14-005117TTS Miami-Dade County School Board vs. Orenthal J. Adams Status: Closed Recommended Order on Friday, September 4, 2015.

Summary: School Board failed to prove by preponderance of evidence that teacher's conduct constituted misconduct in office, gross insubordination, or a violation of School Board policies justifying his suspension since October 7, 2014, and termination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 14 - 5117TTS

ORENTHAL J. ADAMS,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case came before Admin istrative Law Judge Darren A.

Schwartz for final hearing by video teleconference on June 15,

2015, with sites in Miami and Tallahassee, Florida.

APPEARANCES

For Petitioner: Sara M. Marken, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue , Suite 430

Miami, Florida 33132

For Respondent: Orenthal J. Adams, pro se

19953 Southwest 133 rd Court

Miami, Florida 33177

STATEMENT OF THE ISSUE

Whether just caus e exists for Petitioner to suspend without

pay and terminate Respondent ' s employment.

PRELIMINARY STATEMENT

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

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

suspend without pay and te rminate Respondent, Orenthal J. Adams.

On October 8, 2014, Respondent was advised of his right to

request an administrative hearing within 15 days of the receipt

of notice of the School Board ' s action .

On October 23, 2014, Respondent timely requested an

administrative hearing. Subsequently, the School Board referred

the matter to the Division of Administrative Hearings ( " DOAH " ) to

assign an Administrative Law Judge to conduct the final hearing.

On October 29, 2014, the undersigned entered an Order

R equ iring Notice of Specific Charges. On November 14, 2014, the

School Board filed its Notice of Specific Charges. On

February 25, 2015, the School Board filed a Motion to Amend

Notice of Specific Charges. On March 10, 2015, the undersigned

entered an Orde r Granting Motion to Amend Notice of Specific

Charges.

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

six counts : (1) Misconduct in Office; (2) Violation of School

Board Policy 3210, " Standards of Ethical Conduct "; (3) Violation

of School Board Policy 3210.01, " Code of Ethics "; (4) Violation

of School Board Policy 3213, " Student Supervision and Welfare ";

(5 ) Gross Ins ubordination; and (6) Violation of School Board

Policy 3120, " Employment of Instructional Staff ." 1/

At the request of the parties, the final hearing initially

was set for January 27, 2015. Following multiple continuances,

the final hearing was reset for June 15, 2015. The final hearing

commenced as scheduled on June 15, 2015, with both parties

present. At the hearing, the School Board presented the in -

person testimony of P. Z ., James Medina, Guillermo A. Munoz,

Carmen G. Gutierrez, Respondent, and Te rri Ann Chester. The

School Board also presented the deposition testimony of Khalilah

Martin and Jill Brookner because they were unavailable for the

hearing. The School Board ' s Exhibits 2 through 4, 9, 13, 14, 24,

25, 27, 28, and 29 were admitted into ev idence. 2 / Respondent

testified on his own behalf. Respondent ' s Exhibit 1 was admitted

into evidence.

The final hearing Transcript was filed on August 5, 2015 .

The parties f iled their proposed recommended orders on August 17,

2015, after 5:00 p.m. The parties ' proposed re commended orders

were filed one day late because they were filed after 5:00 p.m.

on August 17, 2015 . See Fla. Admin. Code R. 28 - 106.104(3).

However, neither party was prejudiced because of the late filing.

Accordingly, the parties ' p roposed recommended orders were given

consideration in the p reparation 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.

FINDINGS OF FACT

Backgr ound

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. Respondent began working for the School Board in August

2001. At all times mat erial to this case, Respondent has been

employed as a special education teacher at Homestead Senior High

School, a public school in Miami - Dade County, Florida.

Respondent t eaches students with autism spectrum disorder.

3. At all times material to this case, Respondent ' s

employment with the School Board has been governed by Florida

law, the School Board ' s policies, and the collective bargaining

agreement ( " CBA " ) between the School Board and the United

Teachers of Dade ( " UTD " ).

The Florida Alternative As sessment

4. The School Board ' s first allegation against R espondent

involves the Florida Alternative Assessment ( " FAA " ). The School

Board alleges that Respondent is subject to suspension and

termination because of " testing [ ir ] regularities involving

Respo ndent and the F lorida Alternative Assessment. " As factual

support of this contention, the School Board alleges in

paragraph 11 of the Amended Notice of Specific Charges that

" Respondent did not follow proper testing procedures since the

testing booklets were submitted in blank. "

5. The F AA is the standardized test given to students with

v ery significant cognitive disabilities , who are incapable of

taking the " FCAT " standardized test or the Florida standards

testing given by the school to regular educa tion students.

6 . The scoring on the FAA is very different from

traditional standardized tests . The test is divided into

20 items . Within each item , there are three separate questions.

Depending on the students ' performance, they may not be exposed

t o all of the questions. Whether or not a student has access to

all three of th e questions within a n item depends upon whether

the student correctly answers the previous question . For

example, if a student correctly answers question one of item one,

that student would then proceed to question two of item one. If

the student answers question two correctly, the student would

then proceed to question three of item one .

7 . The FAA can be administered over a number of days or

weeks. The test must be complet ed, however, within a five - week

testing period.

8 . I n administering the test to students, the questions on

the FAA are verbally read by the teacher to the student. The

teacher gives a verbal prompt, and the student verbally responds

with an answer . Ther e is one correct answer out of three

possible responses.

9 . After a student provides the teacher with a verbal

answer to the question, the teacher should mark the student ' s

answer in the test booklet. The student does not mark in the

test booklet. Out side of the testing situation, the teacher

should then transfer the scores from the test booklet into a

separate student answer sheet, which is a " bubble sheet . "

1 0 . Although a teacher ' s marking of students ' answers to

the questions on the test booklet is recommended, it is not

mandatory.

1 1 . No test booklets involving Respondent ' s administration

of the FAA to his students were offered into evidence.

1 2 . The evidence adduced at hearing does not establish that

Respondent engaged in testing irregularit ies by submitting FAA

test booklets in blank.

1 3 . In sum, the evidence at hearing fails to show that

Respondent ' s conduct with regard to the submission of FAA test

booklets constitutes misconduct in office, gross insubordination,

or a violation of School Board policies.

1 4 . At hearing, the School Board did not argue that

Respondent committed testing irregularities by submitting test

booklets in blank. Rather, t he School Board argued that

Respondent committed testing ir regularities because some students

had identical responses to questions on the " bubble sheets. "

Despite the discussion at the hearing regarding the purported

identical answers of some students on the " bubble sheets , " that

factual contention was not pled as a basis for Respondent ' s

suspens ion and termination , and the School Board never sought to

amend its Amended Notice of Specific Charges to assert this

factual contention .

Allegations Involving P.Z.

1 5 . The School Board alleges in paragraph 14 of the Amended

Notice of Specific Charges t hat Respondent is subject to

suspension and termination because he " held a student with his

arm behind his back and allowed other students to hit him. "

16 . At hearing, Respondent denied the allegation .

17 . At hearing, the School Board presented the testimony of

P .Z. , the alleged student victim. Without objection, P .Z. was

accompanied by his mother at the hearing.

18 . P .Z. was a 10th - grade special education student in

Respondent ' s class on the date of the alleged incident.

19 . P .Z. is a 15 - year - old student with autism spectrum

disorder.

2 0 . P .Z. has cognitive impairments which impact his ability

to comprehend events and communicate with others.

21. At hearing, the following exchange between the

undersigned and P.Z. occurred after P.Z. w as placed under oath by

the court reporter at the hearing:

THE ADMINISTRATIVE LAW JUDGE: Do you

understand the difference between telling the

truth and what would be considered a lie? Do

you understand the difference?

THE WITNESS: Sometimes I can ' t t ell what the

difference is of the truth or a lie.

2 2 . At hearing, counsel for the School Board asked

questions of P. Z. with regard to the alleged incident , as

follows :

Q: P., I ' m going to ask you about something

that happened at the beginning of thi s school

year. Do you remember getting into trouble

with Mr. Adams.

A: Yeah, kind of.

Q: Can you tell me -- do you remember why you

got into trouble with Mr. Adams?

A: Yeah. It was for many reasons. Well,

the last time, the last one, was when he

twisted my arm on my back like a military

guy, and let everyone hit me to this shoulder

where I hit the student. Sometimes he -- and

not only me, it ' s other kids who do that,

twisting my arm on the military thing. And

when the misbehaved student cries, Mr. Adams

and Ms. Poser just laugh .

Q: And that happened to you because you got

into trouble for hitting another kid?

A: Yeah, I got in trouble for many different

reasons sometimes.

Q: But that last time was because you had

hit another student?

A: Yes.

MS. MARKEN: Your Honor, if I could have one

moment. Judge, I don ' t have any other

questions.

2 3 . On cross - examination, P.Z. testified , however, as

follows:

Q: I do lead you to the bathroom or

accompany you. But P., let me ask you, when

I t old you to come apologize, did I twist

your arm or did I take you by your hand?

MS. MARKEN: Objection, asked and answered.

THE ADMINISTRATIVE LAW JUDGE: Overruled.

THE WITNESS: I don ' t think you twisted it.

It ' s hard to remember.

MR. ADAMS: J udge, I have no more questions.

THE WITNESS: It ' s hard to remember after you

left. Because he had to make me do my work,

and you even made me cry once. And you just

left.

MS. MARKEN: One moment, Judge.

THE ADMINISTRATIVE LAW JUDGE: Okay, P., you

a nswered the questions.

MS. MARKEN: No further questions, Judge.

2 4 . At hearing, P.Z. was happy to see Respondent , and they

exchanged pleasantries following P .Z. ' s testimony. As he was

leaving the hearing room following his testimony , P .Z. told

Respon dent: " Bye. I hope I see you again. "

2 5 . At hearing, no witnesses other than Respondent and P .Z.

testified regarding the alleged incident.

2 6 . At hearing, the undersigned had the opportunity to

observe the testimony and demeanor of both P .Z. and Res pondent.

The testimony of Respondent is credited and is more persuasive

than the testimony of P .Z., which is not credited or persuasive.

2 7 . The evidence does not establish that Respondent held a

student with his arm behind his back and allowed other s tudents

to hit him as alleged in the Amended Notice of Specific Charges .

2 8 . In sum, the evidence at hearing fails to show that

Respondent ' s conduct with regard to the incident in the classroom

involving P .Z. constitutes misconduct in office, gross

insubo rdination, or a violation of School Board policies. 3 /

Allegations Involving Respondent ' s Teaching Certificate

2 9 . Finally, t he School Board alleges in paragraph 22 of

the Amended Notice of Specific Charges that Respondent is subject

to suspension and term ination because his teaching certificate

was suspended on February 17, 2015, until further notice , making

Respondent ineligible for employment as a teacher with the School

Board.

30 . After the School Board suspended Respondent and

initiated dismissal pro ceedings, the Education Practices

Commission notified the School Board on February 17, 2015, that

Respondent ' s teaching certificate had been suspended, until

further notice, for failure to pay child support.

3 1 . The evidence presented at hearing establi shes that

Respondent ' s teaching certificate was suspended by the Florida

Department of Education on February 17, 2015.

3 2 . On March 30, 2015, Respondent received a letter from

the Florida Department of Revenue, Child Support Enforcement

( " DOR " ), indica ting that DOR directed the Department of Education

to reinstate Respondent ' s certificate because Respondent was

paying child support as agreed or ordered by the circuit court,

or he was otherwise entitled to have his certificate reinstated.

3 3 . Following the hearing, the School Board filed its post -

hearing E xhibit 30 (mis - numbered by the School Board as

Exhibit 29) , which consists of a letter from the Department of

Education. The letter from the Department of Education was

directed to Respondent and is d ated June 17, 2015. The letter

indicates that Respondent ' s teaching certificate is reinstated

because the " Department of Revenue (DOR) has directed our office

to reinstate your certificate because you are paying child

support as agreed or ordered, or are otherwise entitled based on

DOR ' s findings. "

3 4 . The evidence establish es that Respondent ' s teaching

certificate was suspended from February 17, 2015 , until June 17,

2015 .

3 5 . In sum, the evidence fails to show that the suspension

of Respondent ' s t eaching certificate from February 17, 2015 ,

until June 17, 2015, constitutes misconduct in office, gross

insubordination, or a violation of School Board policies

justifying his suspension since October 7, 2014, and termination.

CONCLUSIONS OF LAW

3 6 . 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 (201 4 ) .

3 7 . Respondent is an instructional employee, as that term

is defined in section 1012.01(2), Flor ida Statutes. The School

Board has the authority to suspend and terminate instructional

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

1012.33(6)(a).

3 8 . To do so, the School Board must prove, by a

preponderance of the evidence, that Respondent committed the

violations alleged in the Notice of Specific Charges, and that

such violations constitute " just cause " for suspension and

termination . § § 1012.33(1)(a) and (6), Fla. Stat.; Dileo v. Sch.

Bd. of Dade Cnty . , 569 So. 2d 883, 884 (Fla . 3d DCA 1990).

3 9 . The preponderance of the evidence standard requires

proof by " the greater weight of the evidence " or evidence that

" more likely than not " tends to prove a certain proposition.

Gross v. Lyons , 763 So. 3d 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. Dileo , 569 So. 2d at 884 .

40 . 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).

4 1 . The allegations of fact set forth in the charging

document are the facts upon which this preceding is predicated.

MacMillan , 629 So. 2d at 229; M.H. v. Dep ' t of Child . & Fam.

Servs. , 977 So. 2d 755, 763 (Fla. 2d DCA 2008); Trevisani v.

Dep ' t of Health , 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005);

Cottrill v. Dep ' t of Ins. , 685 So. 2d 1371, 1372 (Fla. 1st DCA

1996).

4 2 . Sections 1012.33(1)(a) and (6) provide in pertinent

part that instructional staff may be suspended and terminated

during the term of their employment contract only for " just

cause. " § § 1012.33(1)(a) and (6), Fla. Stat. " Just cause " is

defined in section 1012.33(1)(a) to include " misconduct in

office " and " gross insubordination. "

4 3 . Section 1001. 02(1), Florida Statutes, grants the State

Board of Education authority to adopt rules pursuant to

sections 120.536(1) and 120.54 to implement provisions of law

conferring duties upon it.

4 4 . Consistent with this rulemaking authority, the State

Board of Education has defined " misconduct in office " in Florida

Administrative Code R ule 6A - 5.056(2), which provides:

(2) " Misconduct in Office " means one or more

of the following:

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

Education Profession in Flori da as adopted in

Rule 6 A - 10.080 , F.A.C.;

(b) A violation of the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6 A -

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.

4 5 . Florida Administrative Code Rule 6A - 10.080, " Code of

Ethics of the Education Professi on in Florida, " provides:

(1) The educator values the worth and

dignity of every person, the pursuit of

truth, devotion to excellence, acquisition of

knowledge, and the nurture of democratic

citizenship. Essential to the achievement of

these standards a re the freedom to learn and

to teach and the guarantee of equal

opportunity for all.

(2) The educator ' s primary professional

concern will always be for the student and

for the development of the student ' s

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and integrity.

(3) Aware of the importance of maintaining

the respect and confidence of one ' s

colleagues, of students, of parents, and of

other members of the community, th e educator

strives to achieve and sustain the highest

degree of ethical conduct.

4 6 . While rule 6A - 5.056(2)(a) provides that violation of

the Code of Ethics rule constitutes " misconduct, " it has been

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

" Code of Ethics " are " so general and so obviously aspirational as

to be of little practical use in defining normative behavior. "

Miami - Dade Cnty. Sch. Bd v. McKenzie , 2015 Fla. Div. Adm. Hear.

LEXIS 7 (Fla. DOAH Jan . 8, 2015); Miami - Dade Cnt y. Sch. Bd. v.

Chandra - DAS , 2014 Fla. Div. Adm. Hear. LEXIS 562 ( Fla. DOAH

Nov . 17, 2014 ) .

4 7 . Rule 6A - 10.081, " Principles of Professional Conduct for

the Education Profession in Florida , " 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 student ' s mental

and/or physical health and/or safety.

* * *

(e) Shall not intentionally expose a studen t

to unnecessary embarrassment or

disparagement .

(f) Shall not intentionally violate or deny

a student ' s legal rights.

* * *

(4) Obligation to the profession of

education requires that the individual:

* * *

( c ) Shall not use ins titutional privileges

for personal gain or advantage.

* * *

(5) Obligation to the profession of

education requires that the individual:

(a) Shall maintain honesty in all

professional dealings.

* * *

( h ) Shall not submit fraudulen t information

on any document in connection with

professional activities.

4 8 . School Board Policy 3210, Standards of Ethical Conduct,

is a " rule " 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 student ' s mental and/or

physical health and/or safety ;

* * *

7. not intentionally expose a student to

unnecessary embarrassment or disparageme nt;

4 9 . School Board Policy 3210.01, Code of Ethics, is a

" rule " within the meaning of rule 6A - 5.056(2)(c). School Board

Policy 3210.01 mirrors the Code of Ethics found in rule 6A -

10.080. School Board Policy 3210.01 provides, in pertinent part:

A. T he 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 achievement of

these standards are the freedom to learn and

to teach and the guarantee of equal

opportunity for all.

B. The educator ' s primary professional

concern will always be for the student and

for the development of the student ' s

potential. The educator will therefore

strive for professional growth and w ill seek

to exercise the best professional judgment

and integrity.

C. Aware of the importance of maintaining

the respect and confidence of one ' s

colleagues, students, parents, and other

members of the community, the educator

strives to achieve and susta in the highest

degree of ethical conduct.

* * *

Fundamental Principles

The fundamental principles upon which this

Code of Ethics is predicated are as follows:

* * *

A. Citizenship -- Helping to create a society

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

law, equality of opportunity, due process,

reasoned argument, representative government,

checks and balances, rights and

responsibilities, and democratic decision -

making).

B. Cooperation -- Working together toward

goals as basic as h uman survival in an

increasingly interdependent world.

C. Fairness -- Treating people impartially,

not playing favorites, being open - minded, and

maintaining an objective attitude toward

those whose actions and ideas are different

from our own.

D. Hones ty -- Dealing truthfully with people,

being sincere, not deceiving them nor

stealing from them, not cheating nor lying.

E. Integrity -- Standing up for their beliefs

about what is right and what is wrong and

resisting social pressure to do wrong.

F. Kind ness -- Being sympathetic, helpful,

compassionate, benevolent, agreeable, and

gentle toward people and other living things.

G. Pursuit of Excellence -- Doing their best

with their talents, striving toward a goal,

and not giving up.

H. Respect -- Showing re gard 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 environme nt.

I. Responsibility Î - Thinking before acting

and being accountable for their actions,

paying attention to others and responding to

their needs. Responsibility emphasizes our

positive obligations to care for each other.

Each employee a grees 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 conf licts 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

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 student ' s mental

and/or physical health and/or safety;

* * *

E. shall not intentionally expose a student

to unnecessary embarra ssment or

disparagement;

F. shall not intentionally violate or deny a

student ' s legal rights.

50 . School Board Policy 3213, " Student Supervision and

Welfare, " is a " rule " within the meaning of rule 6A - 5.056(2)(c).

School Board Policy 3213 provid es, 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, contro l, and protection of

students on or off school property.

5 1 . Consistent with its rulemaking authority, the State

Board of Education has defined " gross insubordination " in

rule 6A - 5.056(4), which provides:

(4) " Gross insubordination " means the

i ntentional 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.

52. Section 1012.55(1)(b) , Florida Statutes, requi res each

person employed as a teacher to hold a teacher's certificate.

5 3 . Turning to the present case, the School Board failed to

prove by a preponderance of the evidence that Respondent ' s

conduct with regard to the submission of FAA test booklets

c onstitutes misconduct in office, gross insubordination, or a

violation of School Board policies. In this case, the Amended

No tice of Specific Charges alleges that Respondent engaged in

" testing [ir]regularities involving Respondent and the Florida

Alterna tive Assessment. " As factual support for this contention,

the School Board alleges in paragraph 11 of the Amended Notice of

Specific Charges that " Respondent did not follow proper testing

procedures since the testing booklets were submitted in blank. "

Th e scope of this proceeding is properly restricted to those

factual matters alleged in the Amended Notice of Specific

Charges. The Amended Notice of Specific Charges makes no

reference to students purportedly having identical answers on the

" bubble sheets. " Although there was discussion at the hearing

regarding the purported identical answers of some students on the

" bubble sheets, " the School Board never sought to amend the

Amended Notice of Specific Charges to assert such a factual

contention in support of Respondent ' s suspension and termination.

5 4 . The School Board also failed to prove by a

preponderance of the evidence that Respondent held P.Z. with his

arm behind his back and allowed other students to hit him as

alleged in the Amen ded Notice of Specific Charges. Accordingly,

the School Board failed to prove by a preponderance of the

evidence that Respondent ' s conduct with regard to the incident in

the classroom involving P.Z. constitutes misconduct in office,

gross insubordination, or a violation of School Board policies. 4/

5 5 . The preponderance of the evidence establishes that

Respondent ' s teaching certificate was suspended by the Education

Practices Commission on February 17, 2015, for failure to pay

child support. Responde nt ' s teaching certificate was reinstated

on June 17, 2015 , because DOR directed the Education Practices

Commission to reinstate the certificate due to Respondent ' s

paying of child support. Respondent was already suspended by the

School Board during the sa me time period his teaching certificate

was suspended by the Education Practices Commission for failure

to pay child support. The preponderance of the evidence does not

establish that the suspension of Respondent ' s teaching

certificate from February 17, 2 015 , until June 17, 2015,

constitutes misconduct in office, gross insubordination, or a

violation of School Board policies justifying his suspension

since October 7, 2014, and termination. However, Respondent is

not entitled to back pay for the period of February 17, 2015 , to

June 17, 2015. 5/

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 re scinding the proposed termination and

suspension , and prov ide Respondent with back pay , except for the

period of February 17 , 2015, to June 17 , 2015 .

DONE AND ENTERED this 4th day of September, 2015 , in

Tallahassee, Leon County, Florida.

S

DARREN A. SCHWARTZ

Administrative La w 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 4th day of September, 2015 .

ENDNOTE S

1/ Typographical errors appear in the Amended Notice of Specific

Charges, numbering " Gross Insubordination " as Count IV and

" Violation of School Board Policy 3120 - - Employment of

Instructional Staff, " as Count V, when in fact, they are Counts V

and VI, respectively.

2 / At the f inal hearing, the undersigned granted the School

Board ' s request to leave the record open for ten days to allow

the School Board to present documentation and rebuttal testimony

to show that Respo ndent ' s teaching certificate " is still

suspended and it hasn ' t been reinstated. " On July 7, 2015, the

School Board filed its untimely post - hearing exhibit (mis -

numbered 29), which the undersigned has , nevertheless , received

into evidence as Exhibit 30. E xhibit 30 reflects that

Respondent ' s teaching certificate has , in fact, been reinstated.

The School Board did not seek to offer any post - hearing rebuttal

testimony with regard to the issue of the status of Respondent ' s

teaching certificate .

At the final hearing, the undersigned advised the parties

that Ms. Brookner ' s deposition transcript that was received in

evidence as Exhibit 28 did not include any exhibits, even though

the transcript references exhibits to the deposition . T he

undersigned indicated th at he would leave the record open for a

period of ten days so that counsel for the School Board could

file the exhib its to the deposition. T he undersigned directed

counsel for the School Board to file the exhibits to

Ms. Brookner ' s deposition within ten days of the hearing date ,

and counsel for the School Board indicated at the hearing that

she would do so. However, counsel for the School Board did not

file the exhibits to the deposition with DOAH until August 12,

2015. See Notice of Filing Amended Peti tioner ' s Exhibit Twenty -

Eight . Nevertheless, the undersigned has received Petitioner ' s

Amended Exhibit 28 in evidence .

3 / A one - page " Student Statement, " pu r por tedly authored by P.Z.

(a/k/a P.C. ) on August 29, 2014, was received into evidence at

the final hearing as Respondent ' s Exhibit 13 . According to the

statement, which is hearsay, if the student is unable to write

his/her own statement, the administrator, in the presence of the

witness signing the document, must write the statement for t he

student in the student ' s own words/vocabulary; not the

administrator ' s vocabulary. The statement was written by James

Medina, an EBD clinician at the school , on behalf of P .Z . At the

bottom of the statement, the initials " P.C. " are hand - written

next t o a date of " 9/10/2014. " Mr. Medina testified that he

authored the statement on the " morning " of the alleged incident.

Another one - page " Student Statement " purportedly authored by

another student, J.H. , on August 29, 2014, was received into

evidence at the final hearing as Respondent ' s Exhibit 14 . This

hand - written statement, which is also hearsay, states: " I saw

Adam grab P by his hand and is neck then he put paul on the wall

and stand there do nothing. " At the bottom of the statement, the

initials J .H are hand - written next to a date of " 9/10/14. "

Although hearsay is admissible in administrative

proceedings, this does not necessarily mean that the undersigned

must use the hearsay in resolving a factual issue. The

statement s cannot be used as the so le basis to support a finding

of fact , because they do not fa ll within an exception to the

hearsay rule . Furthermore, the statements do not supplement or

explain other non - hearsay evidence. See § 120.57(1)(c), Fla.

Stat. ( " Hearsay evidence may be used f or the purpose of

supplementing or explaining other evidence, but it shall not be

sufficient in itself to support a finding unless it would be

admissible over objection in civil actions. " ).

Even if the statements could be used by the undersigned,

however , they would not be given any weight based on the live

testimony presented by Respondent at the final hearing. Unlike

J.H., who did not testify, the undersigned had an opportunity to

judge the demeanor of the live witnesses who testified. Unlike

J.H., th e live witnesses at the final hearing were subject to

cross - examination.

As indicated above, the testimony of Respondent at hearing

was more persuasive and credited over the live testimony of P .Z.

The live testimony of Respondent is also credited over the hand -

written hearsay statements of P .Z. and J.H., who did not testify.

The undersigned concludes that the written statement of P .Z.

was not written in his own words/vocabulary given P .Z. ' s

testimony at the final hearing. Moreover, the undersigned

c oncludes that the written statement of P .Z. was not witnessed by

P .Z. on the date Mr. Medina wrote it because there are different

dates indicated when P .Z. initialed the document (September 10,

2014) and when Mr. Medina wrote it (August 29, 2014).

Furtherm ore, the contents of the statement are inconsistent with

P .Z. ' s testimony at hearing. The written statement of J.H. does

not even support the School Board ' s allegation. The statement of

J.H. makes no mention of Respondent allegedly placing P .Z. ' s arm

beh ind his back and allowing other children to hit him.

4 / The School Board ' s Amended Notice of Specific Charges and

Proposed Recommended O rder references School Board Policy 3213,

Student Supervision of Welfare, and then purportedly seeks to

rely on P olicy 5630, Corporal Punishment and Use of Reasonable

Force. Both the Amended Notice of Specific Charges and Proposed

Recommended O rder quote from purported provisions of Policy 5630.

At the final hearing, School Board Policy 3213 was received in

evidenc e as the School Board ' s Exhibit 4. However, no purported

Policy 5630, Corporal Punishment and Use of Reasonable Force, was

offered into evidence.

5 / The School Board argues that Respondent was given various

directives during the 2013 - 2014 school year. Because the

undersigned has found that Respondent was not grossly

insubordinate with regard to the School Board ' s allegations

involving his administration of the FAA; the incident involving

P.Z., and the suspension of his teaching certificate, there is no

need to address any of the directives given to Respondent during

the 2013 - 2014 school year.

COPIES FURNISHED:

Orenthal J. Adams

19953 Southwest 133rd Court

Miami, Florida 33177

(eServed)

Sara M. Marken, Esquire

Miami - Dade County School Board

1450 N ortheast Second Avenue , Suite 430

Miami, Florida 33132

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Pam Stewart, Commissioner of Educa tion

Department of Education

Turlington Building, Suite 1514

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 - 1308

(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 issu e the Final Order in this case.