14-002149TTS Miami-Dade County School Board vs. Krishna Chandra-Das Status: Closed Recommended Order on Monday, November 17, 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, or a violation of School Board policies.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 14 - 2149TTS

KRISHNA CHANDRA - DAS,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case came before Adm inistrative Law Judge Darren A.

Schwartz for final hearing by video teleconference on August 27,

2014, with sites in Miami and Tallahassee, Florida.

APPEARANCES

For Petitioner: Cristina Rivera Correa, Esquire

Miami - Dade Count y School Board

Suite 430

1450 Northeast Second Avenue

Miami, Florida 33132

For Respondent: Mark Herdman, Esquire

Herdman and Sakellarides, P.A.

Suite 110

29605 U.S. Highway 19, North

Post Office Box 4940

Clearwater, Florida 33761

STATEMENT OF THE ISSUE

Whether just cause exists for Petitioner to suspend

Respondent for 15 day s without pay.

PRELIMINARY STATEMENT

On May 7, 2014, at its scheduled meeting, Petitioner,

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

suspend Respondent, Krishna Chandra - Das (ÐRespondentÑ), for 15

work days without pay. Respondent was advised of his right to

request an administrative hearing within 15 days.

On May 8, 2014, Respondent timely requested an

administrative hearing. Subsequently, the School Board referred

the matter to the Division of Administrative Hearings (ÐDOAHÑ)

to assign an Administrative Law Judge to conduct the final

hearing.

At the request of the parties, the final hearing initially

was set for July 23, 2014. On June 24, 2014, Respondent filed

an unopposed motion to continue the final hearing. On June 25,

201 4, the undersigned entered an Order resetting the final

hearing for August 27, 2014.

On June 25, 2014, the undersigned entered an Order

requiring the School Board to file its notice of specific

charges by July 7, 2014. On July 7, 2014, the School Board

filed its Notice of Specific Charges. The 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) Misconduct in

Office; (2) Violation of School Board Policy 3210, ÐStandards of

Ethical ConductÑ; (3) Violation of School Board Policy 3210.01,

ÐCode of EthicsÑ; (4) Violation of School Board Policy 3213,

ÐStudent Supervision and WelfareÑ; and (5) Gross

Insubordination. 1/

The final hearing commenced as scheduled on August 27,

2014, with both parties present. At the hearing, the School

Board presented the testimony of John Lux , Vivian Taylor , and

Ann - Marie DuBoulay . The School BoardÓs Exhibits 1 through 1 7 ,

and 19 were receiv ed into evidence. Respondent testified on his

own behalf , and did not offer any exhibits into evidence.

The final hearing Transcript was filed on October 20, 2014.

The parties timely filed proposed recommended order s , which were

given consideration in t he preparation of this Recommended

Order.

Unless otherwise indicated, all rule and statutory

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

alleged violations.

FINDING S OF FACT

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

cha rged with the duty to operate, control, and supervise the

public schools within Miami - Dade County, Florida.

2. At all times material to this case, Respondent was

employed as a social studies teacher at Palmetto Middle School

(ÐPalmettoÑ), a public school in Miami - Dade County, Florida.

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 . The incident giving rise to this proceeding occurred on

March 18, 2014, during the 2013 - 2014 school year.

5 . On March 18, 2014, Respondent was co - teaching a seventh

grade social studies class with Vivian Taylor . Ms . Taylor is

another social studies teacher at Palmetto. K.W. was a female

student in the class . At that time, K.W. was approximately five

feet tall and weigh ed ninety pounds .

6 . Prior to March 18, 2014, K.W. sat in an assigned seat

in the back of the classroom of the social studies class co -

taught by Respondent and Ms. Taylor. On March 17, 2014, K.W.

displayed disruptive behavior in the classroom.

7 . On March 18, 2014, as the bell rang to signal that

class was about to begin, K.W. and other studen ts entered

RespondentÓs and Ms. TaylorÓs classroom.

8 . When K.W. entered the classroom on March 18, 2014 ,

Respondent i nstructed K.W. that she could not sit at her seat in

the back of the classroom, and that she needed to sit at a desk

in the front of th e classroom. Instead of walking toward her

newly assigned seat in the front of the classroom, K.W.

disregarded RespondentÓs instructions and attempted to walk in

the opposite direction to ward her prior assigned seat in the

back of the classroom.

9 . R es pondent then stood in the aisle , stepped in front of

K.W., and ÐblockedÑ her Ð path Ñ toward the seat in the back of

the classroom . Respondent blocked K.W.Ós path in an attempt to

re - direct her to her newly assigned seat in the front of the

classroom .

1 0 . In his effort to block K.W.Ós path of travel and

re - direct her to her newly assigned seat in the front of the

classroom, Respondent and K.W. made very slight physical contact

with each other . The physical contact between Respondent and

K.W. was mi nor, inadvertent , and lasted no more than one second.

1 1 . At hearing, Respondent denied that he ever made

physical contact with K.W. Ms. Taylor , the only other purported

eye - witness to the incident , who testified at the hearing on

behalf of the School Board, was asked by the School BoardÓs

counsel to describe whether Respondent and K.W. ever made

physical contact . In response , Ms. Taylor testified:

It was just their chest, just the top body,

because Mr. Chandra - Das is a bit taller than

her , so when he stepped up, thatÓs what

touched .

1 2 . Ms. Taylor described the physical contact between

Respondent and K.W. as very slight -- Ð it was just a touch,Ñ it

lasted Ð[a] second , half a second.Ñ

1 3 . After Respondent blocked K.W.Ós path, K.W. stepped

back and put her head down. Ms. Taylor testified that K.W. was

visibly upset and crying . Ms. Taylor immediately told K.W. to

leave the room and go directly to the assistant p rincipalÓs

office.

1 4 . RespondentÓs supervisor, Principal Lux, acknowledged

at the final hearing that there is no written directive or

School Board policy which forbids a teacher from blocking the

path of a student. Principal Lux further testified that he has

never Ðdisciplined a teacher in the past for blocking the path

of students and not lett ing the student go wherever they want,Ñ

and that he is unaware of any circumstance in his 15 years with

the School Board in which the School Board has disciplined an

employee for blocking the path of a student.

1 5 . The persuasive and credible ev idence adduced at

hearing demonstrates that the re was, at most, very slight

physical contact between K.W. and Respondent as Respondent

a ttempted to block K.W.Ós path of travel and re - direct her to

her newly assigned seat in the front of the classroom .

Res pondent did not intend to make physical contact with K.W.,

and the physical contact between Respondent and K.W. was minor ,

inadvertent , and lasted no more than one second.

1 6 . The evidence does not establish that Respondent

pressed his body agai nst K.W. , as alleged in the Notice of

Specific Charges. 2/

1 7 . At no time did Respondent grab, push, shove, punch or

place his hands on K.W. in any way.

18. Respondent was justified and acted in an appropriate

manner in blocking K.W.Ós pat h in the manner that he did , which

was in an effort to re - direct K.W. to her newly assigned seat.

1 9 . On March 20, 2014, Respondent was advised of an

investigation with regard to the March 18, 2014, incident

involving K.W. On that date, Responden t was specifically

advised by his supervisor, Principal Lux, in a letter:

You are prohibited from contacting any

complainant(s) and/or witness(es), with the

intent to interfere with the investigation

of the above listed allegation(s).

20 . Subsequent to RespondentÓs receipt of this directive,

Respondent contacted Ms. Taylor and advised her that he was the

subject of an investigation regarding the March 18, 2014,

incident involving K.W. Respondent showed Ms. Taylor the

letter, but he did not attempt to in fluence her in any way.

Respondent did not violate the directive of Princi p al Lux ,

because Respondent did not contact Ms. Taylor Ðwith the intent

to interfere with the investigation.Ñ

21 . In sum, the evidence at hearing failed to show that

Respond entÓs conduct with regard to the incident in the

classroom on March 18, 2014, involving K.W. constitutes

misconduct in office , gross insubordination, or a violation of

School Board policies.

22 . In sum, the evidence at hearing failed to show that

Respon dent violated Principal LuxÓs directive not to contact any

witnesses Ðwith the intent to interfere with the investigation.Ñ

Accordingly, the School Board failed to prove that Respondent Ós

communications with Ms. Taylor constitutes gross

insubordination.

CONCLUSIONS OF LAW

23 . 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.

24 . Respondent is an instructional employee, as that term

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

School Board has the authority to suspend instructional

employees pursuant to sections 1012.22(1)(f), 1012.33( 4 )( c ), and

1012.33(6)(a).

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

preponderance of the eviden ce, that Respondent committed the

violations alleged in the Notice of Specific Charges , and that

such violations constitute Ðjust causeÑ for suspension .

§ 1 012.33(1)(a) and (6), Fla. Stat.; Mitchell v. Sch. Bd. , 972

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

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

26 . 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 .

Gross 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 C nty. , 990 So. 2d 1179 (Fla. 3d DCA 2008).

27 . 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, 15 3 (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).

28 . Sections 1012.33(1)(a) and (6) provide in pertinent

part that instructional staff may be suspend ed during the term

of their employment contract only for Ðjust cause.Ñ

£ 1012.33(1)(a) and (6), Fla. Stat. ÐJust causeÑ is defined in

section 1012.33(1)(a) to include Ðmisconduct in officeÑ and

Ðgross insubordination.Ñ

2 9 . Section 1001.02(1), Florid a Statutes, grants the State

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.

30 . Consistent with this rulemaking authority, the State

Board of Education has defined Ðmisconduct in officeÑ in

rule 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 R ule 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 student Ós

learning environment; or

(e) Behavior that reduces the teacherÓs

ability or his or her colleaguesÓ ability to

effectively perform duties.

31 . Rule 6B - 1.001, re - numbered without change effective

January 11, 2013, as rule 6 A - 10.080 , ÐCode of Et hics 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 excellence, acquisition

of knowledge, and the nurture of democratic

citizenship. Essential to the ac hievement

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 e ducator 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 oneÓs

colleagues, of students, of parents, and of

othe r members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

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

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

frequently noted th at 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 normative

behavior.Ñ Walton Cnty. Sch. Bd. v. Hurley , Case No. 14 - 0429

(Fla. DOAH May 14, 2014 ) ; Miami - Dade Cnty. Sch. Bd. v. Anderson ,

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

33 . Rule 6A - 5.056(2)(b) incorporates by reference rule 6B -

1.006, renumbered without change effective January 11, 2013, as

rule 6 A - 10.081 , ÐPrinciples of Professional Cond uct for the

Education Profession in Florida . Ñ Rule 6A - 10.081 provides, in

pertinent part:

(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 t o the studentÓs mental

and/or physical health and/or safety.

* * *

(e) Shall not i ntentionally expose a

student to unnecessary embarrassment or

disparagement

34 . School Board Policy 3210, Standards of Ethical

Conduct, effective July 1, 20 11, 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 th at will reflect credit upon

themselves and the school system.

A. An instructional staff member shall:

* * *

7. not intentionally expose a student to

unnecessary embarrassment or disparagement;

* * *

21. not use abus ive and/or profane language

or display unseemly conduct in the

workplace;

35 . 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 mirrors the Code of

Ethics found in rule 6 A - 10.080. School Board Policy 3210.01

provides, in pertinent part:

A. The educator values the worth and

dignity of every person, the pursuit of

truth, devotion to excellence, acquisition

of knowledge, and the nurture of democra tic

citizenship. Essential to the achievement

of these standards are the freedom to learn

and to teach and the guarantee of equal

opportunity for all.

B. The educatorÓs primary professional

concern will always be for the student and

for the developmen t of the studentÓs

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and integrity.

C. Aware of the importance of maintaining

the respect and confidence of oneÓs

colleagues, o f students, of parents, and of

other members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

Fundamental Principles

The fundamental principles upon which this

Code of Ethics is predicated are as follows:

* * *

A. Citizenship - Î Helping to create a society

based upon democratic values (e.g., rules of

law, equality of opportunity, due process,

reasoned argument, representative

government, checks and balances, rights and

responsibili ties, and democratic decision -

making).

B. Cooperation Î - Working together toward

goals as basic as human survival in an

increasingly interdependent world.

C. Fairness - Î Treating people impartially,

not playing favorites, being open - minded,

and maintaini ng an objective attitude toward

those whose actions and ideas are different

from our own.

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 thei r beliefs

about what is right and what is wrong and

resisting social pressure to do wrong.

F. Kindness - - Being sympathetic, helpful,

compassionate, benevolent, agreeable, and

gentle toward people and other living

things.

G. Pursuit of Excellence Î - Doin g their best

with their talents, striving toward a goal,

and not giving up.

H. Respect -- Showing regard for the worth

and dignity of someone or something, being

courteous and polite, and judging all people

on their merits. It takes three (3) major

forms : respect for oneself, respect for

other people, and respect for all forms of

life and the environment.

I. Responsibility Î - Thinking before acting

and being accountable for their actions,

paying attention to others and responding to

their needs. Respon sibility emphasizes our

positive obligations to care for each other.

Each 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 duties

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 human rights of all

individuals.

D. To treat all persons with respect and to

strive to be fair in all matters.

E. To take responsibility 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 effect ive in the

performance of job duties.

Conduct Regarding Students

Each employee:

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;

* * *

E . shall not intentionally expose a student

to unnecessary embarrassment or

disparagement ;

36 . School Board Policy 321 3 , ÐStudent Supervision and

Welfare,Ñ effective July 1, 2011, is a ÐruleÑ within the meaning

of rule 6A - 5.056(2)(c). School Board Policy 321 3 provides, in

pertinent part:

Protecting the physical and emotional well -

being of students is of paramount

importance. Each instructional staff member

shall maintain the highest professional,

moral, and ethical standards in dealing with

the supervision, control, and protection of

students on or off school property.

37 . 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 provi des:

(4) ÐGross insubordinationÑ 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.

38 . Turning to the present case, the School Board failed

to prove by a preponderance of the evidence that Respondent Ós

conduct on May 1 8 , 2014 , involving K.W., constitut es misconduct

in office , gross insubordination, o r a violation of School Board

policies . Respondent merely blocked K.W.Ós path in the aisle

when she failed to follow his directive and sit in her newly

assigned seat in the front of the classroom. In his effort to

block K.W.Ós path of travel and redirect her to her newly

assigned seat, Responde nt and K.W. made very slight physical

contact with each other. The physical contact was minor,

inadvertent, and lasted no more than one second. To hold that

RespondentÓs conduct in this instance constitutes misconduct in

office, gross insubordination, or a violation of School Board

policies would have a chilling effect on a teacherÓs authority

to control and redirect defiant student behavior in the

classroom.

39. The School Board also failed to prove by a

preponderance of the evidence that Respondent was grossly

insubordinate based on his communications with Ms. Taylor

subsequent to March 18, 2014. Respondent did not contact

Ms. Taylor Ðwith the intent to interfere with the

investigation,Ñ and therefore, he did not violate Principal

LuxÓs directive of March 20, 2014. 3/

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 15 - day suspension of

Respondent with back pay.

D ONE AND ENTERED this 17th day of November , 2014 , in

Tallahassee, Leon County, Florida.

S

DARREN A. SCHWARTZ

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahass ee, 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 17th day of November , 2014 .

ENDNOTE S

1/ A typographical error appears in the Notice of Specific

Charges, numbering ÐGross InsubordinationÑ as Count IV, when in

fact, it is Count V.

2/ K.W. did not testify at the final hearing. However, K.W.Ós

two - page handwritten statement , which is hearsay, was received

into evidence at the final hearing.

A lth ough hearsay is admissible in administrative proceedings,

th is does not necessarily mean that the undersigned must use the

hearsay in resolving a factual dispute . The s tatement cannot be

used as the sole basis to support a finding of fact because it

does not fall within an exception to the hearsay rule and it

does not supplement or explain other non - hearsay evidence. See

Fla. Stat. § 120.57(1)(c) (2014) (ÐHearsay evidence may be used

for the purpose of supplementing or explaining other evidence,

but it sh all not be sufficient in itself to support a finding

unless it would be admissible over objection in civil

actions.Ñ) .

Even if the statement could be used by the undersigned, however,

it would not be given any weight based on the live testimony

presented at the final hearing . Unlike K.W., who did not

testify, t he undersigned had an opportunity to judge the

demeanor of the live witnesses who testified. Unlike K.W., t he

live witnesses at the final hearing were subject to cross -

examination. The testimony o f the live witnesses at hearing is

inherently more trustworthy , more persuasive , and credi ted over

the hand - written two - page hearsay statement of K.W., who did not

testify.

3/ The School Board argues that Respondent was given various

directives between May 2013 and February 2014. Because the

undersigned has found that Respondent was not grossly

insubordinate with regard to the March 18, 2014, incident

involving K.W., and the March 20, 2014, directive of Principal

Lux, there is no need to address any di rectives given to

Respondent prior to March 18, 2014.

COPIES FURNISHED:

Mark Herdman, Esquire

Herdman and Sakellarides, P.A.

Suite 110

29605 U.S. Highway 19, North

Post Office Box 4940

Clearwater, Florida 33761

(eServed)

Cristina Rivera Correa, Esquire

Miami - Dade County School Board

Suite 430

1450 Northeast Second Avenue

Miami, Florida 33132

(eServed)

Lois S Tepper , Interim General Counsel

Depa rtment Of Education

S ui te 1244

Turlington B ui ld in g

325 W est Gaines St reet

Tallahassee , Fl orida 32399

(eServed)

Pam Stewart , Commissioner

Depa rtment Of Education

S ui te 1514

Turlington B ui ld in g

325 W est Gaines St reet

Tallahassee, Florida 32399

(eServed)

Alberto M. Carvalho, Superintendent

Miami - Dade County School Board

Suite 912

1450 Northeast Second Av enue

Miami, Florida 33132

(eServed)

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.