13-000490TTS Broward County School Board vs. Alphonso Joseph Status: Closed Recommended Order on Monday, July 8, 2013.

Summary: Petitioner did not prove, by a preponderance of the evidence, that just cause exists to terminate Respondent's employment. Recommend suspension as discipline for Respondent's use of profanity directed toward students.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 13-0490TTS

ALPHONSO JOSEPH,

Respondent.

/

Pursuant to notice, a hearing was conducted in this case

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

(2012), before Cathy M. Sellers, an Administrative Law Judge of

the Division of Administrative Hearings ("DOAH"), on May 21 and

22, 2013, by video teleconference at sites in Fort Lauderdale

and Tallahassee, Florida.

APPEARANCES

For Petitioner: Eugene K. Pettis, Esquire

Debra Klauber, Esquire Haliczer Pettis & Schwamm, P.A.

1 Financial Plaza, 7th Floor

Fort Lauderdale, Florida 33394-0015

For Respondent: Melissa C. Mihok, Esquire

Kelly and McKee, P.A.

1718 East 7th Avenue, Suite 301

Tampa, Florida 33675-0638

STATEMENT OF THE ISSUE

Whether just cause exists for Petitioner to suspend and

terminate Respondent from his employment as a teacher.

PRELIMINARY STATEMENT

By letter dated January 14, 2013, the superintendent for

Broward County Public Schools notified Respondent Alphonso

Joseph ("Respondent") that he would recommend to Petitioner

School Board of Broward County ("Petitioner"), at its

February 5, 2013, meeting, that Respondent be suspended without

pay and that his employment as a teacher be terminated.

Respondent timely requested an evidentiary hearing pursuant to

sections 120.569 and 120.57(1), and the matter was referred to

the Division of Administrative Hearings for assignment of an

Administrative Law Judge ("ALJ") and conduct of a hearing

pursuant to sections 120.569 and 120.57(1). The final hearing

was scheduled for May 21 through 23, 2013.

On April 25, 2013, Respondent served a subpoena duces tecum

on Petitioner's records custodian, seeking to discover the

disciplinary records of two students who were involved in the

alleged incident giving rise to the proceeding. On May 2, 2013,

Petitioner moved for a protective order to prevent discovery of

these records. On May 20, 2013, the ALJ issued an Order

Granting Protective Order, preventing discovery of the records.

On May 17, 2013, Petitioner filed Motions in Limine, seeking to

exclude student disciplinary records from admission into

evidence, limit the admission of evidence regarding Respondent's

character and employment history with Petitioner, and allow the

use of discovery depositions for hearing testimony if the

deposed witnesses did not appear to testify at the final

hearing. On May 20, 2013, the ALJ issued an Order Regarding

Motion in Limine, ruling that the students' disciplinary records

were inadmissible; limiting the admission of evidence regarding

Respondent's employment history, with the scope of such

limitation to be determined at the final hearing; and reserving

ruling on admission of the depositions until the final hearing.

The final hearing was held on May 21 and 22, 2013.

Petitioner presente d the testimony of Richard Mijon, Christopher

Hugley, and T.L., and offered Petiti oner's Exhibits 2, 3, 4, 9,

10, 12, 13, and 14A through 14E 1 / for admission in to evidence.

Petitioner's Exhibits 2, 3, 4, 9, 10, 13, and 14E were admitted

into evidence without objection; Petitioner's Exhibits 12, 14A,

14B, and 14C were admitted into evidence over objection; and

Petitioner's Exhibit 14D was pr offered but not admitted into

evidence. Respondent presented the te stimony of Ce dric Maddox,

Wendy Bernstei n, Lazonda Harris, Randolph Black, Torrano Fr edrick,

Barry Jackson, and Resp ondent, and offe red Respondent 's Exhibits

2, 3, 4, 5, and 6 for admission into evidence ; Exhibits 2, 4, and

5 were admitted into evidence without object ion, and Exhibits 3

and 6 were admitted over objection.

The two-volume Transc ript was filed on Ju ne 10, 2013, and the

parties were given unti l June 20, 2013, to file their proposed

recommended or ders. Pursuant to the pa rties' joint motions, the

time for filing propos ed recommended orders was extended to

June 27, 2013, then to July 1, 2013. Both parties timely filed

their Proposed Recommende d Orders and both were duly considered in

preparing this Re commended Order.

FINDINGS OF FACT

I. The Parties

1. Petitioner is the School Board of Broward County,

Florida, the agency he ad for the Broward Coun ty Public Schools, a

public school distri ct serving Broward County, Fl orida.

Petitioner is ch arged with the duty to operate, control, and

supervise free public schools within the Br oward County school

district, purs uant to article IX, section 4(n) of the Florida

Constitution and section 10 12.33, Florida Statutes.

2. At all times rele vant to this procee ding, Respon dent was

employed by Petiti oner as a teacher at Arthur Ashe Middle School

("AAMS"), a midd le school within the Broward County school

district.

3. Respondent has been a teacher for a total of 12 years,

having taught at AAMS for ten of those ye ars. He has been

employed by Petiti oner since 2003.

4. Respondent started the 2011 -2012 school ye ar as a sixth

grade language arts teacher. 2 / In late January or early February

2012, Responde nt was asked, and agreed, to assume a new teaching

assignment as a seventh grade lang uage arts teache r, specifically

to prepare seventh grade students to take the Florida

Comprehensive As sessment Test. 3 /

5. Respondent has receiv ed uniformly satisfactory

performance evaluations througho ut his teaching career with

Petitioner and enjoys a reputation as an excellent teacher. He

has not previous ly been discip lined.

II. Background

6. The incide nt giving rise to this proceeding occurred on

or about February 16, 2012, wh ile Respondent was teaching a

seventh grade lang uage arts class to whic h he recently had been

assigned.

7. Petitioner alle ges that on that day, Respondent pushed

one student, choked an other student, and used profanity toward the

students in the class.

8. The Browar d District Schools Police Department conducted

an investigation of these alleged actions and pres ented the case

to the Professional Standards Commit tee ("PSC") for a

determination of probable cause. The PSC found prob able cause

that Respondent engage d in the allege d conduct, and recommended to

the Superintende nt for Broward County Public Schools that

Respondent be su spended without pa y pending final disposition of

the matter and that he ultima tely be terminated from his

employment as a teacher. The Superintendent confirmed this

recommendation , and on or abou t February 5, 20 13, Petitioner

suspended Resp ondent without pay and to ok proposed action to

terminate him from his employment as a teacher with Broward County

Public Schools. III. Incident Givi ng Rise to Charges

9. Respondent taug ht the seventh grade language arts class

during the first instructional period of the day. On the day of

the incident, Re spondent timely arri ved at the class but

thereafter was summon ed to the office by the head guidance

counselor to deli ver a report.

10. Two substitute teachers , Christopher Hu gley and Joyce

Utley-Smith, were in the classroom at that time. Respondent was

the designated le ad teacher that day and the substitute teachers

were assigned to assist him.

11. Respondent estimated th at he was abse nt from the

classroom for appr oximately five minutes. Upon his return, he

found, in his word s, "chaos." No twithstandin g the presen ce of the

two substitute teachers ——who apparently took no effe ctive action

to control the class— —the students were throwing candy and

textbooks, talking loud ly, using profan ity, and walkin g around the

room rather than stayin g seated in their desks. 4 /

12. Respondent began settin g up a laptop computer and

projector and passing out instructio nal packets to th e students in

preparation to cond uct his le sson.

13. Three female students in the class asked Respondent for

permission to go to the restroom but he re fused, consistent with

his class policy of not allowing students to go to the restroom

during class time exce pt in an emergency. 5 /

14. The girls then asked Hugl ey if they co uld go to the

restroom. Notwithstand ing that Respondent di d not allow them to

go, Hugley gave them permission because, in his view, Respondent

was "not prepared" and because he believed th e students would have

ample time to use the restroom and return to class before

instruction started.

15. AAMS has a poli cy that requires al l students who leave

class to be escort ed by a security monitor. Nonetheless, Hugley

did not summon a secu rity monitor to esco rt the girls to the

restroom, and instead allowed th em to go unac companied.

16. Respondent ques tioned Hugley as to why he had allowed

the girls to go to the restroom after he had refused to allow them

to go.

17. As the girls we re returning to the cl assroom, Respondent

heard them in th e hallway and went to the door. He saw them at

the door of a ne ighboring classr oom, causing a commotion with

students in that cl ass. The gi rls then trie d to reenter

Respondent's classroom but he stood in the door and refused to

allow them to re enter because th ey left the cl ass without his

permission.

18. One student, T.W., attemp ted to force her way back into

the classroom by repeat edly trying to duck under Respon dent's arm

or maneuver around him, but he blocked her wa y each time.

Respondent then attempted to close the do or, but T.W. grabbed the

door handle and tried to push Respondent aside. Respondent braced

himself against th e door frame and, in do ing so, touc hed T.W.'s

shoulder to prev ent her from reentering the classr oom. The

persuasive evidence es tablishes that T.W. made the initial contact

with Respondent; that Respondent did not push, shove, or punch

T.W. or any of the ot her girls; and that ne ither T.W. nor any of

the other girls fe ll into each other or on to the floor.

19. Respondent cl osed the door, shutti ng the girls outside

the classroom. Some students , angry at Respondent for not

allowing the girls to reenter the clas sroom, directed profanity at

him. 20. Respondent admits that he responded by directing profanity back at them. At hearing, Respondent expressed sincere

remorse and disappointment with himself for having behaved in

this manner. The evidence establishes that Respondent had not

previously used profanity in dealing with students and that this

was an isolated incident.

21. One student, T.L., was seated at the back of the

classroom, with earphones in his ears, list ening to an electronic

device.

22. The persuasive evidence establishes that T.L. said to

Respondent "I wish you'd say that to me" or some thing to that

effect. Respondent pe rceived this statement as a challenge to his

authority and ap proached T.L. At that point, T.L. stood up from

his desk and his ches t bumped Respondent. Respondent put his

hands on T.L.'s chest to push him away. In course of this

altercation, Respondent and T.L. moved such that T.L.'s back

became positioned ag ainst a cabinet.

23. Respondent credibly test ified that as the altercation

ensued, T.L. repeatedly put his hands into his pockets, apparently

attempting to retr ieve items. Re spondent was conc erned that T.L.

was attempting to retrieve a weapon, so he kept his hands on

T.L.'s chest and remained close to him. At so me point, Respondent

felt T.L. relax, so he , too, relaxed an d released T.L. The entire

incident took plac e in a matter of a few seconds.

24. At that mome nt, Assistant Pr incipal Maddox entered the

classroom and re moved T.L. from the room.

25. The persuasive evidence establishes that T.L. made the

initial physical contact with Respondent; that Respondent pushed

T.L. and put his hands on T.L.'s chest as a means of defending

himself; and that Respondent did not choke T.L.

26. The persuasive evidence further establishes that

Respondent was an effective teacher before this incident and

remains so after the incident. This incident has not impaired

Respondent's effectiveness as a teacher in the school system.

IV. Findings of Ultimate Fact

27. Petitioner seeks to suspend Respondent and terminate

his employment on the basis of "just cause." Sections

1012.33(1)(a) and (6) provide in pertinent part that

instructional staff may be terminated during the term of their

employment contract only for "just cause." See §

1012.33(1)(a),(6), Fla. Stat. (2011). 6 / "Just cause" is defined

to include misconduct in office. § 1012.33(1)(a), Fla. Stat.

28. Petitioner has charged Respondent with committing

misconduct in office. Misconduct in office is defined in

Florida Administrative Code Rule 6A-5.056(3) 7 / 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 .

Fla. Admin. Code R. 6A-5.056(3) (emphasis added).

In order to find Respondent guilty of misconduct under rule 6A-

5.056, not only must Respondent be determined to have violated

rules 6B-1.001 and 6B-1.006, but the violations also must be so

serious as to impair Respondent's effectiveness in the school

system. See McMillan v. Nassau Cnty. Sch. Bd. , 629 So. 2d 226

(Fla. 1st DCA 1993)(where evidence did not establish impaired

effectiveness, there was no basis for determining that teacher

engaged in misconduct warranting termination from employment).

29. Rule 6B-1.001, 8 / the Code of Ethics of the Education

Profession 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 the nurture of a

democratic citizenship. Essential to the

achievement of these standards are the

freedom to learn and to teach and the

guarantee of equal opportunity for all.

(2) The educator's primary professional

concern will always be for the student and

for the development of the student's

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and 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 community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

30. Rule 6B-1.006, 9 / the Principles of Professional Conduct

for the Education Profession in Florida, provides in pertinent

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

or 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 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.

* * *

(5) Obligation to the profession of

education requires that the individual:

* * *

(d) Shall not engage in harassment . . .

which unreasonably interferes . . . with the

orderly processes of education or which

creates a hostile, intimidating, abusive,

offensive, or oppressive environment; and,

further, shall make reasonable effort to

assure that each individual is protected

from such harassment . . . .

31. Although there was conflicting testimony as to whether

Respondent pushed T.W., the persuasive evidence establishes that

T.W. made the initial physical contact with Respondent while

attempting to reenter the room contrary to his direction; that

in bracing himself against the door frame to prevent the girls

from reentering the room, Respondent touched T.W.'s shoulder;

and that Respondent closed the door, shutting the girls out of

the room. The evidence does not establish that Respondent

pushed or punched T.W. or any of the other girls, or that they

fell into each other or onto the floor.

32. There also was conflicting evidence as to whether

Respondent choked T.L. The persuasive evidence establishes that

T.L. made the initial contact with Respondent, which Respondent

interpreted as a sign of aggression, and that Respondent pushed

against T.L.'s chest in order to defend himself. The evidence

does not establish that Respondent choked T.L. Under these

circumstances, Respondent's conduct constituted justifiable

self-defense 10 / because he was fearful that T.L. may have been

searching for a weapon in his pockets.

33. There is no dispute that Respondent used profanity in

addressing the students in the classroom. In doing so,

Respondent violated rule 6B-1.001 by failing to exercise his

best professional judgment in dealing with the students on that

particular occasion. Additionally, Respondent violated rule 6B-

1.006 by exposing the students to conditions that were harmful

to learning. His conduct exposed the students to unnecessary

disparagement; was harassing and interfered with the educational

process on that particular day; and was hostile, abusive, and

offensive. Even though the students directed profane language

toward Respondent, he was not justified, as a professional

educator, to respond in kind.

34. However, the evidence did not establish that

Respondent's effectiveness in the school system was impaired by

this incident. Respondent previously had received only positive

evaluations during his tenure with Petitioner, and the evidence

clearly established that he enjoyed, and continues to enjoy, a

reputation as an excellent teacher, even after the incident.

Respondent had never before used profanity in dealing with

students, and this was a one-time event. Respondent was

remorseful and disappointed with himself for having engaged in

such conduct. In sum, the persuasive evidence establishes that

Respondent's effectiveness in the school system has not been

impaired by this matter.

35. Based on the foregoing, it is determined that

Petitioner did not sustain its burden to demonstrate, by a

preponderance of the evidence, that Respondent's conduct

amounted to a violation of rules 6B-1.001 and 6B-1.006 which is

so serious as to impair his effectiveness in the school system.

Accordingly, Respondent did not engage in misconduct as defined

in rule 6A-5.056.

36. Accordingly, there is no just cause, as required by

subsections 1012.33(1)(a) and (6), to suspend Respondent without

pay for the period commencing on February 5, 2013, 11 / to present,

and to terminate his employment as a teacher.

CONCLUSIONS OF LAW

37. The Division of Administrative Hearings has

jurisdiction over the parties to, and subject matter of, this

proceeding.

38. This is a disciplinary proceeding brought pursuant to

sections 1012.33(1)(a) and (6), Florida Statutes, and Florida

Administrative Code Rules 6B-1.001, 6B-1.006, and 6A-5.056, to

suspend Respondent from his employment commencing on February 5,

2013, to present, and to terminate Respondent's employment as a

teacher with Petitioner. These statutes and rules are penal and

thus must be strictly construed, with ambiguities resolved in

favor of the person charged with violating them. Lester v.

Dep't of Prof'l & Occ. Reg. , 348 So. 2d 923, 925 (Fla. 1st DCA

1977).

39. Respondent is an instructional employee, as that term

is defined in section 1012.01(2). Petitioner has the authority

to suspend or terminate instructional employees pursuant to

sections 1012.22(1)(f) and 1012.33(1)(a) and (6)(a).

40. To do so, Petitioner must prove, by a preponderance of

the evidence, 12 / that Respondent committed the alleged

violations, and that such violations constitute just cause for

dismissal. § 1012.33(1)(a), (6), Fla. Stat. McNeill v.

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

Dileo v. Sch. Bd. of Dade Cnty. , 569 So. 2d 883 (Fla. 3d DCA

1990). "Just cause" is defined to include "misconduct in

office." § 1012.33(1)(a), Fla. Stat.

41. Whether Respondent committed the charged offenses is a

question of ultimate fact to be determined by the trier of fact

in the context of each alleged violation. Holmes v. Turlington ,

480 So. 2d 150, 153 (Fla. 1985); McKinney v. Castor , 66 So. 2d

387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson , 653 So. 2d

489, 491 (Fla. 1st DCA 1995).

42. For the reasons found above, Respondent's conduct in

dealing with T.W. does not constitute misconduct. The evidence

does not establish that Respondent violated rules 6B-1.001, 6B-

1.006, or 6A-5.056 in dealing with T.W.

43. Similarly, Respondent's conduct in dealing with T.L.

does not constitute misconduct. As discussed above,

Respondent's conduct in dealing with T.L. did not violate rules

6B-1.001, 6B-1.006, or 6A-5.056. Further, his actions

constituted justifiable self-defense under Petitioner's Policy

2410.

44. Also as found above, Respondent's conduct in using

profanity toward the students does not constitute misconduct as

defined under rule 6A-5.056. Although Respondent's conduct

violated certain provisions of rules 6B-1.001 and 6B-1.006, the

evidence establishes that this conduct did not impair his

effectiveness as a teacher in the school system. Accordingly,

there is no just cause to terminate Respondent's employment as a

teacher. See Abrams v. Seminole Cnty. Sch. Bd. , 73 So. 3d 385

(Fla. 5th DCA 2011)(extensive use of profanity and abusive

language in the educational setting on one occasion was not

sufficient to impair teacher's effectiveness in the school

system such that dismissal was appropriate or warranted). See

also McMillan , 629 So. 2d at 230.

45. Although the evidence establishes that Respondent did

not commit misconduct as that term is defined in rule 6A-

5.056(3), Respondent nonetheless violated provisions of rules

6B-1.001 and 6B-1.006, as determined above. Although there is

no factual or legal basis for terminating Respondent's

employment, it does not necessarily follow that Respondent

should get off "scot-free" for these rules violations.

Precedent exists for imposing discipline short of termination on

school system personnel for rules violations that do not rise to

the level of misconduct. See Miami-Dade Cnty. Sch. Bd. v.

Singleton , Case No. 07-0559, Fla. DOAH Sept. 21, 2007; Miami-

Dade Cnty. Sch. Bd. Aug. 30, 2007 (discipline imposed where

which educator violated rules but the evidence failed to

establish impaired effectiveness so just cause did not exist to

terminate teacher). See also Miami-Dade County Sch. Bd. v.

Eskeridge , Case No. 07-0559, Fla. DOAH Sept. 21, 2007; Palm

Beach Cnty. Sch. Bd. v. Lawrence , DOAH Case No. 01-2850, Fla.

DOAH Feb. 21, 2002.

46. Here, Petitioner has adopted Employee Disciplinary

Guidelines ("Guidelines") establishing a schedule of offenses

with a recommended range of penalties for each offense,

depending on the relevant circumstances in each case. These

Guidelines provide a basis for imposing discipline for

violations of rules 6B-1.001 and 6B-1.006, where rules

violations do not rise to the level of misconduct constituting

just cause for termination.

47. Under the Guidelines, section II, paragraph (m), any

violation of rule 6B-1.001 constitutes a "Category B" offense,

with the suggested penalty ranging from reprimand to dismissal,

depending on attendant circumstances.

48. Additionally, section III, paragraph (b) authorizes

discipline of an employee for conduct that violates rule 6B-

1.006.

49. The Guidelines establish factors germane to

determining the appropriate penalty. These include, in relevant

part, the severity of the offense; the impact on the students,

educational process and/or community; number of repetitions or

offenses and length of time between offenses, employment

history, the deterrent effect of the discipline, related

misconduct in other employment, pecuniary benefit of self-gain

by the employee, degree of physical harm to the student, length

of employment, and employee's evaluation.

50. Here, in using profanity directed toward the students,

Respondent failed to exercise his best professional judgment.

Additionally, his conduct had a negative impact on the students

and the educational process on that particular day. However,

Respondent had not previously engaged in such conduct and his

contrition indicates he is unlikely to again engage in similar

conduct. His conduct did not inflict harm or physical damage on

the students, and he did not derive any pecuniary or other self-

gain from his conduct. Respondent has been employed by

Petitioner as a teacher at AAMS for ten years without any

previous discipline, has received uniformly satisfactory

evaluations, and has a reputation for being an excellent

teacher.

51. Under these circumstances, the undersigned recommends

that Respondent be suspended without pay for a total of 15 work

days, which constitutes three five-day work weeks. This penalty

takes into account that Respondent's conduct in using profanity

toward the students was inappropriate under any circumstances——

even the extremely challenging ones under which he found himself

that day——but also places this conduct in perspective in

relation to Respondent's excellent, otherwise incident-free

teaching career.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner, Broward County Public

Schools, enter a final order: (1) finding that just cause does

not exist to terminate or suspend Respondent's employment; (2)

imposing a punishment consisting of suspension from employment

for a total of 15 work days for violation of rules 6B-1.001 and

6B-1.006 that does not amount to misconduct in office; and (3)

awarding Respondent back-pay for the period commencing on the

date of his suspension to the date of entry of the final order,

less the amount of salary for the 15-work day suspension period.

DONE AND ENTERED this 8th day of July, 2013, in

Tallahassee, Leon County, Florida.

S

CATHY M. SELLERS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of July, 2013.

ENDNOTES

1/ Petitioner's Exhibits 14A through 14E consisted of the

following depositions: 14A – student P.H., 14B – student L.H.,

14C – student L.G., 14D – student T.W., 14E – Respondent.

2/ Respondent is certified to teach kindergarten through sixth

grade.

3/ Respondent acknowledged that he was somewhat reluctant to

assume this new teaching assignment, in part because of

behavioral issues with this particular class. He agreed to

assume the assignment because he deemed it in the best interest

of the class and the school, but did so with the specific

understanding that he would be provided assistance in classroom

management and discipline so that he could focus on teaching.

4/ By all accounts, the members of this class frequently

exhibited disruptive behavior and, as a group, often were

difficult to control.

5/ Respondent imposed this policy in order to minimize class

disruption caused by students moving in and out of the

classroom.

6/ The 2011 version of Florida Statutes was in effect when the

incident giving rise to this proceeding occurred.

7/ Rule 6A-5.056, entitled "Criteria for Suspension and

Dismissal," was promulgated as rule 6B-4.09 and transferred to

rule 6B-4.009 in 1983. On the same date the rule was

transferred to rule 6B-4.009, it also was transferred to rule

6A-5.056. The version of the rule in effect at the time of the

incident giving rise to this proceeding is alleged to have

in 1983. The most recent amendment to rule 6A-5.056, adopted on

July 8, 2012, is inapplicable to this proceeding because the

incident giving rise to this proceeding occurred before the

amendment's effective date.

8/ The version of rule 6B-1.001 applicable to this proceeding

was adopted in 1982. On January 11, 2013——after the incident

giving rise to this proceeding occurred——this rule was

transferred to rule 10A-10.080.

9/ The version of rule 6B-1.006 applicable to this proceeding

was adopted in 1998. On January 11, 2013——after the incident

giving rise to this proceeding occurred——this rule was

transferred to rule 10A-10.081.

10/ Respondent's Policy 2410,"Workplace Violence," paragraph 6.,

states: "[a]ny employee who acts in 'justifiable self-defense'

when in imminent danger in the workplace will not be subject to

any disciplinary action."

11/ As discussed below, the undersigned recommends a shorter

period of suspension without pay for violations of rules 6B-

1.001 and 6B-1.006 that do not rise to the level of misconduct.

12/ The preponderance of evidence standard requires proof by

"the greater weight 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 Public Sch. , 397 F.3d 441, 446 (6th Cir.

2005)(preponderance of the evidence is "such evidence as, when

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

produces . . . a belief that what is sought to be provided is

more likely true than not true."

COPIES FURNISHED :

Eugene K. Pettis, Esquire

Haliczer, Pettis, and Schwamm, P. A.

One Financial Plaza, 7th Floor

100 Southeast 3rd Avenue

Fort Lauderdale, Florida 33394-0015

Melissa C. Mihok, Esquire

Kelly and McKee, P.A.

1718 East 7th Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33675-0638

Robert Runcie, Superintendent

Broward County School Board

600 Southeast 3rd Avenue

Fort Lauderdale, Florida 33301-3125

Matthew Carson, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Dr. Tony Bennett, Commissioner of Education

Department 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 Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.