15-002319TTS Hernando County School Board vs. Teresa Wimmer Status: Closed Recommended Order on Tuesday, August 25, 2015.

Summary: Petitioner failed to prove by a preponderance of competent, substantial evidence that Respondent violated rules 6A-10.080, or 6A-10.081, or the School Board Staff Handbook. As such, the notice of recommendation of termination should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HERNANDO COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 15 - 2319TTS

TERESA WIMMER,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case was heard on July 7, 201 5, in Brooksville,

Florida, before E. Gary Early, an Administrative Law Judge

assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Thomas Martin Gonzalez, Esquire

Thompson, Sizemore, Gonzalez

and Hearing, P.A.

Suite 16 00

201 North Franklin Street

Tampa, Florida 33602 - 5110

For Respondent: Mark S. Herdman, Esquire

Herdman and Sakellarides, P.A.

Suite 110

29605 U.S. Highway 19 North

Clearwater, Florida 33761 - 1538

STATEMENT OF THE ISSUE

Whether Respondent, Teresa Wimmer, violated Florida

Administrative Code Rules 6A - 10.080, the Code of Ethics of the

Education Profession in Florida ( Code of Ethics ) , or 6A - 10.081,

the Principles of Professional Conduct of the Education

Profession in Florida ( Principles of Pro fessional Conduct ) , as

alleged in the Hernando County School Board Ós March 9, 2015 ,

notice of recommendation of termination, and March 24, 2015 ,

modification of that notice ; and, if so, the nature of the

sanctions.

PRELIMINARY STATEMENT

On March 9, 2015, t he Hernando County School District

s uperintendent of s chools notified Respondent of the

s uperintendentÓs intent to recommend that the Hernando County

School Board (School Board) terminate Respondent's employment as

a teacher at the Pine Grove Elementary Sc hool (Pine Grove).

Prior to the proposed termination, Respondent taught a

first - grade class.

The notice of recommendation of termination alleged that

Respondent engaged in an incident of Ðpulling/dragging a student

to the front office.Ñ On the basis of that alleged conduct,

Petitioner alleged that Respondent violated rule s 6A - 10.080(2)

and (3) , rules 6A - 10.081(3)(a) and (3) (e), and the School Board

Policy/Staff Handbook ( Staff Handbook) .

On March 23, 2015, Respondent timely filed a P etition

disputing t he allegations in the recommendation of termination .

O n March 24, 2015, Respondent was notified that the

recommendation to the School Board would be modified from

termination to suspension without pay pending resolution of her

challenge.

The P etition w as referred by the School Board to the

Division of Administrative Hearings on April 22, 2015. The

matter was noticed for hearing on July 7, 2015, and was held as

scheduled.

At the final hearing, Petitioner presented the testimony of

Nancy Johnson, who wa s, at all times relevant hereto, the

assistant principal at Pine Grove; Paul Leftwich, the School

Board telecommunication manager ; Pamela Kasten, an elementary

assistant at Pine Grove; Thomas Deen, Jr., who was, at all times

relevant hereto, the p rincipal at Pine Grove; Bonnie Tyree, a

first - grade teacher at Pine Grove; and Heather Martin,

RespondentÓs executive director of Business Services.

Petitioner offered PetitionerÓs Exhibits 1 - 7, 9 - 11, 13 - 26, and

28 - 30, which were received in evidence. PetitionerÓ s Exhibit 8

was offered , but not received in evidence, and was thereafter

proffered .

Respondent did not testify, relying on the written

statements that were of fered by Petitioner in its case - in - chief.

As the statements were offered by Petitioner against Respondent,

they are subject to an exception from the hearsay rule as

established in section 90.803(18) , Florida Statutes . Respondent

offered RespondentÓs Exhibit 1, which was received in evidence.

A one - volume Transcript of the hearing was filed on

Ju ly 23, 2015. Petitioner and Respondent timely filed Proposed

Recommended Orders , which have been considered in the

preparation of this Recommended Order.

This proceeding is governed by the law in effect at the

time of the commission of the acts alleged to warrant

discipline. See McCloskey v. DepÓt of Fin. Servs. , 115 So. 3d

441 (Fla. 5th DCA 2013). Thus, references to statutes are to

Florida Statutes (2014) , unless otherwise noted.

FINDING S OF FACT

1. Petitioner is the constitutional entity authoriz ed to

operate, control, and supervise the system of public schools in

Hernando County, Florida. Art. IX, § 4(b), Fla . Const . ;

§ 1001.32, Fla. Stat. Petitioner has the authority to

discipline instructional staff and other school employees.

§ 1012.22(1)(f ), Fla . Stat .

2. Respondent has been a teacher at Pine Grove for roughly

11 years. During the 2014 - 2015 school year, Respondent was a

teacher of first - grade students, with a class of approximately

18 students.

3. As a classroom teacher, Respondent was expected to

comply with the 2014 - 2015 Staff Handbook. Among the provisions

applicable to Respondent was the following:

TOUCHING STUDENTS

Employees are advised that they should not

touch students in any way except for the

protection of the health, safety and/or

welfare of a student or for protection of

themselves.

4. Respondent has been the subject of several disciplinary

proceedings over the years.

5. In September 2004, Respondent was involved in an

employee conference for grabbing a studentÓs arm on two

occasions to correct misbehaviors, the result of which appeared

to be a reprimand. The report of the employee conference was to

remain in the school file for one year.

6. In January 2006, Respondent was involved in an employee

conference for ma king derogato ry comments regarding a student

and allowing classmates to do the same. Respondent was required

to re - read the Code of Ethics and Professional Practice forms

and write a letter of apology to the student and parents. The

employee conference r eport closed with Ð[a]ny further behaviors

involving embarrassment to student s will result in further

disciplinary action. Ñ

7. In September 2013, Respondent was involved in an

incident that is of more direct relevance to this proceeding.

In that instan ce, Respondent was accused of roughly handling

students in her classroom. As a result, she was offered, and

accepted, a Stipulation for Employee Discipline and Last Chance

Agreement (Stipulation).

8. In the Stipulation, Respondent acknowledged that sh e

Ðengaged in misconduct by having inappropriate and

unprofessional interactions with students in her classroomÑ and

that such conduct Ðwarrants disciplinary action up to and

including termination.Ñ

9. In lieu of termination, the School Board and Respond ent

agreed that she would be suspended for ten days and , thereafter ,

serve a probationary period for the remainder of the 2013 - 2014

school year. The Stipulation further provided that Respondent

Ðagrees that she will not engage in the conduct which gave ri se

to this Stipulation at any time or any place so long as she is

an employee of the Hernando County School District. Further,

[Respondent] understands that if she does engage in misconduct,

it will result in disciplinary action, up to and including

termi nation.Ñ

10. Respondent successfully completed the term s of her

probation without incident.

11. School principals, assistant principals, guidance

counselors, and persons in similar duties are trained in Crisis

Prevention Intervention (CPI), which is an approved method of

restraining or transporting completely out - of - control students

or removing children from the classroom.

12. CPI training is not provided as a matter of course to

classroom teachers. Respondent has not received CPI training.

13. Holding a studentÓs hand is not a CPI hold. There is

nothing inherently inappropriate with a teacher taking a student

by the hand and walking with the student.

14. The 2014 - 2015 Staff Handbook provides , in the section

entitled ÐReturn of Student s to Classroom (Authority of the

Teacher) , Ñ that:

Teachers should follow their schoolÓs

procedure for the removal of students who

are acting out. Suggestions include:

having an adult accompany the student from

the class or requesting an administrator to

come to the class. ( emphasis added ) .

15. The routine procedure for removal of a disruptive or

unruly student from the classroom is for the classroom teacher

to call the office, whereupon Ms. Johnson, Ms. Kasten, or a

guidance counselor, each of whom ar e trained in CPI, would go to

the room, try to calm the student , and, if warranted, take the

student to the office.

16. Despite the procedure described above, Ms. Kasten

testified that teachers, on occasion, Ðwould bring the student

down for me to talk to or the guidance counselor to talk to.Ñ

In such instances, Ð[t]hey would just walk them downÑ to the

office. Although the teacher would usually call the office

first, the evidence did not support a finding that a call was

required or necessary , or tha t it happened in each event.

Although the timing of those other events of taking students to

the office was described as generally occurring Ðduring their

planning period or whatever, if they were at specials or

whatever,Ñ the preponderance of the evidenc e supports a finding

that the act of walking a student to the office, per se , does

not constitute a violation of the Code of Ethics, the Principles

of Professional Conduct, or the School Board Staff Handbook and

that the school has not previously determine d it to be so.

17. Among the reasons for having teachers call the office

for assistance with disruptive students is to limit those

periods in which a teacher may leave students unattended or, as

in this case, leave a co - teacher responsible for up to

36 students while the disruptive student was walked to the

office. However, Ms. Tyree testified that there have been times

when she would ask Respondent to Ðkeep an eye on [her] classÑ

while she went to attend to other things, and vice versa. There

was no suggestion that asking a co - teacher to watch over a class

was improper, as long as Ðyour class is covered.Ñ

18. In the weeks prior to February 4, 2015, J.S., a

student in RespondentÓs classroom, had become increasingly

disruptive in the classroom. The behaviors ranged from J.S.

talking in Ðbaby - talkÑ and rolling crayons on his desk , to

choking another student with a lanyard. Respondent did not know

why J.S.Ós behavior had spiraled out of control, but indicated

to Ms. Kasten that it was creating a prob lem for her ability not

only to teach J.S., but to teach the other students in her

classroom.

19. The office was called on three occasions to deal with

J.S., and Ms. Kasten went to the class to address the

situations. On two occasions, J.S. remained in the classroom

after Ms. KastenÓs intervention. On one occasion, Ms. Kasten

removed J.S. from the classroom.

20. On the occasion when Ms. Kasten removed him from

RespondentÓs classroom, J.S. was walking around the room and

disturbing the other students. Ms. Kasten could not get J.S. to

listen to her. Thus, she decided to take J.S. to the office.

She did not employ her CPI training or use a CPI hold, but took

him by the hand Ðwith the idea of keeping him from getting

away.Ñ During the walk to the offi ce, J.S. Ðwas pulling a

little bitÑ to try and get away. 1/ There was no suggestion that

the actions of Ms. Kasten in taking J.S. by the hand and walking

him to the office were inappropriate or contrary to the Code of

Ethics, the Principles of Professional Conduct, or the School

Board Staff Handbook.

21. On the afternoon of February 3, 2015, Ms. Kasten met

with Respondent to discuss the behavior of J.S. in her

classroom. Respondent was upset and frustrated with J.S.Ós

unruly behavior and wanted to know what could be done about it.

Ms. Kasten suggested that the two of them could work to develop

a behavior plan for J.S. and indicated that she would bring a

plan to Respondent the next day for them to work on.

22. The incident that forms the basis of this proceeding

occurred on February 4, 2015.

23. As students were entering the class for the day,

Respondent heard screaming and the words Ðstop hitting me.Ñ She

turned and saw J.S. striking a female student with his fists.

Respondent was able to verbally quell the disturbance. However,

after initially returning to his seat, J.S. went to the back of

the room where he began kicking table legs and other items.

24. Respondent asserted that prior to her taking the

student to the office, she called Ms. Ka sten to advise her that

she would be doing so and received permission from Ms. Kasten.

25. Ms. Kasten had no recollection of having received any

such call. The telephone records admitted at the hearing do not

reflect that any calls were placed between RespondentÓs line and

the office. 2/ There was no evidence to support a finding that

the telephone records maintained by the school were unreliable.

The greater weight of the evidence indicates that Respondent did

not receive prior approval before taking the student to the

office on the morning of February 4, 2015. However, the issue

of whether Respondent received or did not receive permission to

take J.S. to the office, and whether the act of doing so

violated any school policy, was not pled as a basis for

RespondentÓs termination.

26. On her way out of the classroom with J.S., Respondent

passed through the classroom of her co - teacher, Ms. Tyree, with

whom she shared a paired classroom, and stated to her something

to the effect of Ð[c]an you watch my c lass? They told me to

take [J.S.] to the office.Ñ Although not a frequent occurrence,

it was not unusual for Respondent and Ms. Tyree, as paired

teachers, to watch one anotherÓs classes while the other was out

for short periods. In this case, Respondent Ós class was covered

while she walked J.S. to the office.

27. R espondent took J.S. by the hand and tucked his arm

inside her arm. Although J.S. did not want to go to the office,

his resistance was described by Ms. Tyree as Ðverbal like ÒI

don't want to go, I don't want to go.Ó But there wasn't a,

like, a tug of war going on there.Ñ

28. Respondent indicated that she took J.S. by the hand in

order to keep him safe. Given J.S.Ós actions of physically

assaulting a fellow student, followed by continued ph ysical

agitation at the back of the room, RespondentÓs concern for

safety, not only for J.S., but for the other students in her

charge, was warranted.

29. The walk to the office was captured by the schoolÓs

video system. The video covered the time fro m 8:33:00 to

8:33:58. Respondent and J.S. are clearly visible in the video

for approximately 30 seconds, from frame 08:33:04 to frame

08:33:32.

30. The video is somewhat grainy, and certain details are

not readily observable. However, the video is cons istent with

RespondentÓs statement that she was holding J.S. by the hand.

Thus, the preponderance of the evidence supports that Respondent

was holding J.S. by the hand as she walked with him to the

office and not by the Ðwrist area,Ñ as surmised by Ms. Jo hnson.

31. At frames 08:33:12 and 08:33:13, J.S. appears to

briefly resist RespondentÓs efforts to take him to the office by

trying to remove his hand from RespondentÓs hand as they walked

side - by - side . Despite his resistance, Respondent was not

Ðpull ing/draggingÑ J.S. during those frames.

32. At frames 08:33:18 and 08:33:19, J.S. appears to

briefly pull away from Respondent. The action was that of J.S.,

not of Respondent. Respondent did not release J.S., but neither

did she pull or drag J.S.

3 3. The action at frames 08:33:18 and 08:33:19 is entirely

consistent with that described by Ms. Kasten when giving the

account of her earlier walk to the office with J.S. -- which did

not involve a CPI hold -- when J.S. Ðwas pulling a little bitÑ

to try a nd get away.

34. Despite J.S.Ós efforts to pull away in both instances,

neither Respondent nor Ms. Kasten w as Ðpulling/draggingÑ J.S.

during their walks to the office.

35. For the remainder of the walk to the office,

Respondent and J.S. walked side - b y - side at a consistent pace.

The evidence suggests that J.S. was vocal in his reluctance to

be taken to the office, consistent with the description of his

verbal resistance when being taken from the classroom as

described by Ms. Tyree. The verbal resista nce apparently

continued, as evidenced by the reaction of the boy using the

walker , who comes into the picture at frame 08:33:22. However,

J.S.Ós verbal protestations did not involve pulling or dragging

and do not form the basis of a violation of the Code of Ethics,

the Principles of Professional Conduct, or the School Board

Staff Handbook.

36. RespondentÓs actions, though firm, did not appear to

be aggressive. They were consistent with the description

offered by Ms. Tyree, who testified that, as to the RespondentÓs

walk through her classroom, Ðthere wasn't an altercation of,

like, dragging or, you know -- it wasn't -- she was walking, he

was walking. But he wasn't happy, you could tell that he didn't

want to.Ñ

37. As Respondent entered the office w ith J.S.,

Ms. Kasten, the elementary assistant, was in the office, though

on the other side of the office.

38. Respondent approached the office with J.S. The door

to the office opens out. It occasionally slams, and Ms. Kasten

has seen it slam on stud ents. In order to ensure J.S.Ós safety,

Respondent placed both of her hands on his arms to move him

through the door and into the office.

39. Respondent yelled for Ms. Kasten to Ðtake him.Ñ

Ms. Kasten observed that Respondent was trying to get J.S. i nto

the doorway to someone who could help. Although RespondentÓs

calls for Ms. Kasten to take J.S. were loud, her tone of voice

was not pled as a basis for RespondentÓs termination.

40. Upon their entry into the office, Ms. Kasten went over

to Responden t and J.S. J.S. stopped resisting once he saw

Ms. Kasten. There was no evidence that J.S. was physically

harmed in any way, i.e. , there were no bruises, scratches, or

marks of any kind.

41. Respondent indicated to Ms. Kasten that J.S. had come

to cla ss very angry and was physically fighting with his female

cousin. Ms. KastenÓs contemporaneous statement of the incident

indicated that J.S. was Ðvery upset that he had a fight with his

sister.Ñ 3/ There was no suggestion that J.S. was upset about his

wal k to the office with Respondent.

4 2 . Ms. Kasten took J.S. off to the side and talked with

him. After J.S. calmed down, Ms. Kasten advised Respondent that

she would handle the situation from there, and Respondent left

the office. J.S. was ultimately ke pt in the in - school

suspension room for an hour or two.

4 3 . Ms. Kasten reported the incident to Ms. Johnson, who

was not in her office or out front and did not witness the

event.

4 4 . Shortly thereafter, in a conversation regarding other

matters, Ms. Johnson reported to Ms. Martin at the District

office that Respondent Ðbrought a student in yelling and

dragging.Ñ Ms. Johnson was instructed to immediately remove

Respondent from student contact. Ms. Johnson called to

RespondentÓs classroom and left a m essage with Respondent that

she needed to speak with her.

4 5 . The following day, a meeting was convened to discuss

the incident. Present at the meeting were Ms. Johnson,

Respondent, and RespondentÓs union representative. The

confidential secretary to the school principal, Mr. Deen, was

also in attendance to take minutes of the meeting.

4 6 . During her February 5, 2015 , interview regarding the

incident, Respondent indicated that ÐI was keeping him safe.

I was holding his hand at first and he was oka y. Then he

started pulling away from me and I wanted to make sure he didn't

hurt himself.Ñ Her statement is consistent with the video.

4 7 . During the meeting, Respondent remained adamant that

she had called Ms. Kasten and received the instruction to br ing

J.S. to the office .

4 8 . In conjunction with the investigation of the incident

by Petitioner, Ms. Johnson reported the incident to the

Department of Children and Families. The School Board received

nothing from the Department of Children and Famili es to suggest

that it found wrongdoing on the part of Respondent.

4 9 . Ms. Johnson believed, based on the information

conveyed to her, that there was no reason for Respondent to

remove the disruptive student from the classroom and that such

action did not follow the protocol for the school for the

removal of an unruly student. The alleged breach of protocol

involved in taking the child to the office was not pled as a

basis for RespondentÓs termination.

50 . On February 18, 2015, Respondent was advised of the

opportunity for a pre - determination meeting to be held the

following week. Respondent took advantage of the opportunity.

5 1 . The pre - determination meeting was held on February 25,

2015. In attendance were Respondent, Ms. Martin, labor counsel

Tom Gonzale s , Ms. Johnson, and Joann Hartage, who appeared to be

representing Respondent. Ms. MartinÓs secretary, Sherrie Kudla,

was also in attendance to take minutes of the meeting.

5 2 . During the pre - determination meeting, Respondent gave

her account of the incident and was questioned, primarily by

Ms. Martin. In addition to questions regarding the walk to the

office, Ms. Martin asked about interviews of RespondentÓs

students undertaken by Ms. Johnson , which Ms. Martin found to be

Ðvery concerning.Ñ Among the issues raised by Ms. Martin was

Ðtheir perception [] that you yell and get aggravated with

students and that youÓre mean to [J.S.]. Ñ Although Respondent

stated that she had read the statements, she was not involved in

the interviews, and had no opportunity to ascertain the accuracy

of the statements. More to the point, whether Respondent yelled

or was a mean teacher was not pled as a basis for RespondentÓs

termination.

5 3 . At the conclusion of the pre - determination meeting,

Ms. Martin conferr ed with the school superintendent, and the

decision was made to recommend to the School Board that

Respondent be terminated from employment.

5 4 . By letter dated March 9, 2015, Respondent was advised

that , as a result of her Ðpulling/dragging a student to the

front office,Ñ the District determined that she had violated

rule s 6A - 10.080(2) and (3) , rules 6A - 10.81(3)(a) and (3)(e), and

the School Board Policy /Staff Handbook ; that she was suspended

with pay ; and that she had the right to appeal the

recommend ation of termination.

5 5 . On March 23, 2015, Respondent appealed the

recommendation of termination.

5 6 . By letter dated March 24, 2015, Respondent was

notified that the recommendation to the School Board would be

modified to one of suspension without pay, effective April 22,

2015, and referral of her appeal to the Division of

Administrative Hearings.

5 7 . At the April 21, 2015 , meeting of the School Board,

the School Board authorized that this case be referred to the

Division of Administrative Heari ngs, whereupon this case ensued.

Ultimate Findings of Fact

5 8 . Based upon the facts as set forth herein, Petitioner

failed to prove, by a preponderance of the evidence, that

Respondent engaged in an incident of Ðpulling/dragging a student

to the front of fice.Ñ

5 9 . The preponderance of the evidence supports a finding

that Respondent walked J. S. to the office and, despite J.S .Ós

verbal protestations and brief efforts to resist, did so in a

safe and effective manner. Any ÐpullingÑ was brief and on the

par t of J. S ., not on the part of Respondent. There was no

Ðdragging.Ñ

60 . The preponderance of the evidence demonstrates that a

teacherÓs act of walking an unruly or disruptive student to the

office is not, in and of itself, a violation of any applicable

p rocedure or standard and has not been determined to be so in

the past.

6 1 . The preponderance of the evidence demonstrates that

there is nothing inherently inappropriate or improper with a

teacher taking a student by the hand and walking with the

student.

6 2 . Issues of whether Respondent received telephonic

approval to take J.S. to the office, should have left Ms. Tyree

to watch her class, spoke to Ms. Kasten in a loud voice, or was

loud or mean with her students were not pled as bases for

RespondentÓs t ermination, and , thus , cannot form the basis for

any disciplinary sanction.

CONCLUSIONS OF LAW

A. Jurisdiction

6 3 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to sections 120.569 and 120.57(1),

Florida Statutes (2015) .

B. Standards

6 4 . Section 1012.22(1), Florida Statutes, provides, in

part, that a district school board shall Ð[d]esignate positions

to be filled, prescribe qualifications for those positions, a nd

provide for the appointment, compensation, promotion,

suspension, and dismissal of employees . . . , subject to the

requirements of [chapter 1012].Ñ

6 5 . Respondent is an employee of Petitioner pursuant to

the authority of section 1012.33.

6 6 . Teache rs are held to a higher moral standard than

others in the community because they are leaders and role

models. See Adams v. State ProfÓl Practices Council , 406 So. 2d

1170, 1172 (Fla. 1st DCA 1981).

6 7 . Section 1012.33(1)(a) provides that a teacher's

con tract Ðshall contain provisions for dismissal during the term

of the contract for just cause,Ñ which includes misconduct in

office as defined by rule of the State Board of Education.

6 8 . Florida Administrative Code Rule 6A - 5.056 establishes

the criteria for suspension and dismissal of school personnel.

Subsection (2) of the rule provides that:

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 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 studentÓs

learning environment; or

(e) Behavior that reduces the teacherÓs

ability or his or her colleagueÓs ability

to effectively perform duties.

6 9 . Rule 6A - 10.080 , entitled Code of Ethics of the

Education Profession in Florida, provides, in pertinent part,

that:

(2) The educatorÓs primary professional

concern will always be for the student and

for the development of the studentÓs

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and integr ity.

(3) Aware of the importance of maintaining

the respect and confidence of oneÓs

colleagues, of students, of parents, and of

other members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

70 . Rule 6A - 10.081, entitled Principles of Professional

Conduct for the Education Profession in Florida, provides, in

pertinent part, that:

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

(2) Violation of any of these principles

shall subject the individual to revocation

or suspension of the individual educatorÓs

certificate, or the other penalties as

provided by law.

(3) Obligation to the student requires that

the individual:

(a) Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the studentÓs mental

and/or physical health and/or safety.

* * *

(e) Shall not intentionally expose a

student to unnecessary embarrassment or

dispa ragement.

7 1 . School Board Policy 6.301 requires that PetitionerÓs

employees:

[F] amiliarize themselves with the ÐCode of

Ethics of the Education Profession in

FloridaÑ and the ÐPrinciples of Professional

Conduct for the Education Profession in

FloridaÑ, located in the State Board of

Education Rules as well as the code of

Ethics set forth in chapter 112 of the

Florida Statutes. All employees shall abide

by these provisions at all times, and shall

be held to them in all matters related to

their employment with the Hernando County

School Board.

7 2 . Sections of t he 2014 - 2015 School Board Staff Handbook

entitled E thics and P rofessional C onduct , and P rofessional

P ractices and E thics , likewise require adherence to School Board

Policy 6.301 and the state rule s referenced therein.

C. The Burden and Standard of Proof

7 3 . Petitioner seeks to terminate Respondent's employment,

which does not involve the loss of a license or certification.

Thus, Petitioner has the burden of proving the allegations in

its notice of recommendation of termination by a preponderance

of the evidence. Cropsey v. Sch. Bd. of Manatee Cnty. ,

19 So. 3d 351, 355 (Fla. 2d DCA 2009); Cisneros v. Sch. Bd. of

Dade Cnty. , 990 So. 2d 1179, 1183 (Fla. 3d DCA 2008); McNeill v.

Pinellas Cnty. Sch. Bd. , 678 So. 2d 476 (Fla. 2d DCA 1996);

Allen v. Sch. Bd. of Dade Cnty. , 571 So. 2d 568, 569 (Fla. 3d

DCA 1990); Dileo v. Sch. Bd. of Dade Cnty. , 569 So. 2d 883 (Fla.

3d DCA 1990).

7 4 . The preponderance of the evidence standard Ðis defined

as Òthe great er weight of the evidence,Ó Black's Law Dictionary

1201 (7th ed. 1999), or evidence that Òmore likely than notÓ

tends to prove a certain proposition.Ñ Gross v. Lyons ,

763 So. 2d 276, 289 n.1 (Fla. 2000). See also Haines v. DepÓt

of Child. & Fams. , 983 So . 2d 602, 606 (Fla. 5th DCA 2008).

7 5 . The allegations of fact set forth in the charging

document are the facts upon which this proceeding is predicated.

Once the School Board has delineated the offenses alleged to

justify termination in its notice of r ecommendation of

termination, those are the only grounds upon which dismissal may

be predicated. Trevisani v. DepÓt of Health , 908 So. 2d 1108,

1109 (Fla. 1st DCA 2005). See also Klein v. Dep't of Bus. &

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

Cottrill v. DepÓt of Ins. , 685 So. 2d 1371, 1372 (Fla. 1st DCA

1996). Due process prohibits the School Board from disciplining

a teacher based on matters not specifically alleged in the

notice of recommendation of termination. See Pilla v. Sch. B d.

of Dade Cnty. , 655 So. 2d 1312, 1314 (Fla. 3d DCA 1995); Texton

v. Hancock , 359 So. 2d 895, 897 n.2 (Fla. 1st DCA 1978); see

also Sternberg v. Dep't of Prof'l Reg. , 465 So. 2d 1324, 1325

(Fla. 1st DCA 1985) ("For the hearing officer and the Board to

hav e then found Dr. Sternberg guilty of an offense with which he

was not charged was to deny him due process.").

7 6 . The notice of recommendation of termination alleged

that Respondent engaged in an incident of Ðpulling/dragging a

student to the front off ice.Ñ Thus, the scope of this

proceeding is properly restricted to those matters as framed by

Petitioner. M.H. v. DepÓt of Child. & Fam. Servs. , 977 So. 2d

755, 763 (Fla. 2d DCA 2008).

D. Application of the Standards to the Facts

7 7 . Petitioner failed to prove, by a preponderance of the

evidence, that Respondent engaged in Ðpulling/dragging a student

to the front office.Ñ Rather, the preponderance of the evidence

demonstrated that , after J.S. physically struck another student

and thereafter continued to act in an agitated and disruptive

manner, Respondent took J.S. to the office in a manner designed

to ensure the safety of the student, and that did not require

specialized training. The preponderance of the evidence further

demonstrated that the act of escorting students to the office,

while not common, has been performed by other teachers and that

the act of doing so has not heretofore been considered to be a

violation of any applicable standard.

7 8 . Petitioner cited to a number of cases in which te acher

discipline was upheld, arguing that those cases involved facts

comparable to those in this case, thus meriting a comparable

outcome. The undersigned has reviewed each of the orders

entered in those cases and find s the facts proven in those cases

did not approach the conduct alleged -- much less proven --

against Respondent. See Miami - Dade Cnty. Sch. Bd. v. Eaddy ,

Case No. 14 - 3006TTS (Fla. DOAH Jan. 15, 2015; Miami - Dade Cnty.

Sch. Bd. Feb. 27, 2015) (teacher grabbing a student forcefully

by the arm a nd hitting him -- Ðthree pow - powsÑ -- on his

shoulder with a slapping sound); Duval Cnty. Sch. Bd. v. Hunter ,

Case No. 12 - 2080TTS (Fla. DOAH Aug. 14, 2012; Duval Cnty. Sch.

Bd. Nov. 15, 2012) (teacher kicking a student into a wall, then

picking him up off the floor by his shirt or shoulders, lifting

him completely off of the floor, shaking him, and slamming his

back against the wall with the studentÓs head hitting the wall

and his face held above the teacherÓs head); Lee Cnty. Sch. Bd.

v. Cofield , Case No. 10 - 1654TTS (Fla. DOAH Sept. 24, 2010; Lee

Cnty. Sch. Bd. Nov. 5, 2010) (male teacher placing his hands on

a female middle school studentÓs shoulders to prevent her entry

into his classroom); Miami - Dade Cnty. Sch. Bd. v. Wagensommer ,

Case No. 14 - 3006TTS (Fl a. DOAH Dec. 16, 2008; Miami - Dade Cnty.

Sch. Bd. Jan. 27, 2009) (teacher grabbing a student by the hair

and pulling him by the arm, hurting him in the process; grabbing

other students by their arms to control their behavior; making

threats to throw student s out of the window if they did not

behave; and forcing students to hold heavy, book - filled book

bags on top of their heads for an extended period); Miami - Dade

Cnty. Sch. Bd. v. Wojcicki , Case No. 01 - 4247TTS (Fla. DOAH

Aug. 14, 2002; Miami - Dade Cnty. Sch. Bd. Sept. 16, 2002)

(teacher reaching out and giving a studentÓs arm a shake in

order to get the studentÓs attention; scuffling with a student,

grabbing and pulling the studentÓs shirt, and bumping the

student; and placing his hands on a studentÓs shoulder s and

giving him Ða little push,Ñ causing the student to stumble

backwards).

7 9 . Petitioner cites to Polk Cnty. Sch. Bd. v. Morales ,

Case No. 13 - 3322TTS (Fla. DOAH Jan. 17, 2014; Polk Cnty. Sch.

Bd. ___________) , as being Ðparticularly instructive.Ñ In that

case, the teacher physically dragged an unresponsive student who

had Ðgone limpÑ along the ground by his arm, leaving the

studentÓs shirt scuffed and dirty and the student distraught.

The suggestion that the conduct described in Morales even

approac hes that of Respondent in this case is rejected.

80 . The act s warranting discipline in the cases cited by

Petitioner as persuasive authority, including Morales , are in no

way comparable to the act s at issue in this proceeding.

8 1 . The evidence prod uced at the hearing does not

constitute just cause to terminate the employment of Respondent

for misconduct in office.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner, Hernando County School

Board, enter a final order:

(a) dismissing the March 9, 2015, notice of recommendation

of termination;

(b) reinstating Respondent to a position equivalent to

that previously held with the Hernando County School Board; and

(c) to the extent there is a statute, rule, employment

contract, or collective bargaining agreement that authorizes back

pay as a remedy for RespondentÓs wrongful termination/suspension

without pay , Respondent should be awarded full back pay and

benefits. See Sch. Bd. of Seminole Cnty. v. Morgan , 582 So. 2d

787, 788 (Fla. 5th DCA 1991); Brooks v. Sch. Bd. of Brevard

Cnty. , 419 So. 2d 659, 661 (Fla. 5th DCA 1982).

DONE AND ENTERED this 25th day of August , 2015 , in

Tallahassee, Leon County, Florida.

S

E. GARY EARLY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division o f Administrative Hearings

this 25th day of August , 2015 .

ENDNOTE S

1/ On direct examination, Ms. Kasten described the incident as

follows:

A : We weren't in a restraint at that point.

I think I was -- I did take him by the hand.

Q : Okay. And when yo u say "take him by the

hand," could you describe that? By that I

mean what force?

A : Like by the hand.

Q : Were you holding hands --

A : Yeah.

Q : -- with the idea of keeping him from

getting away from you?

A : Yeah.

Q : Okay. Was he trying to get away from

you?

A : He was pulling a little bit, yeah.

Q : All right.

At the conclusion of Ms. KastenÓs examination, the undersigned

engaged in the following question and answer with Ms. Kasten:

THE COURT: And you said you left -- you

walked out with him, took him by the hand.

Was that -- when you took him by the hand,

to take him -- and you took him back to the

office to ISS?

THE WITNESS: Yes.

THE COURT: Okay. Do you consider that act

to have been a CPI hold --

THE WITNESS: No.

THE COURT: -- when you took him to the

office?

THE WITNESS: No.

At the conclusion of that series of questions, an opportunity to

follow up was provided, which elicited the following:

MR. GONZALEZ: When you were holding him by

the hand on that occasion, when you to ok him

out of the classroom, did you have to exert

any force to prevent him from pulling away?

A : He tried to pull away, but I think I

might have even let him go after he got out

of the classroom. And then he walked with

me the rest of the way.

* * *

BY MR. HERDMAN: When he pulled away, did

you exert some fair level of force to keep

holding his hand?

A : I didn't -- no, I let go.

Ms. Kasten made no mention of having simply Ðlet goÑ of J.S., a

disruptive and resistant child, until essentially promp ted by

counsel, with absolutely no suggestion previously that she had

done anything other than take J.S. by the hand and walk him to

the office. That she would take J.S. by the hand Ðwith the idea

of keeping him from getting awayÑ and then just Ðlet goÑ a t the

first sign of resistance is simply not credible. Regardless,

the testimony of Ms. Kasten provides substantial support for the

finding that holding a studentÓs hand while walking with him to

the office is not a CPI - required act, nor is it inappropria te

student contact.

2/ Mr. Leftwich testified that in addition to RespondentÓs

extension, he printed call logs for Ms. TyreeÓs extension and

Ms. KastenÓs extension. Since Respondent shared an office with

Ms. Tyree, it would have more effectively c losed the circle if

Ms. TyreeÓs records had been produced, thereby precluding a

suggestion that Respondent may, in haste, have simply used the

other telephone in the office. In that regard, Mr. Leftwich,

when he found that only the single page of Responde ntÓs call log

had been offered, stated ÐI'm sorry, sir, I expected more. I

misspoke. I expected more.Ñ However, no objection as to a lack

of completeness was made, and no inference that Respondent may

have called from another telephone in the office sha red with

Ms. Tyree can be drawn from the document received in evidence.

3/ Whether J.S.Ós act of physically striking a fellow student

was directed towards his female cousin, his sister, or some

unrelated student, is of no relevance.

COPIES FURNISHED:

Pam Stewart, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 We st Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Dr. Lori Romano, Superintendent

Hernando County School Board

919 North Broad Street

Brooksville, Florida 34601 - 2397

(eServed)

Mark S. Herdman, Esquire

Herdman and Sakellarides, P.A.

Suite 110

2 9605 U.S. Highway 19 North

Clearwater, Florida 33761 - 1538

(eServed)

Thomas Martin Gonzalez, Esquire

Thompson, Sizemore, Gonzalez

and Hearing, P.A.

Suite 1600

201 North Franklin Street

Tampa, Florida 33602 - 5110

(eServed)

NOTICE OF RIGHT TO SUBMIT EX CEPTIONS

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.