14-000271TTS Miami-Dade County School Board vs. Priscilla Parris Status: Closed Recommended Order on Tuesday, August 26, 2014.

Summary: School Board failed to prove by a preponderance of the evidence that just cause exists to suspend Respondent's employment for misconduct in office, gross insubordination, incompetency due to inefficiency, or a violation of School Board policies.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD ,

Petitioner ,

vs. Case No. 1 4 - 0271 TTS

PRISCILLA PARRIS ,

Respondent .

/

RECOMMENDED ORDER

This case came before Admini strative Law Judge Darren A.

Schwartz for final hearing by video teleconference on May 22 ,

201 4 , with sites in Miami and Tallahassee , Florida.

APPEARANCES

For Petitioner: Sara M. Marken, Esquire

Miami - Dade County S chool Board

Suite 430

1450 Northeast Second Avenue

Miami , Florida 3 3132

For Respondent: Mark Herdman , Esquire

Herdman and Sakellarides, P.A.

Suite 110

29605 U.S. H ighway 19, North

Post Office Box 4940

Clearwater, Florida 33761

STATEMENT OF THE ISSUE

Whether just cause e xists for Petitioner to suspend

Re s pondent for 30 days without pay.

PRELIMINARY STATEMENT

On January 15 , 201 4 , at its scheduled meeting, Petitioner,

Miami - Dade County School Board ( Ð School BoardÑ), took action to

suspend Respondent, Priscilla Parris ( ÐRespondentÑ), for 30 days

without pay. Respondent was advised of her right to request an

administrative hearing within 15 days.

On January 16 , 201 4 , Respondent timely requested an

administrative hearing . S ubsequently, the School Board referred

the matter to the Division of Administrative Hearings ( Ð DOAH Ñ ) to

assign an Administrative Law Judge to cond uct the final hearing.

At the request of the parties, t he final hearing initially

was set for April 2, 2014 . On February 18, 20 14, the undersigned

entered an O rder requiring the School Board to file specific

charges by no later than February 28, 2014. O n February 28,

2014 , the School Board filed its N otice of Specific Charges .

On March 20, 2014, the School Board filed an unopposed

motion to continue the final hearing. On March 24, 20 14, the

undersigned entered an O rder resetting the final hearing for

May 22, 2014.

On April 18, 2014, the School Board filed a motion to amend

the notice of specific charges. Respondent did not file a

response in opposition to t he motion. On April 28, 2014, the

undersigned entered an Order granting the School BoardÓs m otion ,

and the Amended Notice of Specific Charges was deemed filed. The

Amended Notice of Specific Charges contains certain factual

allegations , and, based on those factual allegations, the School

Board charged Respondent with the following violations in five

counts : (1) M isconduct i n Office; (2) Gross Insubordination;

(3) Incompetency Due t o Inefficiency; (4) Violation of School

Board Policy 3210 (Standards of Ethical Conduct); and

( 5 ) Violation of School Board Policy 3210.01 (Code of Ethics ) .

The fi nal hearing commenced as scheduled on May 22 , 2014,

with both parties present. At the hearing, the School Board

presented the testimony of Julian E. Gibbs , Aaron Taylor , Lorena

Belloso, Glen Roberts, and Dr. J immie Brown, Jr. The School

BoardÓs Exhibits 1 through 7 , 9 through 1 2 , 14 through 18 , and 21

were received into evidence. Respondent testified on her own

behalf and presented the additional testimony of Avril Nesmith .

Respondent did not offer any exhibits into evidence .

The final hearing Tra nscript was filed on Ju ly 2 4 , 2014 . On

August 4, 2014, Respondent filed an unopposed motion for

extension of time until August 8, 2014, for the parties to file

their proposed recommended orders. On August 5, 20 14, the

undersigned entered an O rder grantin g the motion. The parties

timely filed proposed recommended orders, which were given

consideration in the preparation of this Recommended Order.

Unless otherwise indicated, all rule and statutory

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

alleged violations.

FINDING S OF FACT

1. The School Board is a duly - constituted school board

charged with the duty to operate, control, and supervise the

public schools within Miami - Dade County, Florida.

2 . At all times material to this case, Respond ent was

employed as a teacher at Henry E.S. Reeves Elementary School

(Ð Henry Reeves Ñ), a public school in Miami - Dade County, Florida ,

pursuant to a professional services contract . Respondent was

initially hired by the School Board as a teacher in 19 8 2 .

3 . At all times material to this case, RespondentÓs

employment with the School Board was governed by Florida law, the

School BoardÓs policies, and the collective bargaining agreement

(ÐCBAÑ) between the School Board and the United Teachers of Dade

( ÐUTDÑ).

4 . Julian Gibbs , the principal of Henry Reeves (ÐPrincipal

Gibbs Ñ ) , was authorized to issue directives to his employees,

including Respondent.

The 201 1 - 201 2 School Year

5 . After holding various teaching positions within the

School Board, Respo ndent was assigned to Henry Reeves beginning

with the 2011 - 2012 school year.

6 . On August 18, 2011, Respondent arrived late to work on

her first day at Henry Reeves . Respondent was supposed to arrive

at Henry Reeves at 8:20 a.m., for a pre - planning fac ulty meeting

and to set - up her room, but she did not arrive until after

12:30 p.m. , because she r eported that morning to another school,

Van E. Blanton Elementary School. On August 23, 2011, Principal

Gibbs issued Respondent a Professional Duty and Respo nsibilities

memorandum concerning RespondentÓs tardiness and informed

Respondent that failure to report to work on time in the future

w ould result in further disciplinary action. 1/

7 . S ome time during the next few weeks, Principal Gibbs

conducted an i nf ormal classroom walkthrough of RespondentÓs

class. At that time, Principal Gibbs observed that Respondent

did not have any lesson plans, grades for students, or a Ðprint -

richÑ classroom and outside bulletin board . 2/ On September 16,

2011, Principal Gibbs issued Respondent a P rofessional

Responsibilities memorandum for failing to display current

student work, update and have print - rich classroom and outside

bulletin boards, timely grade and file student assignments, label

data charts , and graph student ass essment results. Respondent

was advised to ensure she fulfilled these responsibilities by

September 20, 2011.

8 . On January 4, 2012, Principal Gibbs issued Respondent a

Professional Responsibilities memorandum for failing to update

outside bulletin bo ards and ensure her desk was organized and

clutter free. The memorandum advised R espondent to ensure she

fulfilled these responsibilities by January 6, 2012.

The 201 2 - 201 3 School Year

9 . On October 17, 2012, Principal Gibbs issued Respondent a

Professio nal Responsibilities memorandum for allegedly not

providing updated lesson plans for a substitute teacher when she

was absent on October 8 and 12, 2012 . However, the School Board

did not prove at the hearing that Respondent failed to provide

updated lesso n plans for a substitute teacher when she was

absent . Although Principal Gibbs testified about the October 17,

2012, memorandum he authored, h e lacked personal knowledge of the

lack of updated lesson plans for the substitute teacher on

October 8 and 12, 2 012 . No witness with personal knowledge of

the l ack of updated lesson plans for the substitute teacher

testified at the hearing. The content of the memorandum is

hearsay.

10. In any event, t he October 17, 2012, memorandum d irected

Respondent to Ðread and review the Code of Ethics cited in The

School Board of Miami - Dade County Bylaws and Policies, 4210.01

and Common Sense Suggestions and School Board Policy 1139,

Responsibilities and Duties for Full - Time Personnel.Ñ Principal

Gibbs informed Respondent that failure to comply with her

Ðprofessional responsibilities may be considered a violation of

School Board and Administrative policies.Ñ

1 1 . On November 29, 2012, Principal Gibbs issued Respondent

a Professional Responsibilities memorandum for arrivi ng late to

two meetings on November 13 and 29, 2012. Principal Gibbs

informed Respondent that it is her Ðprofessional duty and

responsibility to report to all scheduled meetings on time Ñ and

Ðto review all notifications in regards to scheduled meetings an d

events.Ñ Principal Gibbs informed Respondent that failure to

comply with her Ðprofessional responsibilities may be considered

a violation of School Board and Administrative policies.Ñ

1 2 . On December 12, 2012, Principal Gibbs placed Respondent

on s upport dialogue following an observation he made of

Respondent in her classroom. Support dialogue involves a

Ðtwo - way conversationÑ between the principal and teacher to

develop strategies so that the teacher may improve for the next

evaluation.

1 3 . Re spondent was upset that she was placed on support

dialogue. During the support dialogue meeting between Principal

Gibbs and Respondent, Respondent spoke to Pr incipal Gibbs in a

loud manner . Later that day during dismissal, Respondent a gain

spoke to Princ ipal Gibbs in a loud manner , but this time in front

of other teachers. Because of RespondentÓs loud tone of voice

during and after the support dialogue meeting, Principal Gibbs

issued Respondent a Professional Responsibilities memorandum

advising her to Ð immediately refrain from exhibiting

inappropriate behavior, and adhere to all school site and M - DCPS

policies and regulations at all times, specifically School Board

Policies 3210, Standards of Ethical Conduct, 3210.01, and Code of

Ethics. Ñ Respondent was informed that Ð[a]ny recurrence of the

above infraction may lead to further disciplinary actions.Ñ

1 4 . On December 18, 2012, Principal Gibbs held a Conference

For The Record (ÐCFRÑ) with Respondent , because she allegedly

struck a student with a ruler . D uring the conference, Principal

Gibbs provided Respondent with a cop y of School Board Policies

3210, Standards of Ethical Conduct , and 3210.01, Code of Ethics,

and ÐHow to Use Common Sense and Professional Judgment to Avoid

Legal Complications in Teach ing.Ñ Respondent was Ðadvised of the

high esteem in which M - DCPS employees are held and of the

DistrictÓs concern for any behavior which adversely affects this

level of professionalism.Ñ Respondent was Ðreminded of the prime

directive to maintain a safe learning environment for all

students.Ñ Respondent was informed that Ð[n]oncompliance with

these directives will necessitate further review for the

imposition of additional disciplinary measures and will be deemed

as insubordination.Ñ 3 /

1 5 . During the December 18, 2012, conference, Principal

Gibbs issued Respondent a written letter of reprimand . The

written reprimand directed Respondent to: 1) immediately refrain

from inappropriate physical contact/discipline with students;

2) adhere to all School Board policies and regulations at all

times, specifically School Board Policies 3210, Standards of

Ethical Conduct, and 3210.01, Code of Ethics; and 3) conduct

herself, both in her employment and in the community, in a manner

that will reflect credit upon herself and the School Board.

Respondent was informed that Ð[a]ny recurrence of the above

infraction may lead to further disciplinary actions.Ñ 4/

1 6 . On January 16, 2013, Principal Gibbs issued Respondent

ÐAbsences and Tardies From Work Directives , Ñ b ecause Respondent

was allegedly tardy and/or absent from work during the 2012 - 2013

school year on the following occasions:

October 1, 2012: tardy one hour

October 8, 2012: sick one day

October 11, 2012: tardy 1 ½ hour

October 12, 2012: personal on e day

October 25, 2012: sick one day

December 4, 2012: personal one day

December 6, 2012: sick one day

December 12, 2012: sick one day

December 19, 2012: personal .5 day

January 9, 2013: sick one day

January 10, 2013: sick one day

January 15, 2013 : sick one day

1 7 . However, the School Board failed to prove at the

hearing that Respondent was tardy and/or absent from work as

indicated in the directives and accompanying documentation.

Although Principal Gibbs testified about the January 16, 2013,

directives he authored, he lacked personal knowledge of the

tardiness and absences. No witness with personal knowledge of

the tardiness and absences testified at the hearing. The content

of the memorandum and accompanying document ation are hearsay. In

a ny event, Respondent was informed that Ð[n]on - compliance with

the directives will be considered a violation of professional

responsibilities and insubordination.Ñ 5/

1 8 . On February 22, 2013, Principal Gibbs issued Respondent

a Professional Duty and Res ponsibility memorandum because she was

allegedly six minutes late picking up her students from the

cafeteria . Although Principal Gibbs testified about the

February 22, 2013, memorandum he authored, h e lacked personal

knowledge of the incident . No witnes s with personal knowledge of

the incident testified at the hearing. The content of the

memorandum is hearsay. In any event, Respondent was informed in

the memorandum that Ð[i]t is essential that all teachers pick up

their classes on time, especially when other classes are entering

the cafeteria.Ñ

1 9 . On March 14, 2013, Principal Gibbs held a CFR with

Respondent because she ÐgrabbedÑ a student Ðby the armÑ on some

unspecified date and time when the student was attempting to

obtain a set of headphones o ut of his backpack . P rincipal Gibbs

witnessed this incident [ while ] conducting an observation of

Respondent in her classroom . However, at the hearing, Principal

Gibbs provided no further detail regarding the alleged incident

other than indicating that Re spondent ÐgrabbedÑ the student Ðby

the arm.Ñ Ther e was no evidence presented at the hearing that

Respo ndent caused the student any emotional or physical injury .

The student did not testify. 6 / In any event, t he CFR directed

Respondent to : 1) immedia tely refrain from inappropriate

physical contact/ discipline with students; 2) adhere to all

School Board policies and regulations at all times, specifically

School Board Policies 3210, Standards of Ethical Condu c t, and

3210.01, Code of Ethics; and 3) conduct h erself, both in h er

employment and in the community, in a manner that will reflect

credit upon herself and the School Board .

The 2013 - 2014 School Year

20 . The School Board alleged in paragraph 18 of its Amended

Notice of Specific Charges that: Ð O n Sept ember 13, 2013, a

parent reported that her child had been poked under the eye and

Respondent failed to render first aid. When asked about the

incident, Respondent was completely unaware that a student had

been injured [ while ] under her supervision.Ñ 7 /

2 1 . The School Board failed to prove that a student was

poked under the eye on September 13, 2013, while under

RespondentÓs supervision. The parentÓs report is hearsay. No

students , parents , or witnesses to the alleged incident testified

at the hearing . Respondent denied the allegations.

2 2 . In an effort to demonstrate that Respondent is guilty

of the allegations, however, t he School Board points to P rincipal

Gibbs Ós testimony that he Ð p ersonally observed the lead mark

under the childÓs eye . Ñ This o bservation by Principal Gibbs

allegedly occurred at some point on September 13 , 2013 , after the

schoolÓs dismissal of students , and after Ðthe parentÑ returned

to the school with the child. The undersigned finds that

Principal GibbsÓ s testimony is unpersu asive .

2 3 . E ven if Principal Gibbs observed a lead mark under a

childÓs eye at some time after the alleged incident occurred ,

that does not prove that the child was poked under the eye while

under RespondentÓs supervision . The child could have been pok ed

under t he eye at any time and anywhere . Principal GibbsÓs

conclusion that a child was poked under the eye with a pencil

while under RespondentÓs supervision is based on speculation and

hearsay of the parent and students.

2 4 . Nevertheless, on Septemb er 16, 2013, Principal Gibbs

issued to Respondent a Professional Responsibilities memorandum

regarding the alleged incident, requiring her to Ð[e]nsure the

safety and well - being of students at all timesÑ; Ð[m]aintain

close supervision of students at all ti mesÑ; Ð[r]eport

immediately to administration any accidents or incidents

involving student welfareÑ; and Ð[n]otify parents in regards to

any accident or incidents occurring with students.Ñ

2 5 . The School Board alleged in paragraph 19 of its Amended

Notic e of Specific Charges that: ÐOn September 17, 2013

Respondent informed Mr. Gibbs that she had scratched Ò L.G.Ó, her

student.Ñ The School Board failed to prove that Respondent

scratched a student under her supervision as alleged in

paragraph 19 of the Am ended Notice of Specific Charges. No

evidence was adduced at hearing in support of the School BoardÓs

allegations in paragraph 19 of the Amended Notice of Specific

Charges. Moreover, the School Board faile d to address this issue

in its Proposed Recommend ed O rder.

2 6 . The School Board alleged in paragraph 20 of its Amended

Notice of Specific Charges that: Ð On September 18, 2013, a

parent reported that her child had been stabbed . . . three times

with a pencil by another student. Respondent failed to render

first aid and failed to notify the other studentÓs parents.Ñ

2 7 . The School Board failed to prove that a student was

stabbed with a pencil by another student while under RespondentÓs

supervision as alleged in paragraph 20 of the Amended Notice o f

Specific Charges. Again, the parentÓs report is hearsay. No

students, parents, or witnesses to the alleged incident testified

at the hearing .

2 8 . In an effort to demonstrate that Respondent is guilty

of the allegations, however, the School Board arg ues in its

Proposed Recommended O rder that : Ð[w]hen Respondent was asked

about the incident, she indicated that she was on the other side

of the room when it happened.Ñ

29 . The School BoardÓs position, however, contradicts

Principal GibbsÓs testimony a t the hearing when he was asked :

Q. Did you speak to Ms. Parris about this

incident?

A. Yes, I did.

Q. And what did she say to you?

A. She doesnÓt recollect the child being

poked by another child in the wrist with the

pencil. She just had no me mory.

Transcript , pages 53 - 54.

3 0 . Nevertheless, on September 19, 2013, Principal Gibbs

issued to Respondent a Professional Responsibilities memorandum

regarding the alleged incident, requiring her to Ð[e]nsure the

safety and well - being of stude nts at all timesÑ; Ð[m]aintain

close supervision of students at all timesÑ; Ð[r]eport

immediately to administration any accidents or incidents

involving student welfareÑ; and Ð[n]otify parents in regards to

any accident or incidents occurring with students .Ñ

3 1 . The School Board alleged in paragraph 21 of the

Amended Notice of Specific Charges that: ÐBased on the witness

statements, the following was gathered during the investigation:

i. On September 24, 2013, under RespondentÓs supervision, or

lack th ereof, four students were injured. [ On e] student, ÒA.J.Ó

was taken to the hospital by her mother hospital [sic] because of

a facial contusion.Ñ

32. The School Board failed to prove that any students were

injured while under RespondentÓs supervision as al leged in

paragraph 21 of the Amended Notice of Specific Charges. Any

witness statements are hearsay. No students, parents, or

witnesses to the incident testified at the hearing .

33. T he School Board argues in its Proposed Recommended

O rder that on Sep tember 25, 2013, a third incident occurred in

RespondentÓs classroom. Specifically, the School Board contends:

ÐA parent approached administration concerned about the safety of

her child. . . . The student had been kicked in the face causing

her face to swell.Ñ

3 4 . Notably, this alleged incident is not referred to in

the Ame nded Notice of Specific Charges . The notice was ,

therefore , insufficient to inform Respondent of the School

BoardÓs contention.

3 5 . Even if Respondent was on notice of the allegations,

however, the School Board failed to prove that a student was

kicked in the face while under RespondentÓs supervision. The

parentÓs report is hearsay. No students, parents, or witnesses

to the incident testified at th e hearing. Respo ndent de nied the

allegations.

3 6 . Notably, Principal Gibbs testified that when asked

about the incident, Respondent Ðsaid that she doesnÓt recall a

child being kicked in the face, but allegedly she was pushed by

another child in the class, but she doesnÓt recal l the child

being kicked in the face.Ñ The undersigned finds that Principal

GibbsÓs testimony is not credible and is unpersuasive. Th e

purported statement contradicts what Principal Gibbs wrote in the

September 26, 2013, Professional Responsibilities mem orandum. At

that time, Principal Gibbs wrote that when Respondent was Ðasked

what happened. [ She ] stated I have nothing to say.Ñ

3 7 . Nevertheless, on September 26, 2013, Principal Gibbs

issued to Respondent a Professional Responsibilities memorandum

regarding the alleged incident, requiring her to Ð[e]nsure the

safety and well - being of students at all timesÑ; Ð[m]aintain

close supervision of students at all timesÑ; Ð[r]eport

immediately to administration any accidents or incidents

involving student w elfareÑ; and Ð[n]otify parents in regards to

any accident or incidents occurring with students.Ñ

3 8 . On September 25, 2013, Principal Gibbs met with

Respondent in his office to discuss her classroom supervision.

The meeting was held behind Principal Gibb sÓs closed door.

During the meeting, Respondent felt as if Principal Gibbs was

speaking to her in an arrogant manner. Respondent became upset

at Principal Gibbs, spoke to him in a loud manner, and , at one

point , hit his desk with one of her hands and sta ted: ÐNo, IÓm

not going to allow you to speak to me like that, because IÓm 61

years old and IÓm old enough to be your mother.Ñ At no time

during the meeting did Respondent threaten or intimidate

Principal Gibbs in any way.

3 9 . Approximately one wee k later, Principal Gibbs and

Respondent met in his office to discuss some student discipline

referrals. During this meeting, Respondent became upset at

Principal Gibbs and spoke to him in a loud manner. At no time

during this meeting did Respondent threa ten or intimidate

Principal Gibbs in any way. 8 /

40 . In sum, t he evidence at hearing failed to show that

RespondentÓs loud voice and conduct in her meetings and

conversations with Principal Gibbs constitute misconduct in

office , gross insubordination, i ncompetency due to inefficiency,

or a violation of applicable School Board policies. Although

Respondent may have used a loud voice during the meetings and

conversations , and staff members may have overheard RespondentÓs

loud voice, given the context in w hich these meetings and

conversations occurred (the y were meetings and conversations

be tween a principal and teacher - - not a classroom situation

involving students) , the School Board failed to establish that

Respondent engaged in conduct which rose to the l evel of

misconduct in office, gross insubordination, incompetency due to

inefficiency, or a violation of applicable School Board policies.

41 . As to the alleged incident on March 14, 2013, the

evidence at hearing failed to show that Respondent engaged in

conduct which rose to the level of misconduct in office, gross

insubordination, incompetency due to inefficiency, or a violation

of applicable School Board policies.

42. As to each of the alleged incidents in September 2013,

involving allegations of stude nts getting injured while under

RespondentÓs supervision, t he evidence at hearing failed to show

that students were injured while under RespondentÓs supervision.

Accordingly, the evidence at hearing failed to show that

Respondent is guilty of mis conduct i n office, gross

insubordination, incompetency due to inefficiency, or that she

violated applicable School Board policies with regard to these

alleged incidents .

4 3. The evidence at hearing failed to show that

RespondentÓs failure to have any lesson plans, grades for

students, or a Ðprint - richÑ classroom and outside bulletin board,

constitutes misconduct in office, gross insubordination,

incompetency due to inefficiency, or a violation of applic able

School Board policies .

44 . The evidence at hearin g failed to show that Respondent

did not have lesson plans available for a substitute teacher on

October 8 and 12, 2012. Thus, the evidence at hearing failed to

show that Respondent is guilty of misconduct in office, gross

insubordination, incompetency du e to inefficiency, or that she

violated applicable School Board policies with regard to these

allegations.

4 5 . The evidence at hearing failed to show that Respondent

Ð significantly arrived late Ñ to important faculty meetings. The

evidence presented at h earing merely showed that Respondent was

late to a pre - planning faculty meeting on her first day at Henry

Reeves on August 18, 2011, because she went to the wrong school.

The significance of this faculty meeting was not established at

the hearing. During the next school year, sh e was late to two

other meetings in November 2012 . It is unclear from the record

that these two other meetings in November 2012, were, in fact,

faculty meetings. Be that as it may, the fact that Respondent

was late to three meeti ngs from August 2011 to September 2013 - -

one of which was on the first day of school when she went to the

wrong school -- is insufficient to demonstrate that Respondent

engaged in conduct which constitutes misconduct in office, gross

insubordination, incompet ence due to inefficiency, or a violation

of applicable School Board policies.

4 6. The evidence at hearing failed to show that Respondent

was tardy and absent from work to the extent alleged in the

Amended Notice of Specific Charges. Even if sh e was tardy and

absent as alleged, however, the tardiness and absences do not

constitute misconduct in office, gross insubordination,

incompetence due to inefficiency, or a violation of applicable

School Board policies.

47 . The evidence at hearing failed to show that Respondent

engaged in any conduct alleged in the Amended Notice of Specific

Charges which constitutes misconduct in office, gross

insubordination, incompetency due to inefficiency, or a violation

of School Board policies.

CONCLUSIONS OF LAW

4 8 . DOAH has jurisdiction of the subject matter of and

the parties to this proceeding pursuant to sections 120.569

and 120.57(1), Florida Statutes (2013) .

4 9 . Respondent is an instructional employee, as that term

is defined in section 1012.01( 2), Florida Statutes (201 3 ) .

Petitioner has the authority to suspend instructional employees

pursuant to sections 1012.22(1)(f), 1 012.33( 4 )( c ), and

1012.33(6)(a) .

50 . To do so, the School Board must prove, by a

preponderance of the evidence, that Respo ndent committed the

violations alleged in the Amended Notice of Specific Charges and

that such violations constitute Ðjust causeÑ for suspension .

§ § 1012.33(1)(a) and (6), Fla. Stat.; Mitchell v. Sch. Bd. , 972

So. 2d 900, 901 (Fla. 3d DCA 2007); Gabriele v. Sch. Bd. of

Manatee Cnty . , 114 So. 3d 477, 480 (Fla. 2d DCA 2013).

51 . The preponderance of the evidence standard requires

proof by Ðthe greater weight of the evidenceÑ or evidence that

Ðmore likely than notÑ tends to prove a certain proposition.

Gros s v. Lyons , 763 So. 2d 276, 280, n. 1 (Fla. 2000). The

preponderance of the evidence standard is less stringent than the

standard of clear and convincing evidence applicable to loss of a

license or certification. Cisneros v. Sch. Bd. of Miami - Dade

Cnty. , 990 So. 2d 1179 (Fla. 3d DCA 2008).

52 . 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 , 667 So. 2d

387, 389 (Fla. 1st DCA 1995); McMillian v. Nassau Cnty. Sch. Bd. ,

629 So. 2d 226 , 228 (Fla. 1st DCA 1993 ).

53 . Section s 1012.33(1)(a) and (6) provide in pertinent

part that instructional staff may be suspended dur ing the

term of their employment c ontract only for Ðjust cause.Ñ ÐJust

causeÑ is defined in section 1012.33(1)(a) to include Ðmisconduct

in office , Ñ Ðincompetency,Ñ and Ðgross insubordination.Ñ

54 . Section 1001.02(1), Florida Statutes, grants the Stat e

Board of Education authority to adopt rules pursuant to

s ections 120.536(1) and 120.54 to implement provisions of law

conferring duties upon it.

5 5 . Consistent with this rulemaking authority, the State

Board of Education has defined Ðmisconduct in off iceÑ in Florida

Administrative Code R ule 6A - 5.056(2), effective July 8, 2012,

which provides:

( 2 ) ÐMisconduct in OfficeÑ means one or more

of the following:

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

Education Profession in Florida as adopted in

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

(b) A violation of the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B -

1.006, F.A.C.;

(c) A violation of the adopted school board

rules;

(d) Behavior that disrupts the stude ntÓs

learning environment; or

(e) Behavior that reduces the teacherÓs

ability or his or her colleaguesÓ ability to

effectively perform duties.

5 6 . RespondentÓs conduct alleged to constitute misconduct

in office that took place prior to July 8, 2 012, is governed by

the version of rule 6A - 5.056(3) in effect at that time. That

rule defines Ðmisconduct in officeÑ as:

(3) Misconduct in office is defined as a violation of

the Code of Ethics of the Education Profession as

adopted in [r]ule 6B - 1.001, F.A.C., and the Principles

of Professional Conduct for the Education Profession in

Florida as adopted in [r]ule 6B - 1.006, F.A.C., which is

so serious as to impair the individualÓs effectiveness

in the school system.

5 7 . Florida Administrative Code R ule 6B - 1.001, renumbered

without change effective January 11, 2013, as rule 6A - 10.080,

Ð Code of Ethics of the Education Profession in Florida,Ñ

provides:

( 1) The educator values the worth and

dignity of every person, the pursuit of

truth, devotion to exc ellence, acquisition of

knowledge, and the nurture of democratic

citizenship. Essential to the achievement of

these standards are the freedom to learn and

to teach and the guarantee of equal

opportunity for all .

(2) The educatorÓs primary professional

concern will always be for the student and

for the development of the studentÓs

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 o f maintaining

the respect and confidence of oneÓs

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 .

5 8 . While rule 6A - 5.056(2)(a) provides that violation of

the Code of Ethics rule constitutes Ðmisconduct,Ñ it has been

frequently noted that the precepts set forth in the above - cited

ÐCode of EthicsÑ are Ðso general and so obviously aspirational as

to be of little practical use in defining nor mative behavior.Ñ

Walton C nty . Sch. Bd. v. Hurley , Case No. 14 - 0429 (Fla. DOAH

May 14, 2014 ) ; Miami - Dade C nty . Sch. Bd. v. Anderson , Ca se

No. 13 - 2414 (Fla. DOAH Jan. 14, 2014) .

5 9 . Rule 6A - 5.056(2)(b) incorporates by reference

rule 6B - 1.006, ren umbered without change effective Janua ry 11,

2013, as rule 6A - 10.081, Ð Pr inciples of Pr ofessional Conduct for

the Education Profession in Florida. Ñ Rule 6 A - 1 0.081 provides ,

in pertinent part:

(3) Obligation to the studen t requires that

the individual:

(a) Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the studentÓs mental

and/or physical health and/or safety.

60 . School Board Policy 3210, Standards of Ethical Conduct,

effective July 1, 2011, is a ÐruleÑ within the meaning of

rule 6A - 5.056(2)(c). School Board Policy 3210 provides, in

pertinent part:

All employees are representatives of the

District and shall conduct themselves, both

in their employment and in the community, in

a manner that will reflect credit upon

themselves and the school system.

A. An instructional staff member shall:

* * *

3. make a reasonable effort to protect the

student from conditions harmful to learning

and/or to the studentÓs mental and/or

physi cal health and/or safety ;

4. not unreasonably restrain a student from

independent action in pursuit of learning;

* * *

7. not intentionally expose a student to

unnecessary embarrassment or disparagement;

8. not intentionally violate or deny a

studentÓs legal rights;

* * *

17. maintain honesty in all professional

dealings;

* * *

21. not use abusive and/or profane language

or display unseemly conduct in the workplace;

61 . School Board Policy 3210.01, Code of Ethics, effective

July 1, 2011, is a ÐruleÑ within the meaning of rule 6A -

5.056(2)(c). School Board Policy 3210.01 provides, in pertinent

part:

Fundamental Principles

The fundamental principles upon which thi s

Code of Ethics is predicated are as follows:

* * *

D. Honesty Î - Dealing truthfully with people,

being sincere, not deceiving them nor

stealing from them, not cheating nor lying.

E. Integrity Î - Standing up for their beliefs

about what is right and what is wrong and

resisting social pressure to do wrong.

* * *

I. Responsibility Î - Thinking before acting

and being accountable for their actions,

paying attention to others and responding to

their needs. Responsibility emphasize s our

positive obligations to care for each other.

Ea ch employee agrees and pledges:

A. To abide by this Code of Ethics, making

the well - being of the students and the honest

performance of professional dutie s core

guiding principles.

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

codes and regulations.

C. To support the principles of due process

to protect the civil and h uman rights of all

individuals.

D. To treat all persons with respect and to

strive to be fair in all matters.

E. To take respon sibility and be accountable

for his/her actions.

F. To avoid conflicts of interest or any

appearance of impropriety.

G. To cooperate with others to protect and

advance the District and its students.

H. To be efficient and effective in the

perform ance of job duties.

Conduct Regarding Students

Each employee:

A. s hall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the studentÓs mental

and/or physical health and/or safety;

* * *

F . s hall not intentionally violate or deny a

studentÓs legal rights;

62 . Consistent with its rulemaking authority, the State

Board of Education has defined Ðgross insubordinationÑ in

rule 6A - 5.056 (4), effective July 8, 2012, which provides:

(4) ÐGross insubor dinationÑ means the

intentional refusal to obey a direct order,

reasonable in nature, and given by and with

proper authority; misfeasance, or malfeasance

as to involve failure in the performance of

the required duties.

63 . RespondentÓs conduct alle ged to constitute gross

insubordination that took place prior to July 8, 2012, is

governed by the version of rule 6A - 5.056(4) in effect at that

time. That rule defines Ðgross insubordinationÑ as:

(4) Gross insubordination or willful neglect

of duties i s defined as a constant or

continuing intentional refusal to obey a

direct order, reasonable in nature, and given

by and with proper authority.

64 . Consistent with its rulemaking authority, the State

Board of Education has defined ÐIncompetencyÑ in

rule 6A - 5.056(3), effective July 8, 2012, to mean Ðthe inability,

failure or lack of fitness to discharge the required duty as a

result of inefficiency or incapacity.Ñ Consistent with its

rulemaking authority, the State Board of Education has defined

ÐI nefficiencyÑ in rule 6A - 5.056(3)(a), effective July 8, 2012, to

mean:

1. Failure to perform duties prescribed by

law;

2. Failure to communicate appropriately and

relate to students;

3. Failure to communicate appropriately with

and relate to colleagu es, administrators,

subordinates, or parents;

4. Disorganization of his or her classroom

to such an extent that the health, safety or

welfare of the students is diminished; or

5. Excessive absences or tardiness.

6 5 . RespondentÓs condu ct alleg ed to constitute incompetency

due to i nefficiency that took place prior to July 8, 2012, is

governed by the version of rule 6A - 5.056(1)(a) in effect at that

time. Rule 6A - 5.056(1) states, in pertinent part:

(1) Incompetency is defined as inability or

la ck of fitness to discharge the required

duty as a result of inefficiency or

incapacity. Since incompetency is a relative

term, an authoritative decision in an

individual case may be made on the basis of

testimony by members of a panel of expert

witnesses appropriately appointed from the

teaching profession by the Commissioner of

Education. Such judgment shall be based on a

preponderance of evidence showing the

existence of one (1) or more of the

following:

(a) Inefficiency: (1) repeated failure to

p erform duties prescribed by law (Section

231.09, F.S.); (2) repeated failure on the

part of a teacher to communicate with and

relate to children in the classroom, to such

an extent that pupils are deprived of minimum

educational experience; . . .

6 6 . Tu rning to the present case, the School Board failed to

prove by a preponderance of the evidence that RespondentÓs loud

voice and conduct in her meetings and conversations with

Principal Gibbs constitute misconduct in office, gross

insubordination, incompete ncy due to inefficiency, or a violation

of applicable School Board policies. Although Respondent may

have used a loud voice during the meetings and conversations, and

staff members may have overheard RespondentÓs loud voice, given

the context in which the se meetings and conversations occurred

(they were meetings and conversations be tween a principal and

teacher - - not a classroom situation involving students) , the

School Board failed to establish that Respondent engaged in

conduct which rose to the level of misconduct in office, gross

insubordination, incompetency due to inefficiency, or a violation

of School Board policies.

6 7. The School Board failed to prove by a preponderance of

evidence that, with regard to the alleged incident on March 14,

2013, Respon dent engaged in conduct which rose to the level of

misconduct in office, gross insubordination, incompetency due to

inefficiency, or a violation of applicable School Board policies.

68 . T he School Board failed to prove by a preponderance of

the evide nce that, with regard to each of the alle ged incidents

in September 2013 involving allegations of students getting

injured while under RespondentÓs supervision, students were, in

fact, injured while under RespondentÓs supervision. Accordingly,

the School Board failed to prove that Respondent committed

misconduct in office , gross insubordination, incompetency due to

inefficiency, or that she violated applicable School Board

policies with regard to these alleged incidents.

6 9 . The School Bo ard failed to prove by a preponderance of

the evidence that RespondentÓs failure to have any lesson plans,

grades for students, or a Ðprint - richÑ classroom and outside

bulletin board constitutes misconduct in office, gross

insubordination, incompetency due to inefficiency, or a violation

of applicable School Board policies.

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

the evidence that Respondent did not have lesson plans available

for a substitute teacher on October 8 and 12, 2012. Thu s, the

evidence at hearing failed to show that Respondent is guilty of

misconduct in office, gross insubordination, incompetency due to

inefficiency, or that she violated applicable School Board

policies with regard to these allegations.

71 . The Sch ool Board failed to prove by a preponderance of

the evidence that Respondent Ð significantly arrived late Ñ to

important faculty meetings. That Respondent was late to a

faculty meeting on her first day at Henry Reeves on August 18,

2011, because she reporte d earlier that day to another school,

and she was late to two other meetings in November 2012, is

insufficient to demonstrate that Respondent engaged in conduct

which constitutes misconduct in office, gross insubordination,

incompetence due to inefficiency , or a violation of applicable

School Board policies.

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

the evidence that Respondent was tardy and absent from work to

the exte nt alleged in the Amended Notice of Specific Charges.

Even if s he was tardy and absent as alleged, however, the

tardiness and absences do not constitute misconduct in office,

gross insubordination, incompetence due to inefficiency, or a

violation of applicable School Board policies.

73 . The School Board failed t o prove by a preponderance of

the evidence that Respondent engaged in any conduct rising to the

level of gross insubordination. Because the School Board failed

to prove that Respondent is guilty of any of the conduct alleged

during the 2013 - 2014 school ye ar, she is not guilty of Ðgross

insubordinationÑ for allegedly violating any directives that

school year or prior to the 2013 - 2014 school year. Moreover, the

written directives are general in nature, directing Respondent to

comply with all or various rule s and policies. The single

reprimand and multiple Professional Responsibilities memorandums

(chara cterized by Prinicpal Gibbs as Ðfriendly reminder [ s ] Ñ), and

CFRÓs are not tantamount to a direct order, reasonable in nature,

and given with proper authority . To hold otherwise would permit

a p rincipal to direct all teachers to follow all rules and

policies, and upon a violation of any rule or policy, conclude

that the teacher was grossly insubordinate.

74 . The undersigned has carefully considered eac h of the

School BoardÓs contentions in its Amended Notice of Specific

Charges and Proposed Recommended O rder , and they are all

rejected . In sum, the School Board failed to prove that

Respondent engaged in any conduct alleged in the Amended Notice

of Speci fic Charges which constitutes misconduct in office, gross

insubordination, incompetency due to inefficiency, or a violation

of School Board policies. 9 /

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

enter a final order rescinding the 30 - day suspension with back

pay .

DONE AND ENTERED this 26th day of August , 2014 , in

Tallahassee, Leon County, Florida.

S

DARREN A. SCHWARTZ

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 2 6th day of August , 2014 .

ENDNOTES

1/ The School Board failed to prove at hearing that a

P rofessio n al Duty and Responsibilities memorandum i s a form of

teacher disciplinary action . Neither the CBA n or ap plicable

statutes, rules, and policies address the issue . Notably,

P rincipal Gibbs testified on direct examination that a

P rofessional Duty and Responsibilities memorandum is a Ðfriendly

reminderÑ designed to correct teacher behavior. O n cross -

examinatio n, however, Principal Gibbs was vague , inconsistent,

and testified as follows :

Q: Is that discipline in the discipline

system in existence?

A: Well, it depends, because I had already

spoken to her in regards to the fact that

this is where you need to report, but she was

very adamant of not coming to Reeves for

whatever reason.

Q: I guess it was a broader question.

A: Okay.

Q: Do you understand a professional

responsibilities memorandum to be a

disciplinary action against the teacher?

A: I tÓs progressive discipline, yes.

Transcript , p. 63.

2/ ÐPrint - richÑ requires that classroom rules, benchmarks, and

objectives be posted on the classroom walls. All teachers are

expected to have print - rich classrooms. To assist in this

effort, teac hers are given a voucher to purchase necessary

materials and supplies.

3 / The CBA address es a ÐCFR.Ñ A review of Section 1 of the CBA

indicates that a CFR is not a form of discipline. According to

the CBA, a CFR Ðmay lead to disciplinary action or re primand.Ñ

Th us, the undersigned rejects the School BoardÓs contention that

a CFR is a form of disciplinary action against Respondent .

4/ A reprimand is a form of di sciplinary action against

Respondent. At the hearing, counsel for the School Board

acknowledged that the School Board is not seeking to prove that

Respondent, in fact, struck a student with a ruler because she is

not being suspended for that reason. Transcript , p. 32. Rather,

the School BoardÓs allegations regarding Respondent allegedl y

striking a student with a ruler relate to the issue of

progressive discipline.

5/ Even if Respondent was tardy and absent as indicated in the

Absences and Tardies Directives, RespondentÓs conduct does not

constitute misconduct in office, gross insubo rdination,

incompetency due to inefficiency, or a violation of School Board

policies. At best, the directives indicate Respondent was absent

due to sickness on seven days from August 2012 to January 15,

2013. However, as of January 14, 201 3, she still ha d 32 hours of

sick time available. She was also absent due to personal leave

for 2.5 days. However, as of January 14, 2013, she still had 3.5

hours of personal tim e available. She was tardy for work a total

of 2.5 hours.

6 / The Amended Notice of Spe cific Charges alleged ÐRespondent

grabbed a student by the wrist in the presence of her

supervisor.Ñ

7 / T he Amended Notice of Specific Charges makes no reference to a

pencil. In paragraph 22.a. of its Proposed Recommended O rder,

however, the School Boa rd contends that Ð[o]n September 13, 2013

a student in RespondentÓs class was poked under the eye with a

pencil , and Respondent was completely unaware the incident had

even occurred.Ñ For the purposes of this Recommended Order, the

undersignedÓs findings are based on the School BoardÓs contention

that a student was poked under the eye with a pencil while under

RespondentÓs supervision.

8 / Principal Gibbs is of large stature, Respondent is not. Based

on the undersignedÓs observation of Respondent and P rincipal

Gibbs at the hearing and the evidence presented at hearing,

Principal GibbsÓs testimony that he was intimidated by

RespondentÓs loud voice during these meetings is rejected as

unpersuasiv e and not credi ble.

9 / Although not raised as an issue by Respondent, the School

BoardÓs Amended Notice of Specific Charges and Proposed

Recommended Order fail to set forth precisely what allege d

conduct applies to each count:

P aragraph 32 in Count I - - Misconduct In Office: ÐRespondentÓs

conduct, as describ ed herein, constitutes misconduct in

office . . . . Ñ;

P aragraph 38 in Count II Î - Gross Insubordination: ÐAccordingly,

RespondentÓs conduct, as described herein, constitutes gross

insubordination . . . Ñ;

P aragraph 40 in Count III - - Incompetency Due to Inefficiency : The

School Board refers to various definitions of in competency, but

then goes on to allege:

P aragraph 41 in Count III - - Respondent Ðfailed to perform her

duties by failing to communicate appropriately with and relate to

colleagues and admi nistration by becoming irate in conversations

with her superiors.Ñ

Paragraph 42 in Count III -- The School Board then alleges ÐFor the

foregoing reasons, RespondentÓs conduct, as described herein,

constitutes incompetency . . . . Ñ

Paragraph 45 in C ount I V Î - Violation of School Board Policy 3210:

ÐRespondentÓs failure to supervise her students and striking her

student violated the Standards of Ethical conduct and constitute

just cause to suspend Respondent for thirty (30) workdays.Ñ

Paragraph 48 in Count V Î - Violation of School Board Policy

3210.01: ÐRespondentÓs conduct, as described herein, violated

School Board Policy 3210.01 . . . . Ñ

These concerns were exacerbated by a review of the School BoardÓs

Proposed Recommended O rder .

In its Proposed Recomm ended O rder, the School Board limit s its

arguments as to the charge of misconduct in office by stating in

paragraph 39 that: ÐRespondentÓs engaged in behavior which

disrupted the studentÓs learning environment when she: 1) yelled

so loud in her meetings with her supervisors, that other staff

members could hear her outside; 2) failed to communicate with

parents and informed them that their children had been injured in

the classroom; 3) failed to have lesson plans available for

substitutes; 4) significantly arrived late to important faculty

meetings.Ñ

However, the School Board went on to argue, with respect to the

other counts:

P aragraph 50: ÐRespondentÓs conduct, as described herein,

constitutes gross insubordination . . . .Ñ ;

P aragraph 53: ÐResponde ntÓs disrespectful conduct illustrates

her complete failure to appropriately communicate with colleagues

and administration .Ñ ;

P aragraph 54: ÐFor the foregoing reasons, the RespondentÓs

conduct, as described herein, constitutes incompetency . . . . Ñ;

P aragraphs 58 - 62.

COPIES FURNISHED:

Alberto M. Carvalho, Superintendent

Miami - Dade County School Board

Suite 912

1450 Northeast Second Avenue

Miami, Florida 33132

Pam Stewart , Commissioner

Department of Education

Turlington Building, Suite 1514

325 W est Gaines Street

Tallahassee, Florida 32399 - 0400

Lois S. Tepper , Interim General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Sara Marken, Esquire

Miami - Dade County School Board

Suite 430

1450 Northeast Second Avenue

Miami, Florida 33132

Mark Herdman, Esquire

Herdman and Sakellarides, P.A.

Suite 110

29605 U.S. Highway 19 , North

Clearwater, Florida 33761

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.