14-003509TTS Broward County School Board vs. Datty Mckenzie Status: Closed Recommended Order on Thursday, January 8, 2015.

Summary: School Board proved by a preponderance of the evidence that just cause exists to suspend Respondent's employment as a teacher for misconduct and incompetency.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 14 - 3509TTS

DATTY MCKENZIE,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case came before Administrat ive Law Judge Darren A.

Schwartz for final hearing by video teleconference on October 20,

2014, with sites in Lauderdale Lakes and Tallahassee, Florida.

APPEARANCES

For Petitioner: Tria Lawton - Russell, Esquire

The School Board of Browar d County

600 Southeast Third Avenue , 14 th Floor

Fort Lauderdale, Florida 33301

For Respondent: Robert F. McKee, Esquire

Robert F. McKee, P.A.

1718 East Seventh Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33605

STATEMENT OF THE ISSUE

Whether just cause exists for Petitioner to suspend

Respondent for 10 days without pay.

PRELIMINARY STATEMENT

On July 22, 2014, at its scheduled meeting , Petitioner,

Broward County School Board (ÐSchool BoardÑ), took action to

suspend Respondent, Datty McKenzie (ÐRespondentÑ), for 10 days

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

administrative hearing within 15 days.

On July 22, 20 14, 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 p arties, the final hearing initially

was set for September 15, 2014. On September 2, 2014, the School

Board filed an unopposed motion to continue the final hearing.

On September 2, 2014, the undersigned entered an Order resetting

the final hearing for Oct ober 20, 2014.

The Administrative Complaint contains certain factual

allegations, and based on those factual allegations, the School

Board charged Respondent with the following violations in three

counts: (1) Misconduct in Office; (2) Incompetency; and

( 3) Violation of School Board Policy 4008(B).

The final hearing commenced as scheduled on October 20,

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

Board presented the testimony of Lakeshia Bass, Griselle Rivera -

Martinez, Fila Vaz, Desmond W ellington, April Nixon, Tanya Reid,

Janet Phelps, Orinthia Dias, and Susan Cooper. The School

BoardÓs Exhibits 1 through 8 were received into evidence upon

stipulation of the parties. Respondent testified on her own

behalf and presented the additional te stimony of Kerlaine Louis.

Respondent did not offer any exhibits into evidence.

The initial final hearing Transcript was filed on

November 21, 2014 . On November 26, 2014, the parties filed a

joint motion to extend the time within which to file proposed

recommended orders until December 12, 2014. On November 26,

2014, the undersigned entered an Order granting the motion. On

December 5, 2014, an amended final hearing Transcript was filed.

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 the

alleged violations.

FINDING S OF FACT

1. The School Board is a duly - constitu ted school board

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

public schools within Broward County, Florida.

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

employed by the School Board as a k indergarten teacher at Park

Lakes Elemen tary School (ÐPark LakesÑ), a public school in

Broward County, Florida.

3. The proposed discipline is based upon conduct occurring

on Thursday, May 15, 2014, during the 2013 - 2014 school year.

During the 2013 - 2014 school year, Kerlaine Louis was a

parap rofessional assigned to RespondentÓs class.

4. O n May 15, 2014 , Respondent and Ms. Louis took thirteen

of RespondentÓs kindergarten students to the City of Lauderhill

Mullins Park Pool Facility (Ðpool facilityÑ) to participate in a

water - safety class . 1/

5. To get to the pool facility on May 15, 2014, Respondent,

Ms. Louis, and the thirteen students rode together on a standard

Broward County s chool bus.

6. The bus picked up Respondent, Ms. Louis, and the

thirteen students from Park Lakes at approxim ately 11:00 a.m.

Respondent and Ms. Louis loaded the students onto the school bus

at that time . Approximately 10 - 15 minutes later, the bus arrived

at the pool facility with all of the thirteen students present .

7 . The bus drove directly from the sch ool to the pool

facility, and dropped Respondent, Ms. Louis, and the thirteen

students off in front of the building where the pool facility is

located. The pool is located behind the building.

8 . The thirteen students were scheduled to start their

w ater - safety class at 11:30 a.m. The class was scheduled to end

at 12:00 p.m. However, due to bad weather , the class was

canceled .

9 . Respondent learned of the cancellation of the class

after arriving at the pool and exiting the school bus with the

chi ldren. Because the class was canceled, Respondent, Ms. Louis ,

and the thirteen students gathered in the patio area located in

the back of the pool facility ( behind the building and near the

pool ) , where they waited under a covered patio area for the

schoo l bus to return to pick them up and bring them back to the

school .

10. Respondent brought some paperwork with her to work on

at the pool facility. While waiting on the bus to return, the

students interacted with each other. During this time, Ms. Louis

s pent most of her time pre - occupied with an exceptional student

in the class who is autistic . 2/ N o lifeguards were on duty or in

close proximity to the students and nobody was in the pool.

1 1 . While waiting for the bus to return to the pool

facility, Res pondent left the patio area and went inside the

building .

12. Respondent returned to the patio area in the back of

the pool facility after being gone approximately five minutes.

As she returned to the patio area, Respondent saw the bus coming

around the front of the building.

1 3 . The bus returned to the pool facil ity at approximately

12:00 p.m. to pick up Respondent, Ms. Louis, and the thirteen

students. Respondent gathered the children to walk them to the

area where they would board the bus. Be cause it was raining,

Respondent, Ms. Louis, and many of the children quickly boarded

the bus. Shortly thereafter, the bus departed for the return

trip to Park Lakes.

14. However, by the time the school bus returned to the

school at approximately 12:30 p.m., only Respondent, Ms. Louis,

and eleven of RespondentÓs students were on the b us. Two of

RespondentÓs students were left behind at the pool facility ,

unsupervised after Respondent and Ms. L o uis left the pool

facility without checking to see that all of the students were

accounted for.

15. Respondent did not realize that two of her students had

been left behind at the pool facility until sometime after

returning with the other students to her class room at Park

Lakes . 3/

1 6 . The two students that we re left behind at the pool

facility had gone to the bathroom. The bathroom is located along

an exterior corridor of the building.

1 7 . Taking attendance and conducting a Ðhead - countÑ of

kindergarten students is an essential duty of a kindergarten

te acher. Taking attendance and conducting a Ðhead - countÑ of

kindergarten students is required of all kindergarten teachers at

Park Lakes at every transition point during a field - trip. A

transition point occurs whenever there is movement of the

children.

18. Taking attendance and conducting a Ðhead - countÑ of

RespondentsÓ students who were participating in the water - safety

class at every transition point was necessary to insure that all

of RespondentsÓ studen ts who were participating were accounted

for an d remained safe. The responsibility for that task fell on

Respondent.

19. Respondent was expected to take attendance and conduct

a Ðhead - countÑ of the students tak ing the water - safety class as

they were leaving the classroom; as they were exiting the s chool;

as they were boarding the bus; and while they were in route to

the pool facility . Respondent was also expected to take

attendance and conduct a Ðhead - countÑ of the students taking the

water - safety class when they exited the pool facility; as they

b oarded the bus to return to the school; while they were on the

bus in route back to the school; and upon the studentsÓ return to

the school after departing the bus.

20 . At hearing, Respondent acknowledged that she failed to

take attendance or conduct a Ðhead - countÑ of her students prior

to boarding the bus at the pool facility to return to the school.

Furthermore, Respondent acknowledged at hearing that she failed

to take attendance or conduct a Ðhead - countÑ of her students

while on the bus during the return trip to the school, or at the

school after returning to the school. At hearing, Respondent

conceded that she Ðdropped the ballÑ by failing to take

attendance and conduct a Ðhead - countÑ of her students before

getting on the bus at the pool to retur n to the school , on the

bus during the return trip to the school , and when she returned

to the school.

21 . Had Respondent taken attendance and a Ðhead - countÑ of

her students while at the pool facility just prior to boarding

the bus to return to the scho ol, or while on the bus before

leaving the pool facility , she would have discovered that two of

the students were missing, and the children would not have been

left behind at the pool facility.

2 2 . Respondent was visibly upset and remorseful of her

cond uct at the hearing.

2 3 . Within five minutes after the school bus departed to

return to the school, April Nixon, a lifeguard at the pool

facility who was inside the building , encountered the two

children standing in an interior hallway of the pool facilit y.

Ms. Nixon immediately called Park Lakes to report that the two

students had been left behind; she locked all of the doors, and

she remained with the students from the point she discovered them

until two Park Lakes employees c ame to pick them up at

appr oximately 1:25 p.m., and return them to the school .

2 4 . Significantly, for several minutes after the bus

departed to return to the school, the two students were

unsupervised , and their physical health and safety were in

jeopardy . They could have easily wandered into the pool and

drowned; walked further outside of the facility where they could

have been kidnapped; or walked into a large lake, whi ch is

located very close to the perimeter of the pool facility --

accessible through a short walk through an unl ocked door .

2 5 . Respondent failed to make reasonable effort to protect

the two students from conditions harmful to the ir physical health

and safety by failing to take attendance and conduct a Ðhead -

countÑ of the students in her class on multiple occasion s on

May 15, 2014 , including : 1) when the student s exited the pool

facility to return to the bus; 2) as they board ed the bus at the

pool facility to return to the school ; 3) while they were on the

bus in route back to the school; and 4) upon the students Ó return

to the school after departing the bus .

2 6 . RespondentÓs conduct on May 15, 2014, also demonstrates

incompetency due to inefficiency.

CONCLUSIONS OF LAW

2 7 . DOAH has jurisdiction of the subject matter of and

the parties to this proceeding p ursuant to sections 120.569

and 120.57(1), Florida Statutes.

2 8 . 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).

2 9 . To do so, the School Board must prove, by a

preponderance of the evidence, that Respondent committed the

violations alleged in the Administrative Complaint , and that such

violatio ns 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); Gabriele v. Sch. Bd. of

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

30 . 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

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

3 1 . 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).

3 2 . Sections 1012.33(1)(a) and (6) provide in pertinent

part that instructional staff may be suspended during the

term of their employment contract only for Ðjust cause.Ñ

§ § 1012.33(1)(a) and (6), Fla. St at. ÐJust causeÑ is defined in

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

Ðincompetency.Ñ

3 3 . Section 1001.02(1), Florida 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.

3 4 . 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

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.;

3 5. Rule 6 A - 10.080 , titled ÐCode of Ethics of the E ducation

Profession in FloridaÑ (formerly numbered as r ule 6B - 1.001),

provides:

(1) The educator values the worth and

dignity of every person, th e pursuit of

truth, devotion to excellence, acquisition of

knowledge, and the nurture of democratic

citizenship. Essential to the achievement of

these standards are the freedom to learn and

to 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 integrit y.

(3) Aware of the importance of 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.

3 6 . 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 l ittle practical use in defining normative behavior.Ñ

Miami - Dade Cnty. Sch. Bd. v. Anderson , Case No. 13 - 2414 , 2013

Fla. Div. Adm. Hear. LEXIS 861, *16 - 17 (Fla. DOAH Dec . 30 , 201 3 );

Walton Cnty. Sch. Bd. v. Hurley , Case No. 14 - 0429 , 2014 Fla. Div.

Adm. Hea ring LEXIS 223, *19 (Fla. DOAH May 14, 2014 ) ; Miami - Dade

Cnty. Sch. Bd. v. Parris , Case No. 14 - 271, 2014 Fla. Div. Adm.

Hear. LEXIS 446, *28 - 29 (Fla. DOAH Aug . 26 , 201 4 ) .

3 7 . Rule 6A - 5.056(2)(b) incorporates by reference rule 6 A -

10.081 , which is ti tled: ÐPrinciples of Professional Conduct for

the Education Profession in Florida . Ñ Rule 6A - 10.081 (formerly

rule 6B - 1.006 ) 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 to the studentÓs mental

and/or physical health and/or safety.

3 8 . 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

ÐInefficiencyÑ in rul e 6A - 5.056(3)(a), effective July 8, 2012, to

mean: Ð Failure to perform duties prescribed by law .Ñ

3 9 . Turning to the present case, the School Board prove d by

a preponderance of the evidence that RespondentÓs conduct on

May 15, 2014, constitute s miscon duct in office. A critical duty

of a k indergarten teacher is to keep students safe. Kindergarten

teachers are entrusted with the care of their students during

school hours.

40 . Respondent engaged in misconduct in office by failing

to make reasonable e ffort to protect the two students who were

left behind at the pool from conditions harmful to their p hysical

health and/or safety. Respondent failed in her legal dut ies to

make reasonable effort to protect the two students from

conditions harmf ul to their physical health and /or safety by

failing to take attendance and conduct a Ðhead - countÑ of her

students on multiple occasions on May 15, 2014 .

41 . RespondentÓs breach of her legal dut ies as set forth

above also constitutes incompetence due to inefficienc y.

Respondent breached her duties on more than one occasion on

May 15, 2014, by failing to take attendance and conduct a Ðhead -

countÑ of her students at several key transitions.

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

the eviden ce that Respondent engaged in any conduct rising to the

level of a violation of School Board Policy 4008(B). No such

policy was offered into evidence at the hearing. Moreover, the

School Boar d does not address this issue in its P roposed

Recommended O rder .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Broward County School Board enter

a final order suspending Respondent without pay for 10 days.

DONE AND ENTERED this 8 th day of January , 2015 , 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 8 th day of January , 2015 .

ENDNOTE S

1/ The field - trip was part of a two - week water safety program for

each of the five kindergarten classes at Park Lakes. The program

taught basic water skills. The program began on May 12, 2014,

and ended on May 22, 2014. Not all of the students from each

kindergarten class attended the program. Only those students

whose parents gave permission to attend the progr am actually went

to the pool facility.

2/ RespondentÓs class contains some exceptional education

students, including autistic children. As a paraprofessional,

Ms. LouisÓs duties are primarily to assist the exceptional

education students in RespondentÓs class . As they waited for the

bus to return, Ms. Louis focused primarily on one autistic child,

who exhibited various behaviors, including attempting to put

various non - food items into his mouth .

3/ Neither of the two students left behind at the pool f acility

are exceptional education students.

COPIES FURNISHED:

Robert F. McKee, Esquire

Robert F. McKee, P.A.

1718 East Seventh Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33605

(eServed)

Tria Lawton - Russell, Esquire

The School Board of Bro ward County

600 Southeast Third Avenue , 14th Floor

Fort Lauderdale, Florida 33301

(eServed)

Lois S. Tepper, Interim Gen. Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

P am Stewart

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Robert Runcie, Superintendent

Broward County School Board

600 Southeast Third Avenue

Fort Lauderd ale, Florida 33301 - 3125

(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 ag ency that

will issue the Final Order in this case.