14-000683TTS Broward County School Board vs. Jacklyn James Status: Closed Recommended Order on Wednesday, July 16, 2014.

Summary: School Board failed to prove misconduct in office. Recommend dismissal of Administrative Complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 14 - 0683TTS

JACKLYN JAMES,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case

pursuant to sections 120.569 and 120.57(1), Florida Statutes,

before Jess ica E. Varn, a duly - designated Administrative Law

J udge of the Division of Administrative Hearings (DOAH). The

hearing was held on May 14, 2014 , by video telec onference at

sites in Lauderdale Lakes and Tallahassee, Florida.

APPEARANCES

For Petitioner: Adrian Alvarez, Esquire

Haliczer, Pettis, and Schwamm, P. A.

One Financial Plaza, Seventh Floor

100 Southeast Third Avenue

Fort Lauderdale, Florida 33394

For Respondent: Melissa C. Mihok, Esquire

Melissa C. Mihok , P.A.

1718 East Seventh Avenue, Suite 301

Tampa, Florida 33605

STATEMENT OF THE ISSUE

Whether there was just cause to suspend Jacklyn James from

her employment for three days without pay .

PRELIMINARY STATEMENT

On or around Januar y 12, 2014 , the Broward County

Superintendent of S chools ( Superintendent) issued an

Administrative Complaint recommending that the Broward County

School Board ( School Board) suspend Ms. James from her teaching

position for three days without pay.

Ms. James timely requested a formal admin istrative hearing .

On Febr uary 14, 2014, the matter was referred to DOAH for further

proceedings. The School Board filed its Administrative

Complaint, wherein it alleged that on October 21, 2013, Ms. James

left her classroom unattended to use the restroom and make copies

in the te ach er planning room. The School Board fur ther alleged

that Ms. James left her class under the supervision of a

teacherÓs aide and that a fight broke out in th e classroom while

Ms. James was absent. Based upon thi s alleged misconduct, the

School Board cha rged Ms. James with misconduct in office, in

violation of section 1012.33(1)(a) , Florida Statute s.

At the hearing, the School Board presented the testimony of

the following witnesses: Priscilla Ribeiro, p rincipal at Fort

Lauderdale Hig h School (FLHS); Yat zie Brown, employee and l abor

relations s pecialist; Nikitrius Davis, former student at FLHS;

Sara LaRosa, assistant p rincipal at FLHS; Christopher Beaulieu,

teacher at FLHS; and Kasim Liburd, su bstitute teacher.

PetitionerÓs E xhibits 1 through 5, 7, 12 , an d 13 were received in

evidence. Ms. James testified on her own behalf and filed the

deposition transcripts of Brian Fitzgerald, Alan Dwortzan, Fanny

Acuna, and Mike Alfieri, each a teacher at FLHS, in li e u of live

testimony . The parties stipulated to the admission of the

depositions, waiving all objections. RespondentÓs E xhibit 3 was

also received into evidence.

The final hearing T ranscript was filed with DOAH on June 10,

2014. The School Board filed an unopposed Motion for Extension

of Time to File Pro posed Recommended Orders on June 20, 2014,

which was granted. Both parties timely filed proposed

recommended or ders, which were considered in the preparation of

this Recommended Order .

Unless otherwise indicated, all rule and statutory

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

alleged misconduct.

FINDING S OF FACT

1. The School Board is charged with the duty to operate,

control, and supervise all public schools within Broward County,

Florida.

2. At all times relevant to this proceeding, Ms. James was

employed as an English teacher at FLHS. She has worked in this

capacity for the last nine years, teaching ninth and eleventh

grade students.

3. Ms. James taught six periods out of seven every day,

with a planning period during the second pe riod of the day.

4. In between periods, there are seven minutes for students

to move from class to class. During those transition times,

teachers are expected to stand at the door to their classrooms,

monitoring halls and greeting students.

5. At FLHS , it was common for a teacher to ask neighboring

teachers to watch a classroom if a teacher needed to use the

restroom or h ad some other type of emergency. This was an

u nwritten policy at FLHS.

6. In the fall semester of 2013, Ms. James had a teacherÓs

a ssistant who assisted her in the classroom. The teacherÓs

assistant was a student herself, a senior at FLHS.

7. On October 21, 2013, Ms. James did not leave her

classroom during her planning period, or during her lunch period.

When the sixth period of the day arrived, around 12:50 p.m., she

realized she needed to use the restroom.

8. After her stu dents entered the classroom, Ms. James

started the class and gave the students instruction on what they

needed to do. Realizing that s he had to use the res troom,

Ms. James gave additional instruction to her teacherÓs assistant

regarding the lesson and told her she would leave the door open

and have Mr. Beaulieu , a neighboring teacher, provide adult

supervision to the class in her absence.

9. Prior to leavi ng the classroom, Ms. James called

Mr. Liburd, who was substituting in a classroom adjac ent to hers

(but without visual ) , and asked him to listen out for her class.

10. About ten to fifteen minutes after six th period began,

Ms. James left her classroom t o use the restroom. Because the

restroom was in close vicinity to the planning area, and in

another building, she took some items she wanted to drop off at

her mailbox when she left. She left the door to her classroom

open.

11. Ms. James walked into Mr. BeaulieuÓs classroom,

informed him that her teacherÓs assistant was still in the room,

and asked if he could keep an eye on her classroom while she went

to the restroom. Ms. James informed Mr. Beaulieu that she had

left the door to her classroom open. M r. Beaulieu , whose

students were taking a test, asked if there was anyone else in

the room. Ms. James told him that her teacherÓs assistant was

present, and Mr. Beaulieu indicated he would open his door and

look out for her students. Ms. James picked up a ream of paper

while in Mr. BeaulieuÓs classroom and left to walk to the

building where the restroom was located .

12. Ms. James left through Mr. BeaulieuÓs back door,

as it was closer to the restroom, with the expectation that

Mr. Beaulieu would open t he door at the front of his classroom

and supervise her class as he agreed to do , and as he had done in

the past .

13. Ms. James walked to the planning area, put the ream of

paper in her mailbox, and used the restroom. In passing her

mailbox on her way ba ck to her cla ssroom, Ms. James noticed some

copies had been placed in her mailbox, an d she picked those up .

14. When Ms. James left the classroom, her students were

sitting quietly, working in pairs. Prior to that date, there had

never been a fight betwe en students in her classroom ; s he had no

reason to believe that any of t he students would fight in her

absence.

15. During the time when Ms. James was away from her

classroom, a fight broke out between two boys. They punched each

other, wrestled each oth er to the floor, and dragged each other

out into the hallway. Mr. Beaulieu was aware of the fight, but

never came out of his classroom to help. Mr. Liburd left his

classroom and broke up the fight.

16 . When she returned to her classroom, approximate ly s even

minutes after she left , she noticed that Mr. BeaulieuÓs door was

closed, which she immediately thought was strange, given his

agreement to watch her class. When she entered the classroom,

her students informed her that a fight had taken place in her

absence.

17. Due to a complaint by a parent of one of the boys

involved in the fight, the school conducted an investigation

regarding an allegation that Ms. James had left her students

unsupervised.

18. Likely due to self - interest and self - preservati on,

Mr. Beaulieu denied ever having been asked to supervise the

classroom while Ms. James went to the restroom. Mr. BeaulieuÓs

testimony at the hearing was not found credible. Several

portions of his testimony were contradicted by Ms. James,

Mr. Liburd , and the teacherÓs assistant.

19. Based upon the investigation, it was recommended that

Ms. James be suspended for three days without pay. Those who

made the recommendation admitted that they would not have made

such a r ecommendation if Ms. James had as ked another teacher to

watch her class while she used the restroom.

20. At the time of the recommendation to sus pend Ms. James ,

the FLHS administration was unaware that it was common practice

for the teachers at their school to request a neighboring teach er

to watch their classrooms while they used the restroom.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the subject matter and parties to this case

pursuant to sections 120.569 and 120.57(1), Florida Statutes.

22. In an administ rative proceeding to suspend a member o f

the instructional staff, the S cho ol Board bears the burden of

proving, by a preponderance of the evidence, each element of the

charged offense. McNeill v. Pinellas Cnty. Sch. Bd. , 678 So. 2d

476, 477 (Fla. 2d DCA 1996); Sublett v. Sumter Cnty. Sch. Bd. ,

664 So. 2d 1178, 1179 (Fla. 5th DCA 1995). The preponderance of

the evidence standard requires proof by "the greater weight of

the evidence" or evidence that "more likely than not" tends to

p rove a certain proposition. Gross v. Lyons , 763 So. 2d 276, 280

n.1 (Fla. 2000) .

23 . Pursuant to section 1012.33(6)(a), Florida Statutes,

the School Board is authorized to suspend:

Any member of the instructional staff,

excluding an employee specifi ed in

subsection (4), may be suspended or dismissed

at any time for just cause as provided in

paragraph (1)(a). The district school board

must notify the employee in writing whenever

charges are made against the employee and may

suspend such person witho ut pay; but, if the

charges are not substantiated, the employee

shall be immediately reinstated, and his or

her back salary shall be paid.

ÐJust causeÑ is defined as:

Just cause includes, but is not limited to,

the following instances, as defined by rule

o f the State Board of Education: immorality,

misconduct in office, incompetency, two

consecutive annual performance evaluation

ratings of unsatisfactory under s. 1012.34 ,

two annual performance evaluation ratings of

unsatisfactory within a 3 - year period und er

s. 1012.34 , three consecutive annual

performance evaluation ratings of needs

improvement or a combination of needs

improvement and unsatisfactory under

s. 1012.34 , gross insubordination, willful

neglect of duty, or being convicted or found

guilty of, or entering a plea of guilty to,

regardless of adjudication of guilt, any

crime involving moral turpitude.

§ 1012.33(1)(a), Fla. Stat.

24. Florida Administrative Code Rule 6A - 5.056 states:

(2) ÐMisconduct in OfficeÑ means one or more

of the following :

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

Education Profession in Florida as adopted in

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

(b) A violation of the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B -

1.006, F.A.C.;

(c) A violation of the adopted school board

rules;

(d) Behavior that disrupts the studentÓs

learning environment; or

(e) Behavior that reduces the teacherÓs

ability or his or her colleagueÓs ability to

effectively perform duties.

25. The School Boar d has alleged a violation of Florida

Administrative Code Rule 6A - 10.081, specifically the following

provision:

(3) Obligation to the student requires the

individual:

(a) Shall make reasonable effort to protect

the student from conditions harmful to

lear ning and/or to the studentÓs mental

and/or physical health and/or safety.

26. No credible evidence was presented establishing that

Ms. James placed her studentsÓ safety in jeopardy. Ms. James

used the common practice of asking a neighboring teacher to

s upervise her classroom while she used the restroom, and ,

unfortunately, Mr. Beaulieu failed to supervise the students, as

he had agreed to do.

27. The School Board failed to prove, by a preponderance of

the evidence, that Ms. James was guilty of misconduc t in office.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

dismissing the Administrative Complaint against Ms. James and

ordering that Ms. James be awarded back pa y for the previously

served three - day suspension.

DONE AND ENTERED this 16 th day of July , 2014 , in

Tallahassee, Leon County, Florida.

S

JESSICA E. VARN

Administrative Law Judge

Division of Administrative Hearings

The DeS oto 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 16 th day of July , 2014 .

COPIES FURNISHED:

Melissa C. Mihok, Esquire

Melissa C. Mihok , P.A.

1718 East Seventh Avenue , Suite 301

Tampa, Florida 33605

Adrian Alvarez , Esquire

Haliczer, Pettis, and Schwamm, P. A.

One Financial Plaza, Seventh Floor

100 Southeast Third Avenue

Fort Lauderdale, Florida 33394

Mat thew Carson, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0442

Robert Runcie, Superintendent

Broward County School Board

Floor 10

600 S outheast Third Avenue

Fort Lauderda le, F lorida 33301

Pam Stewart, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0442

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.