom. From the video, it appears that one of the boys

locked the door behind them. The boys remained in the restroom

for less than one minute. R. W. the n walked out of the restroom.

37. About 15 minutes after the boys had left Respondent ' s

classroom, the Dean ' s clerk went by the classroom and informed

Respondent that R. W. had told her that he had been " jumped in the

boys ' bathroom " by six boys. The c lerk added that R. W. had told

her that the boys had attacked him on Respondent ' s instruction.

The clerk told Respondent that she was taking R. W. to the front

office so he could tell administrators what had happened.

IV. Three Alleged Instances of Stu dent Witness Tampering

38. Within three minutes after the clerk and Respondent

parted, the six eighth - grade students involved in the hallway

incident (plus another student who does not appear to have been

involved) entered Respondent ' s classroom. They me t with

Respondent in a separate planning room that was in the back of the

classroom. Respondent testified that she asked what had happened,

and the boys told her about the incident in the hall -- with one boy

saying that he had removed his belt, but he had hit the floor with

it. Respondent testified that they would have to tell the Dean

what they had done. About five minutes after entering

Respondent ' s classroom, the six students left it.

39. On this record, it is impossible to find that that

Respondent s aid anything more to the boys. It is thus impossible

to find that Respondent tried to influence or interfere with these

students in terms of what they would tell school investigators.

40. The second alleged instance of interfering with student

witnesse s involves Respondent ' s third - period class, which

witnessed the eighth - grade students ' production of R. W. before

Respondent. One student from this class, D. D., testified that,

after Respondent had finished meeting with the boys in the

planning room, she asked the class what would R. W. have looked

like if he had been beaten up, and the class responded with

suggestions. Although this student testif ied that R. W. did not

look as if he had been beaten up, he did not testify that

Respondent ever followed up with the obvious quest ion of whether

R. W. looked as if he had been beaten up to the students.

41. Another student from this class, M. C., testified, but

was not asked what Respondent had said to the class after talking

to the boys in the planning room. The only other student from

this class called as a witness, V. S., was also not asked about

any comments that Respondent made to the class after talking to

the boys in the planning room.

42. It appears that, at hearing, Petitioner decided not to

press the second alleged instance of interference with student

witnesses. Any implication by Respondent that R. W. did not look

beat en up while he was in her classroom was no more an attempt to

influence the students than a statement asking them to remember

wh en R. W. was in the classroom: both statements were true.

43. Petitioner thus failed to prove any attempt by

Respondent to influence student witnesses on these first two

alleged occasions.

44. However, at lunch on the day of the incident, Respondent

vis ited some of her second - period students in the cafeteria. Five

students concerning this incident were called as witnesses:

S. W., C. T., K. H., L. J., and J. R. All of them were in R. W. ' s

second - and third - period classes.

45. S. W. was an especially impressive witness. She also

appeared to be quite fond of Respondent. S. W. testified that

Respondent approached her and some friends while they were eating

and asked if R. W. had said that he had been hurt, and S. W.

replied that he had not. Respondent also asked if S. W. or her

friends had heard R. W. say during second period, " If she opens

her mouth one more time, I ' m going to beat the shit out of her. "

Neither S. W. nor her friends could recall that; S. W. recalled

that R. W. had said only, " S ometim es I wish I could curse out a

teacher. "

46. C. T. was at lunch when Respondent approached him and

asked if he and his friends remembered when R. W. had said, " If

this bitch won ' t shut up, I ' m going to knock her on the floor. "

Neither C. T. nor his friend s recalled this statement. C. T.

testified that R. W. said in second period, " I wish I could cuss

out a teacher right now. "

47. K. H. testified that Respondent approached him at lunch

and asked if he had heard R. W. say that " he wished he could knock

t hat bitch the fuck out. " K. H. replied that he not heard any

such statement. K. H. testified that R. W. said that he had

wished he could cuss out teachers, or words to that effect.

48. L. J. testified that he did not recall anything, except

that Respo ndent approached him during lunch and asked if R. W. had

said " anything about he was going to beat the shit out of me. "

49. J. R. testified only that Respondent approached him at

lunch and asked if he recalled that R. W. had used a curse word at

her in class.

50. Petitioner has proved that Respondent asked leading

questions to each of these five students. Although the leading

questions framed what Respondent apparently had understood R. W.

to have said, not a single witness recalled any such statement

from R. W. Under the circumstances, including the fact that

Respondent had no role in conducting an investigation of her acts

and omissions, the leading questions constituted improper

influencing of student witnesses. Despite what Respondent

understood R . W. to have said, the leading questions suggested to

these student witnesses that R. W. ' s statement was physically

threatening, when it was not, and used one or more swear words,

when it did not.

CONCLUSIONS OF LAW

51. DOAH has jurisdiction over the sub ject matter.

§§ 120.569, 120.57(1), and 1012.33(6)(a)2., Fla. Stat.

52. Petitioner has the burden of proving the material

allegations by a preponderance of the evidence. Dileo v. Sch. Bd.

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

53. Section 10 12.33(6)(a), Florida Statutes, provides for

the dismissal, at any time, of an employee with a professional

service contract for " just cause. "

54. Due process requires that Petitioner inform Respondent

of the grounds for the proposed adverse employment act ion.

MacMillan v. Nassau Cnty. Sch. Bd. , 629 So. 2d 226 (Fla. 1st DCA

1993). See Trevisani v. Dep ' t of Health , 908 So. 2d 1108 (Fla.

1st DCA 2005).

55. The Petition is long on what was violated -- 46

authoritative provisions -- but short on a clear statem ent of what

Respondent did and did not do to violate any or all of these

provisions. On its face, the Petition clearly identifies three

failures to act and three instances of influencing students '

recollections of important facts. With an assist from the opening

statement, the allegation of " inappropriate language " focuses on

Respondent ' s whispered utterance to Ms. Nova of the word, " shit. "

The Petition therefore identifies seven grounds for termination.

56. Aside from disregarding the omission of the t hree

failures to act from the Prehearing Stipulation, given the

difficulty of ferreting out the issues from Petitioner ' s

pleadings, the Administrative Law Judge will not allow Petitioner

to raise other issues, whether emerging from the hearing or

Petitione r ' s construction of its own pleadings.

57. Two such issues emerged in Petitioner ' s opening

statement. Petitioner cited Respondent ' s failure to write R. W. a

referral, during or immediately after second period, and her

failure to demand hall passes from the eighth - grade students who

had brought R. W. into her classroom. Neither the Petition nor

the Prehearing Stipulation mentioned these omissions as grounds

for termination, and the Administrative Law Judge declines to

treat these omissions as such groun ds at this late stage.

58. It is not that the incident in Respondent ' s third - period

classroom could not have supported allegations justifying

Respondent ' s termination. On this record, Respondent ' s most

egregious failure to act was during this incident. A subsidiary

failure was not demanding hall passes, but the overarching failure

was not securing R. W. until he could be escorted back to his

classroom by an adult. Respondent ' s duty toward R. W. was at its

highest because of her supervisory authority o ver students

physically present in her classroom. Her knowledge was at its

most certain because Respondent had to know that the six eighth -

grade boys had decided to deal with R. W. for the disrespect that

he had shown Respondent earlier in the day, rather than merely ask

him what was wrong. But this grave omission was never pleaded,

and, in view of the confusion already caused by Petitioner ' s

casual approach to pleading, raising this issue in opening

statement was too little, too late.

59. Perhaps the most prominent of the unpled issues is

whether Respondent dispatched the eighth - grade boys to deal with

R. W. for the disrespect that he showed her earlier in the day, as

distinct from asking D. S. to talk to him. There is no

allegation -- or evidence, besi des R. W. ' s claim -- that she did so.

60. Petitioner ' s practice of pleading extraneous details

contributes to the confusion of its pleadings as to this issue.

Some of the pleaded irrelevancies are harmless, such as the

passing of the media specialist in the hallway or the appearance

of R. W. ' s sister outside the restroom. But the pleading of

Respondent ' s statements and question to R. W., while in her

classroom, has the potential of causing serious confusion as to

the issues.

61. The first statement a nd question allegedly uttered by

Respondent to R. W. could have been treated as a confession that

that Respondent had dispatched the eighth - grade boys to deal with

R. W. -- but, as noted above, Petitioner has not alleged this basis

for termination. This sta tement and question could have been

treated, on their face, exclusively as attempts to unduly

embarrass R. W., without regard to the t ruth of the statement -- but

Petitioner did not identify this issue until the opening

statement. (Tr. 17) Again, this is t oo little, too late.

62. Another unpled issue is Respondent ' s request that D. S.

talk to R. W., which impermissibly assigned to a student a duty of

a teacher or administrator. Although this request establishes

Respondent ' s knowledge and duty to interv ene later in the hallway,

Petitioner ' s failure to cite the request itself as a ground for

termination precludes its use for that purpose at this point.

63. As for the three alleged failures to act, Petitioner has

proved what Respondent observed in the hal l immediately before the

hallway incident and that she failed to intervene. With the

second and third failures, Petitioner proved that Respondent knew

or reasonably should have known that D. S. and M. B. were

proceeding to deal with R. W. for the disrespe ct that he had shown

Respondent earlier and that Respondent had a heightened duty to

intervene due to her role in creating the heightened risk to which

R. W. was exposed of embarrassment, intimidation, or worse at the

hands of D. S. and the other eighth - gr ade boys. Compare McCain v.

Fla. Power Corp. , 593 So. 2d 500, 503 (Fla. 1992) (in a negligence

context, " as the risk [created by a defendant] grows greater, so

does the duty [that the defendant owes an injured party] " );

Crislip v. Holland , 401 So. 2d 1115 , 1117 (Fla. 4th DCA 1981)

("The extent of the defendant's duty is circumscribed by the scope

of the anticipated risks to which the defendant exposes others. ") .

64. On these facts, Respondent ' s second and third failures

to intervene with D. S. and M. B . violated the following

Principles of Professional Conduct, Florida Administrative Code

Rule 6A - 10.081(3)(a) and (e), which provides that a teacher:

(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.

* * *

(e) Shall not intentionally expose a student

to unnecessary embarrassment or disparagement.

As violations of the Principles of Professional Conduct, these are

also vi olations of School Board Policy 6.301(3)(b)(xxix).

65. Specifically, Respondent failed to make reasonable

effort to protect R. W. from conditions harmful to learning or his

mental or physical health or safety by failing to intervene when

she saw D. S. and M. B. remove R. W. from this class and when she

saw them walk across the hall and open the door of an occupied

classroom. This failure arose, alternatively, from Respondent's

knowledge that she had asked D. S. to talk to R. W. or her

heightened duty due to her role in exposing R. W. to greater risks

when she asked D. S. to talk to him. The decision not to

intervene, under these circumstances, intentionally exposed R. W.

to unnecessary embarrassment.

66 . Petitioner has also proved that Respondent influen ced

several student witnesses at lunch when she asked them leading

questions about what they had seen or heard. This communication

also violates rule 6A - 10.081(3)(a) and (e) and School Board Policy

6.301(3)(b)(xxix).

67 . Petitioner has failed to prove th e first alleged failure

to act, the first two alleged instances of influencing student

witnesses, and the alleged inappropriate language.

6 8 . School Board policy 6.301(3)(a) calls for progressive

discipline. The parties have not addressed this issue. However,

even if Resp ondent had no prior discipline, progressive discipline

would not preclude termination due to the egregiousness of

Respondent ' s failures to act. In her second failure to act,

Respondent failed to prevent the students from discharging t he

duty that, assigned to them by Respondent, was exclusively that of

Respondent and the administration. In her third failure to act,

Respondent failed to prevent the student misconduct that was to

follow. Given Respondent ' s role in creating the heighten ed risk

of student misconduct, these two omissions are inexcusable.

RECOMMENDATION

It is

RECOMMENDED that Petitioner enter a final order finding

Respondent guilty of the above - cited violations of the Principles

of Professional Conduct and School Board poli cy and terminating

her employment.

DONE AND ENTERED this 12th day of February , 2014 , in

Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

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 12th day of February , 2014 .

COPIES FURNISHED:

Mark S. Wilensky, Esquire

Dubiner and Wilensky, LLC

Suite 103

1300 Corporate Center Way

Wellington, Florida 33414 - 8594

Leslie Jennings Beuttell, Esquire

Richeson and Coke, P.A.

Post Office Box 4048

Fort Pierce, Florida 34948

Dena Foman, Esquire

McLaughlin and Stern, LLP

Suite 1530

525 Okeechobee Boulevard

West Palm Beach, Florida 33401

Pam Stewart , Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Matthew Carson, General Counsel

De partment of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Michael Lannon, Superintendent

St. Lucie County School Board

4204 Okeechobee Road

Ft. Pierce, Florida 34947 - 5414

NOTICE OF RIGHT TO SUBMIT EXC EPTIONS

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.