14-004175TTS Miami-Dade County School Board vs. Luz M. Morales Status: Closed Recommended Order on Tuesday, May 26, 2015.

Summary: Teacher who failed immediately to notice that her paraprofessional had left a child behind during a student activity was not guilty of negligent supervision; the school board does not have just cause to terminate her employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 14 - 4 1 75 TTS

LUZ M. MORALES ,

Respondent.

/

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

January 14 , 20 1 5 , at sites in Tallahassee and Miami , Florida.

APPEARANCES

For Petitioner: Sara M. Marken, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 430

Miami, Florida 33132

For Respondent: Jorge Diaz - Cueto, Esquire

Jorge Diaz - Cueto, P.A.

169 East Flagler Street, Suite 1435

Miami, Florida 33131

STATEMENT OF THE ISSU ES

T he first issue in this case is whether , as the district

school board alleges, a teacher who failed immediately to notice

that her paraprofessional had left a child behind during a

student activity is guilty of negligent supervision ; if the

alleg ed wrongdoing is proved, th e n it will be necessary to

decide whether the school board has just cause to terminate the

teacher's employment .

PRELIMINARY STATEMENT

At its regular meeting on September 3 , 2014, Petitioner

Miami - Dade County School Board voted t o approve the

superintendent's recommendation that Respondent Luz M. Morales

be immediately suspended without pay pending termination of her

employment as a teacher. The reasons for t his action were

spelled out in a Notice of Specific Charges, which was s erved on

September 16, 2014. The key allegation is that, on May 6, 2014,

during a school activity at the local Walmart, Ms. Morales's

paraprofessional inexplicably abandoned a wheelchair - bound,

nonverbal student in the candy aisle, where t he child remaine d,

unknown to Ms. Morales, for nearly 20 minutes before being

rescued. Petitioner contends that Ms. Morales is at least

partially to blame for this occurrence, on a theory of negligent

supervision, because she failed immediately to notice the

student's ab sence.

Ms. Morales timely requested a formal administrative

hearing to contest Petitioner's action. On September 9 , 2014 ,

the matter was referred to the Division of Administrative

Hearings ("DOAH") for further proceedings.

At the final hearing, which took place on January 14 , 20 1 5 ,

Petitioner called the following witnesses: Sgt. Raquel McCray

of the Florida City Police Department; Anne - Marie DuBoulay,

District Director, Office of Professional Standards, Miami - Dade

County Sc hool District ; and Ms. Morales. Petitioner's Exhibits

2, 3, 4, and 15 were received in evidence without objection .

Ms. Morales did not offer any exhibits but testified on h er own

behalf and called Alberto Fernandez, Ph.D., a principal in the

Miami - Dade C ounty Public Schools; and E.T., the mother of

student A.P., as additional witnesses.

T he final hearing transcript was filed on April 10, 2015 .

Each party timely filed a Proposed Recommended Order on the

deadline , which had been extended to May 1, 2015 , at

Respondent's request .

Unless otherwise indicated, citations to the official

statute law of the state of Florida refer to Florida Statutes

2014 , except that all references to statutes or rules defining

disciplinable offenses or prescribing penalties f or committing

such offenses are to the versions that were in effect at the

time of the alleged wrongful acts.

FINDINGS OF FACT

1. The Miami - Dade County School Board ("School Board"),

Petitioner in this case, is the constitutional entity authorized

to oper ate, control, and supervise the Miami - Dade County Public

School System.

2. At all times relevant to this case , Respondent Luz M.

Morales (" Morales ") was employed as a teacher in the Miami - Dade

County public schools. During the 2013 - 2014 school year, and

for many previous years, Morales taught at the Neva King Cooper

Educational Center, a school that provides special educational

services to students with severe intellectual disabilities.

3. Among the services provided at Neva King Cooper is

community - ba sed instruction ("CBI"), which entails taking

students with disabilities into the community on a regular basis

to learn and practice basic skills in real - life settings.

4. On May 6, 2014, Morales took her six students on a CBI

trip to the local Walmart. Accompanying Morales on this trip ,

to help supervise and control the students , were two

paraprofessionals, Natalie Glover and Efrain Cestero. The group

left the school on a bus at around 9:30 in the morning.

5. The plan was to explore books and toys in the store,

purchase a snack in the McDona ld's Restaurant located inside

Walmart, and return to school by around 11:00 a.m.

6. Upon arriving at Walmart, Ms. Glover informed Morales

that she was having some difficulty with one of the students and

asked i f she could skip the shopping component of the lesson and

take this student straight to McDonald's. Morales agreed.

7. Before setting out to shop , Morales assigned to

Mr. Cestero the primary custodial responsibility for two

students, one of whom, A.P., is unable to walk or talk and must

be transported in a wheelchair. Mr. Cestero was an experienced

employee with a record of good performance , and Morales's

delegation to Mr. Cestero of responsibility for the safety of

these students while in the store was authorized and proper.

Morales herself took charge of the three remaining students,

including one who was in a wheelchair.

8. After looking at toys, Morales led the group to the

candy aisle. As they moved through the store , Morales and her

three stud ents stayed ahead of Mr. Cestero and his pair of

students. Morales and Mr. Cestero talked with one another, but

she could not see Mr. Cestero or the two students under his

supervision , all of whom were following behind Morales . Morales

selected some cand y to purchase.

9. The group proceeded to the checkout aisles with Morales

still in the lead. Mr. Cestero told Morales that he and his

students would go ahead of her to McDonald's , where they would

all meet again after Morales (with three students in to w) had

paid for the candy and caught up with them . Morales thought

th is was fine and said so. She could not see Mr. Cestero and,

having no reason to believe that anything might be amiss , did

not turn around to look at him .

10. In fact something was wron g. Un be known to Morales,

Mr. Cestero inexplicably had left A.P. behind in the candy

aisle, unattended. When he departed for McDonald's, therefore,

Mr. Cestero was escorting only one student, not the two who had

been placed in his care. It was shortly af ter 10:00 a.m.

11. Morales completed her purchase without incident.

Unaware of any problem, she made her way to McDonald's, at the

front of the store. As she approached the restaurant, Morales

saw Ms. Glover and Mr. Cestero sitting at adjacent tables wi th

the students, behaving as though everything were under control

and showing no signs of concern or distress. She brought her

three students over to the paraprofessionals, and left them in

their care so that she could order snacks for the group. To

Mora les, the situation appeared to be normal . Responsible

adults had charge of the children. Neither para professional was

upset or flustered; to the contrary, their demeanors were calm,

even relaxed. No patently dangerous, suspicious, or unusual

condition w as visible to Morales. She did not notice that A.P.

was missing.

12. As Morales waited in line at the McDonald's counter,

she glanced over at the tables where her students and the

paraprofessionals were sitting and counted heads. Morales

thought she saw six students. She ordered hash browns.

13. With hash browns in hand, Morales returned to the

group . As soon as she got there, she began distributing the

snacks. Before she could sit down to eat, however, a police

officer arrived with A.P. , who ha d been sitting alone in the

candy aisle for nearly 20 minutes until ÏÏ after worried Walmart

employees had called for help ÏÏ being rescued at around 10:20

a.m.

Determinations of Ultimate Fact

14 . The greater weight of the evidence fails to establish

that Morales is guilty of the offense of misconduct in office,

which is defined in Florida Administrative Code R ule 6A -

5.056(2). 1 /

15. The greater weight of the evidence fails to establish

that Morales is guilty of violating School Board policies: (a)

on s tan dards of e thical c onduct; (b) establishing a Code of

Ethics; and (c) governing s tudent s upervision and w elfare.

CONCLUSIONS OF LAW

1 6 . DOAH has personal and subject matter jurisdiction in

this proceeding pursuant to s ections 1012.33(6)(a)2., 120.569,

an d 120.57(1), Florida Statutes.

17 . A district school board employee against whom a

disciplinary proceeding has been initiated must be given written

notice of the specific charges prior to the hearing. Although

the notice "need not be set forth with the t echnical nicety or

formal exactness required of pleadings in court," it should

"specify the [statute,] rule, [regulation, policy, or collective

bargaining provision] the [school board] alleges has been

violated and the conduct which occasioned [said] viola tion."

Jacker v. Sch . B d . of Dade C nty. , 426 So. 2d 1149, 1151 (Fla. 3d

DCA 1983)(Jorgenson, J. concurring).

18 . Once the school board, in its notice of specific

charges, has delineated the offenses alleged to justify

termination, those are the only grou nds upon wh ich dismissal may

be predicated . See Lusskin v. Ag . for Health Care Admin . , 731

So. 2d 67, 69 (Fla. 4th DCA 1999); Cottrill v. Dep ' t of Ins . ,

685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Klein v. Dep ' t of

Bus . & Prof ' l Reg . , 625 So. 2d 1237, 1238 - 39 (Fla. 2d DCA 1993);

Delk v. Dep ' t of Prof ' l Reg . , 595 So. 2d 966, 967 (Fla. 5th DCA

1992); Willner v. Dep ' t of Prof ' l Reg ., B d . of Med . , 563 So. 2d

805, 806 (Fla. 1st DCA 1990), rev. denied , 576 So. 2d 295 ( Fla.

1991).

19 . In an administr ative proceeding to suspend or dismiss

a member of the instructional staff, the school board, as the

charging party, bears the burden of proving, by a preponderance

of the evidence, each element of the charged offense(s). See

McNeill v. Pinellas Cnty . Sch . Bd. , 678 So. 2d 476, 477 (Fla. 2d

DCA 1996); Sublett v. Sumter C nty . Sch . Bd. , 664 So. 2d 1178,

1179 (Fla. 5th DCA 1995); MacMillan v. Nassau Cnty . Sch . Bd. ,

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

20 . The instructional staff member's guilt or innocence i s

a question of ultimate fact to be decided in the context of each

alleged violation. McKinney v. Castor , 667 So. 2d 387, 389

(Fla. 1st DCA 1995); Langston v. Jamerson , 653 So. 2d 489, 491

(Fla. 1st DCA 1995).

21 . In its Notice of Specific Charges , the School Board

advanced several theories for dismissing Morales : m isconduct in

o ffice (Count I ); ethical violations (Count s II and III ); and

failure to comply with policies governing student supervision

and welfare (Count IV ).

22 . The School Board does not contend that Morales is

strictly or vicariously liable for Mr. Cestero's plainly

insufficient supervision of A.P. at Walmart. 2 / Rather, t he

School Board maintains that Morales "al so bears responsibility"

for the occurrence, on the theory that she negl igently failed to

notice A.P. 's absence from the group , an oversight which the

School Board contends is tantamount to a breach of the teacher's

duty to supervise a paraprofessional.

23. To be clear, the School Board need n ot prove all the

elements of a negligence cause of action to terminate a

teacher's employment for just cause based on a failure to

super vi s e . Tort law, however, supplies a workable formulation

of the standard of care to be used in evaluating the teacher's

conduct where negligent supervision is charged as grounds for

dismissal, as here . In actions for damages against a district

school board based upon allegations of nonexistent or

i nsufficien t supervision, the teacher's duty is generally

described as being that of reasonable, prudent, and ordinary

care under the circumstances. See, e.g. , Collins v. School Bd. ,

471 So. 2d 560, 564 (Fla. 4th DCA 1985). Thus , to prove that

Morales committed any of the offenses with which she has been

charged, the School Board must e stablish , as a matter of

ultimate fact, that Morales's conduct on the morning of May 6,

2014 , fell below this standard of reasonable care.

24. T he School Board sums up its rationale for assigning

blame to Morales as follows:

[I]t was Respondent's job to know [A.P. was

missing]. Respondent, as the teacher, is

responsible for all six students. She

entrusted Mr. Cestero, her subordinate, with

the task of escorting two students during

the CBI activity. She delegated a task, and

as his supervisor, she had the obligation of

assuring that he was completing the task,

otherwise she's not supervising at all.

Pet. PRO at 18. The undersigned rejects the School Board's

theory , for the reasons set forth below .

25 . The fundamental problem with the School Board's

position is its failure adequately to account for the delegation

of primary custodial responsibility for A.P. to Mr. Cestero,

which all agree was reasonable and proper. The School Board's

view , apparently, is that although Morales reasonably delegated

th is responsibility to Mr. Cestero, she could not reasonably

rely upon him to carry it out . No law has been cited in support

of this proposition, and the facts of th e case do not support

it.

26. Clearly, t he reasonableness of Morales's conduct must

be con sidered in light of the fact that she had made Mr. Cestero

responsible for taking care of A.P . Viewing the situation from

Morales's perspective at the moment she placed A.P. and another

student in Mr. Cestero 's hands, which up to then had proven

capable , the question s to ask are : Of all the things that might

have gone wrong in Walmart that morning, how likely (or

foreseeable) was it that Mr. Cestero inexplicably would abandon

A.P. in the candy aisle ÏÏ just leave him there, helpless and

alone, for no appare nt reason, without saying a word to anyone?

Should Morales reasonably have been on guard against so

egregious a dereliction of duty on Mr. Cestero's part?

27. The School Board's answer is that Morales should have

noticed A.P.'s absence immediately upon entering McDonald's , if

not sooner, because it would have taken her but a few seconds to

count the students. This answer (which benefits substantially

from hindsight) effectively ignores that fact that Morales had

reasonably entrusted A.P.'s safety and we ll - being to

Mr. Cestero. Having done that, Morales was reasonably entitled

to rely up on Mr. Cestero to supervise his students (because

otherwise the delegation to Mr. Cestero would have been use less

to Morales ) , freeing her to focus full attention on oth er

matters, including the three students remaining under her care .

28. Of course , as the School Board claims, Morales had a

duty to supervise Mr. Cestero. But "supervise" is not

synonymous with "do the job of." The School Board did not offer

any persu asive evidence in support of a standard of care

pursuant to which a teacher must constantly count students at

every opportunity to make sure that those who have reasonably

been entrusted to another adult member of the instructional

staff have not gone miss ing.

29. This is not to say that, having committed A.P. to the

care of Mr. Cestero, Morales had washed her hands of the

student. Her duty to exercise reasonable care under the

circumstances to safeguard A.P. against harmful conditions

continued . Agai n , however, the circumstances included the

reasonable delegation of responsibility to Mr. Cestero. While

the record lacks direct evidence regarding the teacher's

standard of care in this particular situation, where the teacher

reasonably has delegated supervisory responsibility to another,

common sense and experience suggest that a distinction must be

made here between the teacher's duty to discern and respond to

(a) the presence of a patent problem, e.g., a s uspicious,

abnormal, or unexpected condition that is readily apparent; and

(b) the absence of a normal or anticipated condition, i.e., a

latent problem.

30. Suppose, for example, that when Morales walked into

McDonald's, instead of A.P. being absent, there had been a plume

of smoke rising from his wheelchair. In that situation, a

reasonably prudent teacher likely would be expected promptly to

notice, and take protective measures in response to, the

possibility that something was burning ÏÏ a patently ab normal and

potentially dangerous condition. In such circumstances, the

delegation of respon sibility to a paraprofessional would not

likely excuse much delay or any failure to act upon observation

of the smoke.

31. The School Board's position equates the absence of

A.P. from McDonald's to the presence of smoke in the foregoing

example . In fact, however, the two are distinguishable . In the

hypothetical, something not expected to be there, was . In the

instant case, some one expected to be there, was not. An

ordinary person , even when exercising reasonable care, will

usually notice an unusual , patent condition more quickly than

she will realize that a normal element is missing ÏÏ especially

when there is nothing out of the ordinary about the appearance

of all other conditions.

32. Thus, when Morales entered McDonald's and saw

Ms. Glover and Mr. Cestero sitting at tables and behaving as if

nothing were wrong, it was not unreasonable for her initially to

overlook the absence of A.P.; all the other visual cues were

consistent with normal conditions. Further, because Morales had

delegated responsibility for A.P.'s safety to Mr. Cestero, it

was not unreasonable for her to assume, in the absence of an

obvious sign to the contrary, that he was fulfilli ng his

obligations to the student. The idea that Mr. Cestero might

simply have left A.P. behind in the store without s aying a word

to anyone about it, while otherwise acting appropriately,

undoubtedly never entered Morales's mind. The undersigned has

det ermined that Mr. Cestero's wrongdoing, which is hard to view

as other than intentional, was not reasonably foreseeable.

33. The School Board argues that it "defies logic" that

Morales could have failed to notice that A.P. was missing when

she left her three students with Ms. Glover and Mr. Cestero

before buying the snacks, and that the "only way this could have

happened" was for Morales to have had "a complete disregard for

A.P.'s safety." Pet. PRO at 12. The undersigned disagrees.

Because Morales ne ither knew nor reasonably should have

suspected that Mr. Cestero had committed an act of possibly

criminal neglect, it is understandable that she assumed A.P.'s

presence in the restaurant despite not seeing him. 3 / Indeed, if

the School Board were correct, then Ms. Glover would be guilty

of completely disregarding A.P.'s safety too, for if she knew

A.P. was missing she failed to tell Morales . M ore likely,

however, Ms. Glover was herself unaware of th e fact , not because

of indifference, but because, like Mo rales, she reasonably

assumed that Mr. Cestero was watching his students as he should

have been . When Morales left her three students with Ms. Glover

and Mr. Cestero, it was reasonable for her to rely upon these

two seemingly responsible adults , each of w hom signaled by their

actions that the situation was under control.

34. The School Board makes much of Walmart's surveillance

videos, arguing that the available film clips show Morales

having ample time to discover A.P.'s absen ce. To be sure,

Morales's reliance upon the paraprofessionals would have become

unreasonable at some point as events unfolded. The hidden

camera footages are consistent with Morales's testimony , which

establishes that she likely was in McDonald's for approximately

five minutes, ma ybe a little longer, before the arrival of the

police officer. While this might have begun to approach the

temporal limit of reasonable reliance, the undersigned has

determined that the line was not crossed. Under the totality of

the circumstances of thi s case, the undersigned does not find

that Morales's supervision of the students or Mr. Cestero fell

below the standard of reasonable care.

35. Because the School Board failed to prove that Morales

negligently performed her duties on May 6, 2014, all of the

charges against her necessarily fail, as a matter of fact. Due

to this dispositive failure of proof, it is not necessary to

render additional conclusions of law.

RECO MMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the School Board enter a final order

exonerating Morales of all charges brought against h er in this

proceeding , reinstating h er as a teacher, and awarding h er back

salary as required under section 1012.33(6)(a) .

DONE AND ENTERED this 26th day of May , 201 5 , in

Tallahassee, Leon County, Florida.

S

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of May , 20 1 5 .

ENDNOTES

1 / The rule provides as follows:

(2) " Misconduct in Office " 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 [ 6A - 10.080 ] , F.A.C.;

(b) A violation of the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule

[ 6A - 10.081 ] , F.A.C.;

(c) A violation of the adopted school board

rules;

(d) Behavior that disrupts the student ' s

learning environment; or

(e) Behavior that reduces the teacher ' s

ability or his or her colleagues ' ability to

effectively perform duties.

2 / The School Board stresses, however, that Morales, as the

teacher, was ultimately responsible for all of the students in

her class, which comes close to suggesting that she must pay the

price for Mr. Cestero's poor performance. Nevertheless, the

School Board has acknowledged that to establish just cause for

the dismissal of Morales, under any of its theories, it must

prove that she, personally, was at least partially at fault.

3 / This is especially true because Morales knew that A.P. could

not have sneaked o ff on his own, and she reasonably should have

supposed that one of the paraprofessionals would mention that

A.P. had been removed by a third party if that were the case.

Obviously Morales could reasonably have believed that if either

paraprofessional thou ght A.P. had been kidnapped, injured, or in

any way threatened with harm, such a concern would be brought to

her attention immediately.

COPIES FURNISHED :

Sara M. Marken, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 430

Miami, Florida 33132

(eServed)

Jorge Diaz - Cueto, Esquire

Jorge Diaz - Cueto, P.A.

169 East Flagler Street, Suite 1435

Miami, Florida 33131

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Alberto M. Carvalho , Superintendent

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 912

Miami, Florida 33132

(eServed)

Pam Stewart, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(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

wi ll issue the Final Order in this case.