15-002800TTS Miami-Dade County School Board vs. Richter Flambert Status: Closed Recommended Order on Friday, December 11, 2015.

Summary: Middle school teacher violated applicable laws, rules and School Board policies when instigating an argument with a student, threatening him with a "beat down," and forcefully shoving the student. Recommend 30-day suspension without pay.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 15 - 2800TTS

RICHTER FLAMBERT,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case came before Admini strative Law Judge Mary Li

Creasy for final hearing by webcast on September 17 , 2015, with

sites in Miami and Tallahassee, Florida.

APPEARANCES

For Petitioner: Christopher J. La Piano, Esquire

Miami - Dade County School Board

Suite 430

1450 Northeast Second Avenue

Miami, Florida 33132

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

Suite 110

29605 U.S. Highway 19 North

Clearwater, Florida 33761

STATEMENT OF THE ISSUE

Whether just cause exists for Petitioner to suspend

Respondent, a teacher, for 3 0 days without pay for pushing a

student.

PRELIMINARY STATEMENT

On May 13 , 2015, at its scheduled meeting, Petitioner,

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

suspend Respondent, Richter Flambert (ÐRespondentÑ ) , from his

teaching position at North Dade Middle School (NDM) for 3 0 days

without pay. Respondent timely requested an administr ative

hearing. T he School Board referred the matter to the Division of

Administrative Hearings ( ÐDOAHÑ ) on May 19, 2015, to assign an

Administrative Law Judge to conduct the final hearing. The final

hearing initially was set for July 15, 2015 . Petitione r filed an

U nopposed Motion for Continuance and Reschedule F inal Hearing

which was granted. The matter was reset for hearing on

September 1 7, 2015.

The School Board charged Respondent with misconduct in

office for instigating a verbal altercation with a student and

pushing that student . At the final hearing, the School Board

presented the testimony of the following: Natasha Green

(ÐGreenÑ) , substitute teacher at NDM; D.H., former NDM student;

and N.M., former NDM student. School Board Exhibits 1 throug h 8

and pages 41, 42, 43, and 45 of Exhibit 9 were received into

evidence.

Respondent testified on his own behalf and offered no

additional witnesses or exhibits.

The one - volume final hearing Tr a nscript was filed on

November 10 , 2015. The parties timely f iled proposed recommended

orders, which were given consideration in the preparation 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.

FINDING S OF F ACT

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. At all times material to this case, Respondent was

employed by the School Board a s a n eighth - grade teacher at N DM , a

public school in Miami - Dade County, Florida. Respondent has

taught for the School Board for 15 years without receipt of any

prior discipline.

3. At all times material to this case, RespondentÓs

employment with the Scho ol Board was governed by Florida law, the

School BoardÓs policies, and the collective bargaining agreement

between the School Board and the United Teachers of Dade.

4. The proposed discipline is based upon conduct occurring

on Thursday, March 4, 2014. On that day, 14 - year - old

eighth - grade student, D.H., entered Respondent's classroom

approximately ten minutes late. Respondent told D.H., ÐYou are

going to jail.Ñ When D.H . asked why and said he had done nothing

wrong, Respondent did not answer and instru cted D.H. to

immediately leave the classroom. This interaction was observed

by other students in the classroom. D. H. exited to the hallway

outside of Respondent's class.

5. At or about this same time, substitute teacher Green was

walking several student s who had been disruptive to other

classrooms. Green took a female student to Respondent's class.

Green saw D.H. and told him to go into the classroom. Green

opened Respondent's classroom door and asked if she could leave

the female student with Respond ent and he agreed.

6. While Green and Respondent were talking, D.H. attempted

to re - enter the classroom as directed by Green. Respondent stood

in front of D.H . and told him he was not allowed to enter.

D.H. asked why and said he was going to enter. Re spondent

replied, Ð You'd have to go through me first . I wanna see that.Ñ

D.H. repl i ed , Ð Man, I ain't stud ying you, I don't even see you.Ñ

Respondent and D.H. then got in a heated verbal exchange.

7. Green tried unsuccessfully to have Respondent calm do wn

and go back in the classroom. Respondent taunted D.H. by saying

he was waiting for D.H. to throw the first punch and that he

would give D.H. a Ðbeat down.Ñ Re spondent escalated the

situation by call ing D.H. ÐweakÑ and saying Ð You have no power.

That' s why you always g et beat up.Ñ

8. D.H. was visibly upset and Green kept him separated from

Respondent. Respondent went back into the classroom and closed

the door , bu t continued making comments, gestures , and laughing

at D.H. in front of his classmates. D.H. remained in the hall

yelling.

9. Respondent opened the door again and said if D.H. put

his hands on him, he would give him a beat down. D.H. moved from

behind Green , towards Respondent , and got a few inches from him

and said, Ð I'm right here. What are you going to do? Ñ D.H. did

not touch Respondent. Respondent hit D.H. hard with two open

hands to D.H.'s chest causing D.H. to stumble several steps and

fall into Green. At the time of this incident, Respondent

weighed 220 pounds. D.H. was 14 and w eighed approximately 140

pounds.

10. Green told another student to call security and then

convinced Respondent to go back in his classroom. Green took

D.H. to her classroom. D.H. was not physically injured , but was

embarrassed .

11. As a result of the i nvestigation, Respondent was

suspended without pay for a period of 30 days for misconduct in

office , in violation of State Board of Education and School Board

rules .

CONCLUSIONS OF LAW

12 . DOAH has j urisdiction over the parties and the subject

matter of these proceedings pursuant to sections 120.569 and

120.57(1), Florida Statutes (2015) .

1 3. Because the School Board, acting through the

superintendent, seeks to terminate Respondent's employment, which

does not involve the loss of a license or certificati on, the

School Board has the burden of proving the allegations in its

Amended Notice of Specific Charges by a preponderance of the

evidence, as opposed to the more stringent standard of clear and

convincing evidence. See 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).

1 4. Section 1012.33(1)(a), Florida Statutes, includes the

following definiti on of just cause to terminate a teacher's

professional services contract:

Just cause includes, but is not limited to,

the following instances, as defined by rule

of the State Board of Education: immorality,

misconduct in office or being convicted or

foun d guilty of, or entering a plea of guilty

to, regardless of adjudication of guilt, any

crime involving moral turpitude.

1 5. The Amended Notice of Specific Charges alleges the

following: Respondent committed misconduct in office in

violation of Florida A dministrative Code Rule 6A - 5.056(2); a

violation of School Board Policy 3210, the Standards of Ethical

Conduct; and a violation of School Board Policy 3210.01, Code of

Ethics .

1 6. 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); Langston v. Jamerson , 653 So. 2d

489, 491 (Fla. 1st D CA 1995).

1 7. 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.

1 8. Consistent with its rulemaking autho rity, the State

Board of Education has defined Ð mis conduct in officeÑ in

rule 6A - 5.056(2), which reads in pertinent part as follows:

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

of the following:

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

Education P rofession 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) B ehavior 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.

Code of Ethics and Principles of Professional Conduct

1 9. Florida Administrati ve Code Rule 6B - 1.001, renumbered

without change as rule 6A - 10.080, Code of Ethics, 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 democra tic

citizenship. Essential to the achievement of

these standards are 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, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

2 0. Rule 6B - 1.006, renumbered without change as rule

6A - 10.081, sets forth the Principles of Professional Co nduct.

The School Board alleges that Respondent violate d sub sections

(3)(a) and (e) of the rule, which read as follows:

(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 student

to unnecessary embarrassment or

disparagement.

21 . As was stated in Miami - Dade County School Board v.

Bre nes , Case No. 06 - 1758, 2007 Fla. Div. Adm. Hear. LEXIS 122 ,

*42 - 43 n.12 (Fla. DOAH Feb. 27, 2007; Miami - Dade Cnty. Sch. Bd.

Apr. 25, 2007):

Rule [6B -

violation of both the Ethics Code and the

Principles of Professional Educ ation be

shown, not merely a violation of one or the

other. The precepts set forth in the Ethics

Code, however, are so general and so

obviously aspirational as to be of little

practical use in defining normative behavior.

It is one thing to say, for exa mple, that

teachers must "strive for professional

growth." See Fla. Admin. Code R.

6B - 1.001(2). It is quite another to define

the behavior which constitutes such striving

in a way that puts teachers on notice

concerning what conduct is forbidden. The

P rinciples of Professional Conduct accomplish

the latter goal, enumerating specific "dos"

and "don'ts." Thus, it is concluded that

while any violation of one of the Principles

would also be a violation of the Code of

Ethics, the converse is not true. Put

another way, in order to punish a teacher for

misconduct in office, it is necessary but not

sufficient that a violation of a broad ideal

articulated in the Ethics Code be proved,

whereas it is both necessary and sufficient

that a violation of a specific ru le in the

Principles of Professional Conduct be proved.

It is the necessary and sufficient condition

to which the text refers.

22 . Respondent clearly did not exercise his Ðbest

professional judgmentÑ during the incident in quest ion and his

actions viola te d the Principles of Professional Conduct.

Respondent's mocking and taunting D.H. in front of his peers and

another teacher exposed D.H. to unnecessary embarrassment.

23 . Respondent failed Ð to protect the student from

conditions harmful to learning and/ or to the student's mental

and/or physical health and/or s afety.Ñ By threatening D.H. with

a Ð beat down , Ñ and forcefully shoving D.H. so that he lost his

balance, Respondent needlessly created an explosive situation

that could have resulted in serious inj ury to all invol v ed.

24. Respondent's argument , that D.H. was a volatile student

and that he was merely trying to protect himself from physical

harm, is not credible. R e sponde n t was physically much larger

than D.H. If Responde n t was concerned for his ph ysical safety ,

he should not have continued taunt ing D. H. through the window of

the classroom door , mocked him in front of his classmates, or

re - opened t he door to re - engage with D.H. Respondent did not

call for security until after he pushed D.H. Altho ugh Respondent

believed D.H. had several prior suspensions, Respondent had not

previously seen or heard of D.H. becoming physically aggressive

with any teachers.

School Board Rules

2 5 . The obligations of the teacher towards a student

contained in School B oard Policy 3210.01, Code of Ethics, mirror

the language of the Principles of Professional Conduct for the

Education Profession in Florida, rule 6A - 10.081. For the reasons

discussed above, the School Board demonstrate d by a preponderance

of the evidence t hat Respond ent violated School Board Policies

3210 and 3210.01.

26 . While teachers are unfortunately periodically placed in

stressful and threatening situations, the credible testimony of

Green, 1/ D.H., and student witness, N.M., leads to the conclus ion

that this incident was instigated and exacerbated by the

unprofessional actions of Respondent. As such, it constitutes

misconduct in of fice and just cause for a 30 - day suspension

without pay.

27. This penalty takes into account that although

Res pondent seriously jeopardized student safety, the student was

not actually physically harmed, and accounts for Respondent's

15 - year teaching career without prior discipline for this type of

infraction.

RECOMMENDATION

Based on the foregoing Findings of Fac t and Conclusions of

Law, it is RECOMMENDED that the Miami - Dade County School Board

enter a final order finding Richter Flambert guilty of misconduct

in office, suspending his employment without pay for a period of

30 school days, and placing him on probat ion for a period of one

year.

DONE AND ENTERED this 1 1 th day of December , 2015 , in

Tallahassee, Leon County, Florida.

S

MARY LI CREASY

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 of Administrative Hearings

this 11 th day of December , 2015 .

ENDNOTE

1/ Respondent's effort to cast Gr een as a vindictive, spurned

potential paramour wa s not believable, particularly in light of

the student s' corroboration of Green's first - hand account of the

incident in question.

COPIES FURNISHED:

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

Suit e 110

29605 U.S. Highway 19 North

Clearwater, Florida 33761

(eServed)

Christopher J. La Piano, Esquire

Miami - Dade County School Board

Suite 430

1450 Northeast Second Avenue

Miami, Florida 33132

(eServed)

Alberto M. Carvalho, Superintendent

Miami - Dad e County School Board

1450 N ortheast Second Avenue, Suite 912

Miami, Florida 33132 - 1308

(eServed)

Pam Stewart, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eSer ved)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions w ithin

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.