14-002465 Lee County School Board vs. Demetrius Felton Status: Closed Recommended Order on Wednesday, October 8, 2014.

Summary: School Board has just cause for discipline up to and including terminating Respondent for misconduct by shoving 7th grader against a wall, grabbing him, and yelling in anger over inappropriate comment student allegedly made.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 14 - 2465

DEMETRIUS FELTON,

Respondent.

_______________________________/

RECOMMENDED ORDER

O n August 13, 2014, a final administra tive hearing in this

case was held by video teleconference with sites in Tallahassee

and Fort Myers, Florida, before Elizabeth W. McArthur ,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert Dodig, Jr., Esqui re

School District of Lee County

2855 Colonial Boulevard

Fort Myers, Florida 33966

For Respondent: Robert J. Coleman, Esquire

Coleman and Coleman

Post Office Box 2089

Fort Myers, Florida 33902

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner has just cause

to terminate Respondent's employment.

PRELIMINARY STATEMENT

By letter dated April 11, 2014, Respo ndent, Demetrius Felton

(Respondent or Mr. Felton), was notified that a recommendation

would be made for the termination of his employment. A Petition

for Termination (Petition) issued on April 22, 2014, set forth

the factual allegations and charges on wh ich the proposed action

is based, and gave notice to Respondent of his right to an

administrative hearing.

Respondent timely requested an administrative hearing and on

May 22, 2014, the Lee County School Board (Petitioner or School

Board) referred the matt er to the Division of Administrative

Hearings for assignment of an administrative law judge to conduct

the hearing requested by Respondent.

In consultation with the parties, the final hearing was set

for August 13, 2014, by video teleconference. The heari ng

proceeded as scheduled.

Prior to the hearing, the parties filed a Joint Pre - Hearing

Stipulation in which they agreed to several facts. The partiesÓ

stipulated facts are incorporated in the Findings of Fact below.

At hearing, Petitioner presented the te stimony of Andrew

Brown, Taunya Blue, and Toni McMillian. PetitionerÓs Exhibits 1

through 17 were admitted in evidence; PetitionerÓs Exhibits 5

through 12 were admitted subject to the limitation for using

hearsay evidence for which no qualifying exception was

established. See § 120.57(1)(c), Fla. Stat. (2014) 1/ and Fla.

Admin. Code R. 28 - 106.213(3).

Respondent testified on his own behalf and also presented

the testimony of Kevin Weigand. RespondentÓs Exhibits 1

through 3, part of 4, 2/ and 5 were admitt ed in evidence.

The two - volume Transcript of the hearing was filed on

September 9, 2014. Both parties timely filed proposed

recommended orders (PROs) by the deadline of September 19, 2014,

and they have been considered in preparing this Recommended

Order.

FINDING S OF FACT

1. Petitioner is responsible for hiring, overseeing, and

terminating employees in the school district.

2. Since February 15, 2012, Respondent has been employed by

Petitioner as a Ðhelping teacher,Ñ also known as an education

paraprofess ional, at the districtÓs Royal Palm Exceptional School

Center (Royal Palm). Respondent is assigned as a Ðhelping

teacherÑ to the physical education (PE) teacher, Kevin Weigand.

3. As an education paraprofessional, Respondent is an

education support emplo yee as defined in section 1012.40, Florida

Statutes. Respondent is a member of the Support Personnel

Association of Lee County (SPALC). Both Petitioner and

Respondent are governed by the collective bargaining agreement

between Petitioner and SPALC.

4. R oyal Palm provides special education to students with

disabilities identified in their Individualized Education Plans

(IEPs). All of the Royal Palm students have IEPs; the majority

of the students are assigned there because of behavioral issues

they exhib ited when attending a regular school. PE teacher Kevin

Weigand described the Royal Palm student population as Ðmandated

to attend Royal Palm for an acting - out type of behavior, a lot of

physical aggression, verbal aggression.Ñ Helping teacher Taunya

Blue confirmed this description, characterizing the Royal Palm

students as ÐdisrespectfulÑ with Ðanger issues.Ñ

5. The impetus for PetitionerÓs proposed action at issue in

this case was an incident that occurred in the Royal Palm

gymnasium/cafeteria on March 26, 2014, during which Respondent

had physical contact with a seventh - grade male student, J.B. 3/

6. The physical altercation is depicted on a video

recording shot from one of two video surveillance cameras that

are at opposite ends of the gym. The afterm ath of the physical

altercation, in which Respondent and the student engaged in a

continuing verbal exchange while adult staff interceded and

attempted to separate J.B. and Respondent, can also be seen in

large part on the two camera recordings, although a t times the

scenes of interest shift out of view. The video clips from the

two surveillance cameras are on a DVD in evidence and were viewed

and discussed by several witnesses at the hearing. 4/ The

recordings are video only; there is no audio recording.

7. The altercation occurred near the end of the school

dayÓs last period when the seventh - graders had PE. Respondent

was on the gymÓs basketball court with a few students, including

J.B., a 13 - year - old who is large for his age. Respondent, who

played ba sketball in high school and college, is quite a bit

larger than J.B.; Respondent is 6Ó7Ñ, and a fit 225 pounds.

8. The video depicts the students shooting baskets or

playing basketball in a disorganized fashion. Respondent

approached J.B. as if to play d efense. Suddenly, J.B. ran off

the court and Respondent chased him. Respondent pushed J.B., and

then more forcefully shoved J.B. up against a wall. With both

hands, Respondent grabbed J.B. by his clothing (shirt or

sweatshirt), below his neck. Responde nt got very near J.B.,

literally in his face. After just a second or two, Respondent

let go and started to walk away. The scene just described was

recorded from camera nine, and the video sequence runs from about

13:54:30 to 13:54:37 on the video time tr acker.

9. Also in the gym at the time of the altercation, along

the same wall where Respondent momentarily pinned J.B., were a

few Ðhelping teachersÑ who had been sitting in chairs and

chatting. At some point, the custodial staff appeared, getting

ready to clean the floors. Mr. Weigand was not in the gym when

the physical altercation occurred, because he had taken several

students to the bathroom.

10. By the time Respondent let go of J.B., the other staff

in the gym who saw the altercation or heard the commotion

approached J.B. and Respondent. Ms. Blue, a helping teacher, saw

Respondent push J.B. up against the wall, and she approached

Respondent to urge him to walk away and to keep him from going

back to J.B. Mr. Weigand, who heard yelling just as he was

returning to the gym from the bathroom, hurried over to J.B. and

tried to get him to walk away and leave the gym.

11. During the sequence when Mr. Weigand and Ms. Blue got

in between J.B. and Respondent, Respondent and J.B. appeared to

be engaged in a heated exchange of words, an impression confirmed

by the witnesses. The video depicts Respondent taking a few

steps away from J.B. several times, but then turning around and

going back to where J.B. was being led away by Mr. Weigand.

Respondent appeare d to be directing angry words towards J.B.,

while Ms. Blue had her arm up towards RespondentÓs chest as if to

persuade him to back away. RespondentÓs anger was evident from

the fact that he alternated between gesturing wildly with his

hands and clenching his fists.

12. After RespondentÓs initial physical confrontation with

J.B., there was no more physical contact, and J.B. was not

injured in the physical altercation.

13. After the physical confrontation, RespondentÓs verbal

barrage directed towards J.B. was delivered in a Ðchallenging,Ñ

aggressive tone, according to Mr. Weigand. Mr. Weigand explained

that Respondent was challenging J.B. to make a move toward

Respondent. On J.B.Ós part, although he talked back to

Respondent, it was not in the same Ðchall engingÑ tone.

Mr. Weigand credibly described J.B. as appearing to be in shock

and taken aback by what happened. Before the end of the

encounter, J.B. was crying.

14. During the heated exchange between Respondent and J.B.,

one of the custodial staff radio ed for a school resource officer.

The officer escorted J.B. out of the gym. After J.B. was gone,

and the other students and staff had left, Respondent was left

with Mr. Weigand in the gym, along with the custodial staff who

began mopping the floor. Resp ondent appeared to be pacing and

continued to gesture and speak with an angry expression.

15. The surveillance recorded video only; there is no audio

recording. As to who said what to whom, the evidence was in

dispute, although within the range of possib ilities as to what

may have been said, it does not really matter.

16. Respondent admitted that when he suddenly took off

after J.B., shoved him up against the wall, grabbed him, and got

in his face, he had Ðlost his cool.Ñ He was hot; he was angry;

and w hat he did was a hot - headed act.

17. Respondent offered conflicting explanations as to what

provoked him to lose his cool. One possible explanation is

RespondentÓs claim that J.B. made a profane comment about

RespondentÓs wife: ÐWell your wife likes my [slang for private

part].Ñ Two weeks after the incident, while watching the video

of the incident at his pre - determination hearing on April 10,

2014, Respondent stated that J.B. made that profane comment at

13:54:29 on the video time tracker, the second b efore Respondent

took off after J.B., pushed him up against the wall, grabbed him,

and got in his face. Respondent admitted at the pre -

determination conference that he was very upset by this comment,

and was yelling at J.B.: ÐWhy would you try me like th at? Why

would you say something to me like that? . . . [H]onestly, IÓm

not going to lie, I was very upset with him.Ñ Respondent did not

think; he was just driven by anger to react. Respondent said

that he did not even realize that he had shoved and gra bbed J.B.

until he saw the undeniable video evidence.

18. Contrary to RespondentÓs admission that J.B. caused him

to lose his cool by making an offensive remark about RespondentÓs

wife, at hearing Respondent said that the comment about his wife

is not wh at made Respondent charge after J.B. When asked what

J.B. did or said to trigger RespondentÓs sudden angry reaction,

at first Respondent referred vaguely to his attempt to talk to

J.B. over a period of time, and that J.B. was threatening another

student, and then that J.B. was talking ÐjunkÑ to him, such as

that J.B. was going to hit him in his face if Respondent tried to

play defense on J.B. Respondent summarized in equally vague

fashion: ÐBut the main thing was about the whole threatening

situation.Ñ Later, Respondent claimed that the reason he charged

after J.B. and the reason he was upset was because he was unable

to get through to J.B., and also because J.B. Ðwas still going on

with the threats of violence.Ñ Still later, Respondent said that

he did not mean to push J.B. up against the wall, and that when

he pushed him, he was just trying to get his attention, to talk

to him. RespondentÓs shifting explanation cast s doubt on all

parts of the explanation, particularly the attempt to suggest

that Respo ndent was responding to any kind of threat.

19. At the pre - determination hearing, Respondent said that

it was not until after the physical altercation, when he was

speaking angrily to J.B. and others were trying to separate them,

that J.B. first said tha t he was going to hit Respondent if

Respondent did not get out of J.B.Ós face. That version was

corroborated by a witness. If such a comment was made, it was

made after Respondent shoved J.B. and pinned him against the

wall. Moreover, if J.B. made such a comment, at most it would

have been a conditional threat; the way to obviate that threat

would have been to get out of J.B.Ós face.

20. The greater weight of credible evidence established

that after RespondentÓs initial physical confrontation, the

inci dent turned into an unpleasant heated exchange, but no more.

Indeed, although Mr. Weigand and Ms. Blue were separating J.B.

and Respondent while they continued their verbal exchange, all

witnesses conceded that if J.B. had wanted to go after

Respondent, h e could have easily gotten by Mr. Weigand, and if

Respondent had wanted to go after J.B., he could have easily

gotten by Ms. Blue.

21. The heated verbal exchange continued for about five

minutes. It was a heated exchange that went on longer than it

shou ld have because the adult participant in the exchange did not

act like an adult, much less like an education paraprofessional.

As all witnesses testifying at hearing agreed, Respondent could

have and should have de - escalated the situation by walking away.

22. Respondent offered absolutely no legitimate

justification for engaging in the physical altercation with J.B.,

or for continuing with an angry verbal barrage. Any suggestion

that RespondentÓs actions were defensible as a way to get a

studentÓs atten tion for dialog about the studentÓs inappropriate

behavior or inappropriate comments is rejected. The alternate

suggestion that RespondentÓs actions were understandable because

of J.B.Ós alleged provocative comment about RespondentÓs wife is

also rejected . Even if J.B. made the comment attributed to him,

Respondent cannot allow himself to react the way he did.

23. Respondent admitted that when he charged and grabbed

J.B., J.B. was not a threat to him. Respondent also acknowledged

that Ðhands on student sÑ must be the last resort after every

attempt is made to de - escalate a situation with words, as he and

his colleagues are regularly trained. Despite RespondentÓs

training, he responded with anger and engaged in uncalled - for

physical contact with a studen t who was admittedly no threat.

24. At hearing, Respondent acknowledged that he acted

inappropriately, saying that he regrets his actions. However,

RespondentÓs acknowledgement was undermined by his explanation of

how he would handle the situation diffe rently if it arose again:

ÐI probably would have grabbed him, maybe, but probably not the

pushing part. The grabbing was initially to get his attention.Ñ

25. In his short time at Royal Palm, Respondent had good

evaluations. Mr. Weigand spoke of the good working relationship

they had, which he described as a partnership. Yet Mr. Weigand

was very troubled by the incident: Ð[T]he whole situation threw

me back for a while . . . I was shook up by it when it all first

happened.Ñ As a teacher in the Lee County School District for

over ten years, with nearly eight of those years spent teaching

at Royal Palm, Mr. Weigand put this incident in context: ÐI had

never in my career had something like this happen.Ñ

CONCLUSIONS OF LAW

26 . The Division of Administ rative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. §§ 120.569 , 120.57(1), and 120.65(6), Fla. Stat.

27 . In this proceeding, Petitioner seeks to terminate

RespondentÓs employment. Petitioner bears the burden of p roof,

and the standard of proof is by a preponderance of the evidence.

§ 120.57(1)(j), Fla. Stat.; McNeill v. Pinellas Cnty. Sch. Bd. ,

678 So. 2d 476, 477 (Fla. 2d DCA 1996); Dileo v. Sch. Bd. of Dade

Cnty. , 569 So. 2d 883 (Fla. 3d DCA 1990).

28. Respond ent is an educational support employee. Section

1012.40(2)(b), Florida Statutes, provides that educational

support employees such as Respondent may be terminated only Ðfor

reasons stated in the collective bargaining agreement.Ñ

29. The SPALC agreement pr ovides that any discipline that

constitutes Ða verbal warning, letter of warning, letter of

reprimand, suspension, demotion[,] or termination shall be for

just cause.Ñ SPALC agreement, £ 7.10. The SPALC agreement does

not define Ðjust cause.Ñ Id.

30. P etitioner has construed just cause for purposes of

discipline pursuant to the SPALC agreement in the same manner as

in section 1012.33 relating to instructional staff. See, e.g. ,

Lee Cnty. Sch. Bd. v. Preiss , Case No. 08 - 4443 (Fla. DOAH Feb.

13, 2009; LCS B Mar. 24, 2009), RO at 18, ¶ 47, and cases cited

therein. Relevant to the charges in this case, Ðjust causeÑ

includes misconduct in office, as defined by rule of the State

Board of Education. § 1012.33(1)(a), Fla. Stat.

31. Florida Administrative Code Rule 6A - 5.056 (formerly

Rule 6B - 4.009) defines the just - cause terms used in section

1012.33(1)(a). ÐMisconduct in officeÑ is defined to include a

violation of the Code of Ethics of the Education Profession in

Florida (Code of Ethics) , which is promulgated as Florida

Administrative Code Rule 6A - 10.080; a violation of the Principles

of Professional Conduct for the Education Profession in Florida

(Principles of Conduct), promulgated as Florida Administrative

Code Rule 6A - 10.081; or a violation of adopted scho ol board

rules. Fla. Admin. Code R. 6A - 5.056(2)(a) - (c).

32. Petitioner proved that Respondent committed misconduct

in office by violating rule 6A - 10.081(3)(a), one of the

Principles of Conduct, which requires the following:

( 3) Obligation to the studen t 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.

33. Petitioner proved its charges that Respondent committed

misconduct in office by committing battery on J.B. RespondentÓs

uncalled - for physical contact with J.B. constituted battery, as

an actual, intentional touching of another person against the

otherÓs will. Cf . § 784.03(1)(a)1., Fla. Stat. (defining the

cr iminal offense of battery). Respondent concedes as much,

offering this as a conclusion of law: Ð[T]he physical contact by

Respondent to [sic] J.B. technically is a battery and therefore

constitutes misconduct in office.Ñ (R. PRO at 14)

34. Although Res pondent concedes that he committed

misconduct in office by committing battery, Respondent asks for

understanding because Respondent Ðacted as many an ordinarily

law - abiding person wouldÑ when subjected to J.B.Ós profane

comment and the alleged threat from J.B. that he was going to hit

Respondent in the face. (R. PRO at 14) As found above, however,

the undersigned accepts the version of the incident whereby J.B.

did not threaten Respondent at all prior to the physical contact.

Thus, the undersigned reject s RespondentÓs contention that his

physical altercation was responsive to any threat. Instead,

Respondent lost his composure and took off after an adolescent

student when the student made a silly trash - talking comment about

RespondentÓs wife. RespondentÓ s overreaction is not

understandable and is not acceptable. Respondent was the

education paraprofessional; J.B. was the student. Respondent

acted, without thinking, in the heat of the moment, when he was

instead required to make reasonable effort to prot ect J.B. even

if J.B. was the provocateur. Respondent was required to resist a

studentÓs effort to provoke through inappropriate comments. That

is far too easy a button for adolescent students to push.

35. Petitioner also proved that Respondent committe d

misconduct in office by violating several of PetitionerÓs adopted

rules in evidence (School Board Policies). The Findings of Fact

above demonstrate that Respondent violated the following

promulgated rules:

• School Board Policy 5.02 , requiring that employ ees

adhere to high ethical standards ;

• School Board Policy 5.29 , requiring that employees

exemplify conduct t hat is lawful and professional , and

that contributes to a positive learning environment for

students ; and

• School Board Policy 2.02 , requiring that s chool staff

engage in appropriate behavior and avoid unacceptable/

disruptive behavior, including behavior which

interferes with or threatens to interfere with school

operations.

36. The Petition also charges Respondent with violating

School Board Policy 4.09, Threats of Violence, providing:

The School Board of Lee County is committed

to a safe and orderly educational environment

and authorizes the Superintendent and

District staff to respond rapidly to any

threats, suggestions or predictions of

violence that occur on any District - owned

property.

There shall be a ÐzeroÑ tolerance policy for

threats of violence. No student, staff,

parent/guardian or any other person shall

make any verbal, written or electronically

communicated threat, suggestion or predict ion

of violence against any person or group of

persons or to any District - owned facility.

Any serious threat of violence shall result

in immediate disciplinary action and referral

to the appropriate law enforcement agency.

37. Petitioner argues in its P RO that Respondent violated

this Ðzero - toleranceÑ rule by committing battery. However,

PetitionerÓs precedent requires the contrary conclusion. In Lee

County School Board v. Joseph Cofield , Case No. 10 - 1654 (Fla.

DOAH Sept. 24, 2010; LCSB Nov. 2, 2010), the School Board adopted

as a conclusion of law the determination that Policy 4.09 Ðrefers

to threats of violence and not actual violence.Ñ RO at 15, ¥ 36.

There, as here, the evidence established that a teacher had

unwarranted physical contact with a st udent, but the evidence did

not establish that the teacher had threatened the student. For

the same reasons expressed in Cofield , Petitioner failed to

establish that Respondent violated Policy 4.09.

38. Finally, the Petition charges Respondent with viola ting

provision 7.13 of the SPALC Agreement, a Work Place Civility

requirement providing:

Employees shall not engage in speech,

conduct, behavior (verbal or nonverbal), or

commit any act of any type which is

reasonably interpreted as abusive, profane,

intol erant, menacing, intimidating,

threatening, or harassing against any person

in the workplace. . . . The resolution of a

complaint under this provision may result in

the involuntary, temporary transfer of an

employee . . . . Such transfer may be

permanent when deemed necessary by the

Superintendent or the SuperintendentÓs

designee.

Petitioner proved that Respondent violated this provision.

However, Petitioner has proposed termination of RespondentÓs

employment, instead of the involuntary transfer contemp lated. It

does not appear that this violation supports the proposed action.

In any event, the charge is cumulative, in that it is based on

the same conduct for which Respondent has already been found to

have committed misconduct in office.

3 9 . As to th e appropriate penalty, Petitioner has Ðjust

causeÑ within the meaning of the SPALC Agreement to discipline

Respondent for his misconduct in office, up to and including

termination of employment. Whether Petitioner should exercise its

authority to terminat e RespondentÓs employment is a matter within

the School BoardÓs discretion, to be exercised in a manner deemed

appropriate under the circumstances of this case. In this regard,

the SPALC Agreement provides the following general guidance:

[I]n all instance s the degree of discipline

shall be reasonably related to the seriousness

of the offense and the employeeÓs record.

* * *

[Disciplinary] actions shall be when

appropriate, progressive in nature[.]

SPALC Agreement, § 7.10.

40 . Respondent has a goo d record with no prior discipline,

albeit over a relatively short period of time. However,

RespondentÓs offense was serious. Even though no harm may have

been done to J.B., the visual evidence of Respondent losing his

cool, chasing after a student, and p inning him to the wall was

distressing. RespondentÓs staunchest ally, Mr. Weigand, admitted

that he had never seen anything like that in his ten years as a

teacher, including eight years at Royal Palm; and Mr. Weigand did

not even see the worst part of th e altercation.

41 . Respondent urges that he be given a second chance. The

undersigned notes that Petitioner has argued against any second

chance by pointing to a Ðzero - toleranceÑ policy that does not

apply. While the undersigned cannot conclude that ter mination of

RespondentÓs employment is unreasonable, the School Board may

wish to consider, in light of the inapplicability of its Ðzero -

toleranceÑ policy, whether Respondent should be given a second

and final chance to prove that the March 26, 2014 , incid ent was

truly an aberration that will never happen again.

42 . Should the School Board be inclined to give Respondent

a second chance, the undersigned would recommend discipline that

includes suspension without pay for one year, from April 14,

2014, throug h April 13, 2015, and also, that requires Respondent

to undergo anger management counseling/training of the School

BoardÓs choosing prior to returning to work.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

finding Respondent guilty of misconduct in office and either

terminating his employment or suspending him without pay for one

year and requiring Respondent to undergo anger management

counseling/training before re turning to work.

DONE AND ENTERED this 8 th day of October , 2014 , in

Tallahassee, Leon County, Florida.

S

ELIZABETH W. MCARTHUR

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalache e 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 October , 2014 .

ENDNOTE S

1/ References to Florida Statutes are to t he 2014 codification,

as the law in effect at the time of hearing. The undersigned

notes that the incident described in the Petition took place on

March 26, 2014. If there had been subsequent changes to the

statutes, rules, and PetitionerÓs policies esta blishing

disciplinary standards or standards of conduct, Respondent would

be entitled to have the laws applied as they existed on March 26,

2014. However, no such changes were identified.

2/ RespondentÓs Exhibit 4 was offered as a two - page document.

Pa ge one is a student disciplinary referral form filled out by

hand, with Kevin WeigandÓs name written as the person making the

referral. In a section called Ðreason for referral,Ñ the form

provides three lines for a response. As offered by Respondent,

the document contained a handwritten response filling up all

three lines on the form (page one), and continuing on a blank

sheet, page two of the offered exhibit. Mr. Weigand confirmed

that he filled out the student disciplinary referral form.

However, he t estified that he only filled out the first one and

one - third lines of the Ðreason for referralÑ section, ending with

ÐMr. FultonÑ on line two. He has no idea who filled out the rest

of line two, or line three, or the continuation of the

description on pag e two. Based on his testimony, page two of the

proposed exhibit was removed. Page one was admitted, with the

understanding that the unauthenticated handwriting (after

ÐMr. FultonÑ on line two) would be disregarded. No explanation

was provided for the t roubling notion that the document had been

intentionally altered by someone other than Mr. Weigand.

3/ The parties agreed that students would be referred to by their

initials only in an effort to protect their privacy, and the

T ranscript was prepared ac cordingly. However, not all of the

exhibits offered by the parties were so protected. The School

Board should take the necessary precautions with the record, in

the event of a public records request, to ensure that the names

of students appearing in some of the exhibits are redacted.

4/ The video recordings were viewed simultaneously by the

parties, witnesses, and counsel at the Fort Myers hearing site

and by the undersigned at the Tallahassee hearing site. As the

transcript reflects, the orientation f or what was being viewed

and discussed was two - fold: first, by identification of which of

the two recordings on the DVD in evidence was being viewed -- the

first video file from camera 9, or the second file from camera 2;

and second, by reference to the vid eo time tracker, expressed in

hours, minutes, and seconds. Thus, for example, the physical

altercation can be seen on the first video file from camera 9,

from approximately 13:54:30 to 13:54:37. It is noted that, in

the event anyone besides Petitioner re quires viewing of

PetitionerÓs Exhibit 17, it will be necessary to first download

the proprietary software used by Petitioner for its surveillance

system. For future reference of parties wanting to offer similar

digital video evidence, the party offering such evidence should

provide specific information on how third parties such as the

Division of Administrative Hearings or an appellate court can

access and download the software so as to be able to view the

video evidence.

COPIES FURNISHED:

Robert Dodig , Jr., Esquire

School District of Lee County

2855 Colonial Boulevard

Fort Myers, Florida 33966

(eServed)

Robert J. Coleman, Esquire

Coleman and Coleman

Post Office Box 2089

Fort Myers, Florida 33902

(eServed)

Dr. Nancy J . Graham, Superintendent

School District of Lee County

2855 Colonial Boulevard

Fort Myers, Florida 33966 - 1012

(eServed)

Lois S. Tepper, Interim General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Stree t

Tallahassee, Florida 32399 - 0400

(eServed)

Pa m 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 d ays 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.