15-006759TTS Miami-Dade County School Board vs. Vernard M. Whitley Status: Closed Recommended Order on Thursday, April 7, 2016.

Summary: Petitioner did not prove, by a preponderance of the evidence, that Respondent engaged in conduct constituting misconduct in office or gross insubordination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 15 - 6759TTS

VERNARD M. WHITLEY,

Respondent.

_______________________________/

RECOMMENDED ORDER

A hearing was conducted in this case pursuant to

sections 120.569 and 120.57(1), Florida Statutes (2015), 1/ before

Cathy M. Sellers, an Administrative Law Judge ("ALJ") of the

Division of Administrative Hearings ("DOAH"), on February 19,

2016, by video te leconference at sites in Miami and Tallahassee,

Florida.

APPEARANCES

For Petitioner: Sara M. Marken, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue , Suite 430

Miami, Florida 33132

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North , Suite 110

Clearwater, Florida 33761

STATEMENT OF THE ISSUE

Whether just cause exists for Petitioner to suspend

Respondent without pay and terminate his employme nt as a school

security monitor.

PRELIMINARY STATEMENT

On November 18, 2015 , Petitioner , School Board of Miami -

Dade County ("Petitioner" or "School Board"), took action to

suspend Respondent without pay and terminate his employment as a

school security monitor . Respondent timely requested an

administrative hearing to challenge Petitioner's proposed

action, and the matter was forwarded to DOAH for assignment of

an ALJ to conduct a hearing pursuant to sections 120.569 and

120.57(1).

On J anuary 26, 2016 , Petitioner filed the Notice of

Specific Charges in this proceeding, alleging that on

May 19, 2015, Respondent had engaged in inappropriate physical

contact with a student . Petitioner charged Respondent with

having violated specified Depa rtment of Education rules and

School Board policies.

The hearing was held on February 1 9 , 201 6. Petitioner

presented the testimony of Officer Delontay Dumas; D.C.M., Jr.

(also referred to as "D.M." or "D.C.M." ) ; Tramaine Morgan;

Tangella Rhea; Mary Kate Parton; DanySu Pritchett ; and

Respondent . Petitioner's Exhibits 1 , 2, 4 through 10 , 15, 23,

and 27 were admitted into evidence without objection, and

Petitioner's Exhibit 3 was admitted into evidence over

objection. Respondent testified as part of Petitioner's case -

in - chief and did not proffer any exhibits for admission into

evidence.

The one - volume Transcript of the final hearing was filed

at DOAH on March 3, 2016, and the parties were given until

March 14, 2016, to file proposed re commended orders. B oth

proposed recommended orders were timely filed and duly

considered in preparing this Recommended Order.

FINDINGS OF FACT

I. The Parties

1. Petitioner is a duly - constituted school board

charged with operating, controlling, and supervising all

free public schools within Miami - Dade County, Florida,

pursuant to Article IX, section 4(b), Florida Constitution

and section 1001.32, Florida Statutes.

2. At all times relevant, Respondent was employed with

Petitioner pursuant to a professional services contract as a

school security monitor at J ohn F. Kennedy Middle School

("JFKMS") , a public school in Miami - Dade County, Florida.

3. Respondent has been employed with Petitioner as a

school se curity monitor at JFK MS since 2010.

4. At all times relevant, Respondent's employment was

go verned by the collective bargaining agreement between Miami -

Dade County Public Schools and the United Teachers of Dade

Contract, Petitioner's rules, and Florid a law.

II. Notice of Specific Charges

5. Petitioner's Notice of Specific Charges , which

constitutes the administrative charging document in this

proceeding , was filed on January 26, 2016. In the Notice of

Specific Charges , Petitioner alleges that Respondent picked up

J.F., a JFKMS student, and dropped him to the floor, and also

alleges that Respondent grabbed J.F. by the hood of his

sweatshirt in such a manner that J.F. complained of being unable

to breathe.

6. The Notice of Specific Charges char ges Respondent with

having committed misconduct in office , as defined in Florida

Administrative Code Rule 6A - 5.056(2), including violating

specified rules and School B oard policies incorporated therein ;

and with having committed gross insubordination , as d efined in

r ule 6A - 5.056(4).

I I I. The Evidence Adduced at Hearing

7 . The events giving rise to this proceeding occurred on

or about May 19, 2015, at JFKMS.

8. T hat day, Respondent was on duty as a school security

monitor. At the time of the incident giving rise to this

proceeding, Respondent was monitoring the "spill - out" area at

JFKMS. The spill - out area is the area outside of the cafeteria

where students cong regate after they have finished eating. 2/ It

is separated from a courtyard by a wall consisting of bars. A

gate connects the spill - out area to a courtyard. 3/

9 . Respondent saw J.F. slap a student on the head and then

initiate a slap - boxing episode with another student.

10 . Slap - boxing is a form of play - fighting i n which the

participants slap each other with open hands rather than hit

each other with fists. Al though i t is play - fighting , slap -

boxing can , and often does , escalate into real fighting if the

participants are hurt or become angry. Slap - boxing is contrary

to Petitioner's policies governing student conduct and

discipline , including the Code of Student Conduct . 4 /

1 1 . Respondent ordered J.F. and the other student to stop

slap - boxing. Thereafter, they exited the spill - out area and

went into the courtyard, where they continued to slap - box.

12 . Respondent began to close the gate separating the

courtyard from the spill - out area. T hereafter, the interaction

between Respondent and J.F. that gave rise to this proceeding

occurred.

1 3 . J.F. did not testify at the final hearing.

1 4 . To establish that Respondent engaged in the conduct

specifical ly alleged in the Notice of Specific Charges,

Petitioner presented the testimony of Officer Delontay Dumas , an

officer in Petitioner's Police Department. Dumas was assigned

to , and on duty at , JFKMS on the day of the events giving rise

to this proceeding.

1 5 . Through his school radio, Dumas heard shouting that

there was a fight going on. When he arrived at the spill - out

area, he ob served Respondent and J.F., who, at that point,

a ppeared to have been separated from each other by staff members

and students.

1 6 . Dumas did not personally see the events that gave rise

to this proceeding.

1 7 . Petitioner presented video footage recorded by two

surveillance cameras , hereafter referred to as " Camera 5 " and

" Camera 6, " located in the spill - out area. Although Dumas did

not personally witness the events , he identif ied Respondent,

J.F. , and an other person (D.M.) shown in the video footage .

Dumas also provided some narrative description of the events

depicted in the foota ge. 5/

18 . T he quality of the video footag e from both Cameras 5

and 6 generally is poor . One can reasonably assume, based on

the very small size of the images in the video footage, that t he

cameras are located considerable distance s from the specific

location within the spill - out area where the incident occurred .

As such, one is unable to clearly ÏÏ or, in some instances, at

all ÏÏ see or identify who is present and what is happening. When

the image is enlarged to "full size," the reso lution becomes

extremely poor, again making it very difficult to impossible to

clearly, if at all, see or identify who is present and what is

happening. No audio recording associated with the video footage

from either camera was provided.

1 9 . Camera 5 is a panning surveillance camera. 6 / As such,

it does not continuously monitor or depict a specific locat ion

within the spill - out area ; r ather, the footage depicts a

particular location for a brief period before the camera pans to

another location i n the spill - out area. Thus, one is not able

to see a continuous sequence of events occur ring in any given

location with in the spill - out area.

2 0 . T he only video footage from Camera 5 that is relevant

to this proceeding is that showing the gate betwee n the spill -

out area and courtyard.

2 1 . The following constitutes the pertinent timeline 7 / of

events , with a description of the events as observed by the

undersigned, at the time shown on the timestamp on the relevant

video footage from Camera 5 8 / :

13:01:44 A p erson who appears to be Respondent ( as

identified by Dumas in connection with testimony regarding

Camera 6 ) is standing at the gate between the spill - out

area and the courtyard, and closes the gate.

13:02:49 Students are at the gate, which is open .

Respondent is not at the gate .

13:03:16 Student is in the gate, which is open .

Respondent is not at the gate .

13:03 :52 A s tudent in a red shirt exits gate into

courtyard . Respondent is not at the gate.

13:04 :26 No one is at/in the gate, which is open .

13:05 :02 The g ate is open and several people are standing

near or in it. No one can be identified due to poor image

quality. The small image is dark and distant; t he "full

size" im age has such poor resolution that one is unable to

identify the persons shown in the footage.

13:0 5:04 - 13:05 :06 Respondent is identified from the

white emblem on the back of his black shirt ( as seen more

clearly in the footage from Camera 6) . He is standing in

the open gate and is facing into the courtyard. The

students near him are not and cannot be identified . It

appears that Respondent closes the gate at approximately

13:05 :06 .

13:05 :35 A person who appears to be Respondent is standing

at the gate, inside the spil l out area. The gate door is

closed. A person can be seen on the other side of the gate

door. That person cannot be definitively identified due to

the poor video quality. Two other people, who cannot be

identified, are standing inside the spill - out are a near the

Respondent.

13:06 :11 A person who appears to be Respondent is standing

at the gate, inside the spill out area. The gate is

closed. A person can be seen on the other side of the gate

door. That person may be J.F., but he or she cannot be

de finitively identified due to the poor video quality.

13:0 7:09 The gate is open and two persons are standing

near each other. The person in dark clothing appears to be

Respondent and the person in a white top appears to be J.F.

However, neither the small nor "full - size" video images are

of sufficient quality or provide sufficient resolution to

definitively discern the actions of these persons.

13:0 7:23 Respondent is standing in the open gate facing

into the courtyard, and the white emblem is visible

although not legible . The student, who appears to be J.F.,

appears to be on the other side of the gate in the

courtyard.

13:0 7:27 Three other persons, who are unidentified, are

now standing in close proximity to Respondent .

13:0 7:52 The g ate is open, Respondent and a student , who

appears to be J.F. , appear to be enga ged with each other .

The student appears to be moving toward or pushing

Respondent. Although the image resolution is too poor on

both small and " full size " to enable one to precisely see

the respective positions of the se persons, J.F.'s head does

not appear to be covered by the hood .

13:0 7:53 The p erson who appears to be J.F. is inside the

spill - out area . Respondent is in the gateway, but it is

not possible to determine whether Respondent is touching

J.F. or vice versa .

13:0 7:54 The p erson who appears to be J.F. is in the

spill - out area, and the person who appears to be Respondent

appears to be crouching next to him. However, it cannot be

determine d whether Respondent is touching J.F. or vice

versa.

The video foot age for Camera 5 ends at 13:08:12 .

2 2 . Based on the foregoing, the undersigned finds that the

video footage for Camera 5 does not definitively depict, and

therefore does not establish, that Respondent pick ed up J.F.,

dropp ed him to the floor, or grabb ed the hood of his sweatshirt

such that it caused J.F. to be unable to breathe , as is alleged

in the Notice of Specific Charges . The poor quality of the

video footage does not enable the viewer, with any reasonable

certainty, to identify persons shown at nu merous key points in

the footage or to precisely see or determine the actions in

which they are engaged. 9 / Accordingly, the undersigned finds the

video footage from Camera 5 unpersuasive to show that Respondent

engaged in the conduct alleged in the Notice of Specific

Charges.

2 3 . Camera 6 is a stationary surveillance camera located

in the spill - out area. 10/ The following constitutes the

pertinent timeline 11 / of events , with a description of the events

as observed by the undersigned, at the time shown on the

timestamp on the relevant video footage from Camera 6 1 2 / :

13:01:36 Î 13:01:45 Respondent ( who is identified by

Dumas ) appears in the video field and walks to the gate

separating the spill - out area from the courtyard. At this

point, the white emblem identifying him as a school

security monitor can be seen on the back of his shirt but

it is not legible due to the poor quality of the video

footage .

13:01:46 Î 13:02:13 Respondent is standing at the gate.

Several stude nts walk into and out of the spill - out area

through the gate.

13:01:14 Respondent walks away from the gate, to ward

another part of the spill - out area.

13:02:34 Respondent is no longer visible in the video

footage.

13:02:52 J.F. (identified by Dumas), who is wearing a

white hooded sweatshirt and khaki shorts, appears in the

video footage . He is accompanied by, and interacting with,

other students.

13:03: 19 J.F. and another student, who is wearing a red

top and khaki pants, are interacting with each other. J.F.

briefly turns around and faces the direction in which

Respondent previously walked as he left the field of view.

By 13:03:24, J.F. has turned back in the opposite direction

and walks away from the o ther student.

13:03:33 Respondent reappears on the right - hand edge of

the video footage, coming from the direction J.F. faced as

he briefly turned , before turning back around and walking

away.

13:03:48 J.F. is in close proximity to, and interacting

with, the student in the red top.

13:0 3 :50 J.F. exits the spill - out area through the gate

and goes into the courtyard. By 13:03:53, the student in

the red top also has exited the spill - out area into the

courtya rd. Respondent can be seen near the lower right -

hand corner of the video footage, facing in the direction

of J.F. and the student in the red top. By this time,

movement in the courtyard can be seen on the left - hand edge

of the video footage. R espondent begins to walk toward the

gate.

13:04:2 4 Respondent walks toward the gate between the

spill - out area and the courtyard.

13:0 4:33 R espondent stands at the gate .

13:04:35 R espondent is no longer visible at the gate; it

appears that he moved through the gate toward or into the

courtyard.

13:0 4:36 J.F. moves back into the spill - out area. He

appears to be falling backward into the spill - out area, and

in doing so, appears to fall into other students, who are

walking by . Respondent is not vi sible.

13:0 4:37 J . F . appears to regain his balance and appears to

stand upright or nearly upright . Respondent is not

visible.

13:04 :38 J.F. again a ppears to be falling backward, with

his back facing the gate. Respondent is not visible. A

person, who cannot be identified, is standing in the gate

and appears to crouch down.

13:04:38 A student wearing red enters the spill - out area

from the courtyard and partially obscures the view of J.F.

Respondent is not visible.

13:0 4:39 A perso n wearing black , who cannot be clearly

seen and cannot be identified by viewing the video footage ,

appears to be standing over J . F . , who appears to be lying

on the ground .

13:04:40 The person wearing black , who cannot be clearly

seen or identified by viewing the video footage, appears to

bend down over J.F., then stands up. It appears that J.F.

is sitting up. The view of J.F. and the person wearing

black largely is obscured by student bystanders, including

the student in the red top, who is running away from the

location of J.F. and the person wearing black.

13:04:41 Neither J.F. nor the person wearing black are

visible in the video footage.

13:05: 17 A person wearing black is standing at the gate.

The person cannot be identified by viewing the video. J.F.

is not visible.

13:05: 17 Î 13:07:00 The person wearing black is standing

at the gate. Many students walk by and stand, obscuring

the view of the gate. Students exit and enter the spill -

out area t hrough the gate. J.F. is not visible.

13:07:01 - 13:07:56 The person in black is no longer

visible at the gate. Man y students walk by and stand,

obscuring the view of the gate. Students exit and enter

the spill - out area through the gate. J.F. is not visible.

13:0 7:57 Respondent (as identified by Dumas) is seen

standing at the gate. A student wearing a light green or

blue top is standing in a position that partially obscures

the view of Respondent. J.F. is not visible.

13:0 8:10 J.F. (as identified by Dumas) is standing next to

Respondent at or in the gate.

13:08:13 J.F. moves forward from the gate into the spill -

out area and appears to be crouching or bending down.

13:0 8:14 J . F . swings around such that he is facing the

spill - out area and appears to grasp the bars that comprise

the separation wall between the spill - out area and the

cour tyard . Respondent appears to briefly place his arm on

J.F.'s torso .

13:08:15 Respondent and J.F. are seen standing next to

each other in the gate.

13:0 8:17 J . F . appears to have backed up and is holding

onto the bars . The view of J.F. is obscured by another

person wearing a white short - sleeved shirt and dark pants ,

previously identified as D.M. by Dumas , who stands next to

J.F.

Starting at 13:08:18 to the end of the video footage at

13:12:01 , the notation "[No Recorded Data]" intermittently

appears for brief intervals in the lower left corner of the

video footage. Simultaneous ly with this notation, t h e

video footage briefly freeze s before resuming , causing the

footage to appear jerky and to rapidly skip forward.

13:08:30 J. F. appears to be standing in the spill - out

area. The v iew of Respondent is almost completely obscured

by D.M.

13:0 8:3 4 J . F . is in the spill - out area standing next to

Respondent at the gate. They do not appear to be in any

physical contact with each other. The view of both J.F.

and Respondent is partially obscured by D.M.

13:0 8:35 - 13:08:49 D.M. almost completely block s the view

of Respondent and J . F .

13:08:49 Respondent and J.F. are standing in the gate.

13:08:52 J . F . begins to move side - way into the spill - out

area and appears to crouch slightly. His back is facing

the camera.

13:0 8:54 Î 13:09:00 J . F . is upright and standing in the

spill - out area next to and facing R espondent , who is

standing at the gate.

13:0 9:0 1 J . F . appears to be facing, and moving back away

from , Respondent. He is standing up and his arms are

spread away from his body.

13:09:02 J.F . is crouching forward and facing Respondent.

One arm is visibly spread away from his body.

13:09 :03 J . F . is standing upright in the spill - over area,

facing R espondent , who is standing in the gateway .

13:0 9:04 J . F . has bent over, and his sweatshirt appears to

have ridden up in the back such that you can see a bit of

his back between the bottom of the sweatshirt and the top

of his shorts. His head appears to be visible. J.F. has

substantially obscured the view of Respondent.

13:0 9:05 J.F.'s right arm is raised, and his head is

slightly lowered but still visible. J.F.'s sweatshirt is

ridden up in the back. J.F. has substantially obscured the

view of Respondent.

13:0 9:07 J . F . 's right arm is again raised and he is facing

R espondent.

13:0 9:0 8 J . F . bends over, then stands upright. Respondent

is standing in the gate and as J.F. stands up, he largely

obscures the view of Respondent.

13:0 9:10 J . F . is rising up from the bent - over position.

Respondent appears to grasp J.F. on his upper back and

under his right arm.

13:0 9:10 J . F . is bent over and R espondent 's hand appear s

to touch J.F.'s upper back.

13:0 9:11 J.F. bends over and spins around. J.F.'s head is

not visible. The sweatshirt appears to be covering his

head.

13:09 :1 2 Respondent's arm appears to circle J.F.'s waist.

J.F. twists around into an upright position . J.F.'s back

is to the camera. The sweatshirt appears to be covering

the back of his head. J.F. is grasping one of the bars

comprising the separation wall with one hand.

13:0 9:1 2 R espondent's arm appears to circle J.F.'s waist

and he slightly lifts J.F. as he attempts to move him

through the gate back into the courtyard. J . F . is grasping

the bars of the separation wall with one hand.

13:0 9:14 Î 13:0 9:1 6 J . F . pulls away from R espondent and

backs into the spill - out area . He appears to still be

wearing the sweatshirt and his head no longer appears

covered by the sweatshirt.

13:09: 17 By this poi nt, s tudents are almost completely

obscuring the view of both J . F . and R espondent.

13:09:18 T he view of Respondent and J.F. is completely

blocked by students. A white object , which cannot be

specifically identified, is briefly seen being flung.

Between 13:09:18 and 13:12:01, when the video footage ends,

students have gathered, completely obscuring the view of

Respondent and J.F.

2 4 . Although the video footage from Camera 6 appears to

sh ow that Respondent briefly touch ed J.F. on the torso and upper

back and placed his arm around J.F.'s waist, it does not show

Respondent picking up J.F., dropping him to the floor, or

grabbing the hood of his sweatshirt such that J.F. was unable to

breathe , as alleged in the Notice of Speci fic Charges. The poor

quality of the video footage ÏÏ specifically, the small size of

the footage as originally shot by the camera and its extremely

poor resolution when enlarged to "full size" ÏÏ does not enable

the viewer, with any reasonable certainty, to identify persons

shown at numerous key points in the footage or to precisely

see or determine the actions in which they are engaged.

Accordingly, the undersigned finds that the video footage from

Camera 6 does not constitute persuasive evidence that Respondent

engaged in the conduct alleged in the Notice of Specific

Charges.

2 5 . When Dumas spoke with J.F. after the incident

occurred, he took custody of J.F.'s sweatshirt , and the

sweatshirt was admitted into evidence at the final hearing .

The sweat shirt has a vertical rip approximately one - half inches

long at the front center of the neck .

2 6 . Dumas testified that J.F. told him that he (J.F.) had

ripped off his sweatshirt because Respondent had grabbed the

hood, which was choking him. 13/

2 7 . As noted above, Dumas did not witness the incident, so

he did not see J.F. rip the sweatshirt. Dumas did not see the

sweatshirt before J.F. gave it to him, and it was ripped when

Dumas received it.

2 8 . Petitioner also presented the testimony of stud ent

D.C.M., who was present in the spill - out area on the day in

question and saw the incident.

29 . D.C.M. saw J.F. slap - boxing with another student in

the courtyard. He testified that Respondent ordered J.F. and

the other student to "hurry up and get back inside" the spill -

out area. However, he also testified that Respondent blocked

the gate between the courtyard and spill - out area to prevent

J.F. and the other student from re - entering the spill - out

area 14/ ; that they tried to get ba ck through the gate; and that

the other student ultimately made it through the gate but J.F.

did not.

3 0 . D.C.M. testified : "[a]nd then I saw [Respondent] like

ÏÏ I guess he had picked [J.F.] up and put him on the ground."

3 1 . D.C.M. testified that he saw J.F. get up off of the

ground, laughing; that J.F. again tried to force his way back

through the gate; that Respondent, who was attempting to lock

the gate, blocked J.F. with his body to prevent him from coming

back through the gate; and that J.F. did finally "get his body a

little bit through."

32. D.C.M. testified that "[Respondent] has him against

like the gate ÏÏ right there, there's like metal bars, then he had

him holded [sic] , so I guess he had his ÏÏ had [J.F.] by the

ho odie of the jacket. Then I guess [J.F.], he said, 'Let me go.

I can't breathe. I can't breathe.' "

33. D.C.M. testified that at that point, J.F. became

angry, ripped off his jacket, and freed himself from

Respondent's grasp. J.F. then tried to hit R espondent. D.C.M.

testified that he restrained J.F. and at that point, another

school security monitor responded to the incident.

34. On cross - examination, D.C.M. testified that when J.F.

tried to re - enter the spill - out area , "I guess [Respondent] had

picked him up and then like put him on the ground."

35. On balance, the undersigned does not find D.C.M.'s

testimony persuasive to establish that Respondent engaged in the

conduct alleged in the Notice of Specific Charges. Although

D.C.M. was present and claimed to have seen the events, his

testimony regarding the specific conduct with which Respondent

is charged was repeatedly qualified with the prefa ce " I guess. "

As such, D.C.M.'s testimony regarding Respondent's actions and

conduct is equivocal and indefinite . D.C.M. did not state ,

unequivocally, that he saw Respondent pick J.F. up and put him

on the ground or that he saw Respondent grab the hood of J.F.'s

sweatshirt. As such, D.C.M.'s testimony does not persuasively

establish that Respondent engaged in the specific actions with

which he is charged in the Notice of Specific Charges.

36. Respondent also testified regarding the incident. He

observed J.F. and another student ( who was wearing a red shirt)

running around, slapping other students, and engag ing in slap -

boxing with each other in the spill - out area. Respondent twice

directed them to stop. They exited the spill - out area and went

into the courtyard, where they resumed slap - boxing.

37. In order t o isolate them in the courtyard to prevent

them from engaging in further disruptive behavior involving

other students in the spill - out area, Respondent walked over to

close the gate between the spill - out area and the courtyard.

Respondent testified, credibly, that he intended to separate

t hem from each other once he had isolated them in the courtyard.

38. Once Respondent began to close the gate, J.F. and the

other student ran toward the gate to try to get back inside the

spill - out area. The student wearing the red shirt got through

the gate and back into the spill - out area.

39. Respondent testified, credibly, that J.F. also

attempted to get through the gate, but ran into him and fell

down . Respondent caught J.F. under his arm, walked him back out

of the spill - out area, and closed t he gate in order to isolate

J.F. until the class bell rang. Respondent testified, credibly,

that he explained to J.F. that he was to remain in the courtyard

until the class bell rang, at which point Respondent would let

him back into the spill - out area.

40. J.F. continued to try to re - enter the spill - out area.

Respondent did not call for another security monitor to assist

him , because , in his judgment, the situation at that point was

calm and under control .

4 1 . J.F. then pulled on the gate with su fficient force

that Respondent lost his grasp on the gate, which opened. At

that point, J.F. again tried to re - enter the spill - out area.

Respondent again blocked J.F. with his body to prevent him from

re - entering the spill - out area.

4 2 . In the course of blocking J.F. from re - entering the

spill - out area, Respondent testified, credibly, that he caught

the back of J.F.'s hooded sweatshirt and tried to move him back

outside of the gate . A t that point, J.F. squeezed out of his

sweatshirt, threw it at him, and started throwing punches and

cursing at him. Respondent attempted to stop or deflect the

punches .

43. Until that point, Respondent had not tried to call for

assistance because, in his words, "it literally w ent from zero

to 60 like that."

4 4 . Respondent acknowledged that before the incident

escalated to the point that J.F. threw punches at him , he had

placed his hands on J.F. ; however, this was after J.F. had run

into him, and Respondent did so in order to guide J.F. back out

of the gate. R espondent testified that he did not recall having

otherwise placed his hands on J.F.

4 5 . Respondent also stated that he grabbed the hood of

J.F.'s sweatshirt as J.F. tried to squeeze past him back into

the spill - out area. However, he denied having pull ed the hood

of the sweatshirt with force sufficient to prevent J.F. from

going through the gate because he already had blocked J.F. with

his body.

4 6 . In response to being asked why he did no t "just let

[J.F.] through," Respondent responded that he did not allow J.F.

to re - enter the spill - out area because J.F. already had slapped

other students, was running around, and had caused a

disturbance, and that allowing him back into the spill - out area

would have "opened it up further to more disturb ance."

4 7 . The undersigned finds Respondent's account of the

events credible and persuasive. T he video footage from Camera 6

appear s to show Respondent briefly touching J.F. on his torso,

upper back, and waist ; however, it is noted that Respondent

test ified that he did " not recall " having touched J.F. other

than picking him up under the arm to guide him back out into the

courtyard. This apparent inconsistency with the video footage

from Camera 6, as observed by the undersigned, is credited to

Responden t's lack of perfect recall rather than lack of candor.

48 . Importantly, Respondent persuasively and credibly

denie d having picked J.F. up and dropping him on the ground and

grabbing him by the hood of his sweatshirt such that he could

not breathe. As described above, the video footage does not

contradict Respondent's testimony on these key points.

49 . Petitioner al so presented the testimony of Tremaine

Morgan, anothe r school security monitor at JFK MS who arrived at

the scene of the incident involving Respondent and J.F. as it

was concluding. Specifically, Morgan saw J.F. throwing punches

at Respondent and he saw a student grab and try to restrain J.F.

as he was doing so. He did not see the entire incident , so did

not see Respondent engage in the conduct alleged in the Notice

of Specific Charges .

5 0 . Morgan stated that he did not see or hear any calls

from Respon dent on his school radio, but he also acknowledged

that it was loud in the spill - out area at lunchtime, so that

such calls would not be able to be heard.

5 1 . Morgan testified regarding his understanding of the

proper procedure for handling instances of s lap - boxing between

students. According to Morgan, the students are first to be

given the directive to stop, and that if they do not respond,

the school administration should be called so, as he put, it "a

higher power will take care of it." He testified that in his

experience, that course of action has resolved the issue.

5 2 . On cross - examination, Morgan acknowledged that

separate instances of slap - boxing between students is not

necessarily identical or similar, and that in some instances,

slap - boxing can escalate into re al fighting. He testified that

for that reason, students are not allowed to slap - box at school.

5 3 . Morgan's testimony apparently was presented to

establish or demonstrate the correct way that an incident of

slap - boxing is to be ha ndled by a school security monitor.

However, Petitioner did not present any evidence showing that

Morgan possessed any greater authority, expertise, or knowledge

regarding proper procedures than did Respondent.

5 4 . Further, as a fine, but key, point ÏÏ t he alleged

conduct giving rise to this proceeding did not occur as

Respondent was breaking up a slap - boxing episode between J.F.

and the other student . The evidence shows that by the time J.F.

and Respondent had physical contact with each other, J.F. and

the other student already had ceased slap - boxing , the student in

the red top already had re - entered the spill - out area, and J.F.

was in the process of directly disobeying Respondent 's

directives to remain in the courtyard by attempting to run and

squeeze past him to re - enter the spill - out area. The persuasive

evidence establishes that J.F. , not Respondent, initiated the

physical contact between them when he ran into Respondent while

trying to run through the gate, then again made physical contact

with Respondent as he attempted to squeeze through the gate, in

direct defiance of Respondent's order to remain in the

courtyard. Only after J.F. had made physical contact with

Respondent twice, in direct disobedience of Respondent's

directives to stay out of the spill - out area and in the

courtyard, did Respondent grab J.F.'s sweatshirt by the hood.

Accordingly, Morgan's testimony as to how slap - boxing incidents

should be handled is not directly relevant to the specific

circumstances present in t his case.

5 5 . Further, under any circumstances, the persuasive

evidence establishes that Respondent did direct J.F. and the

other students to stop slap - boxing , twice , and that they

disregarded his directive s .

5 6 . Mary Kate Parton, 15/ principal at JFKMS, testified that

school security monitors should not place their hands on a

student unless the student presents a danger to himself or

others , and that whether touching of a student by a school

security monitor is inappropriate depends o n the specific

circumstances with which the school security monitor is

presented in a given situation . She concurred that students at

JFKMS are not allowed to slap - box , and she acknowledged that

whether a school security monitor 's response to slap - boxing

episodes depends on the specific circumstances and situation .

57 . Respondent previously has been disciplined for having

inappropriate physical contact with students at JFK MS .

58 . Specifically, in April 2013, Respondent was

reprimanded for touching a student on the shoulder as he took

her to the school office after she called him a racial slur. He

was directed by the then - principal of JFKMS to, among other

things, refrain from any physical touching of st udents .

H owever, he a lso was directed to follow Miami - Dade County Public

Schools Procedures for Safe Restraint when necessary , which

authorize the reasonable use of physical force when necessary

under certain circumstances, such as to quell a disturbance

threatening physical injury to others , for self - defense, or to

prevent harm or injury to the student, self, or others .

59 . In November 2013, Respondent was suspended for 12 days

for engaging in horseplay with a student that resulted in them

falling to t he ground ; a t the hearing, Respondent acknowledged

that he had been too familiar with the student and that his

conduct in that instance had been inappropriate. In addition to

the previously - issued directives, Respondent was directed to

adhere to the Standards of Ethical Conduct, School Board Policy

4210; the Code of Ethics, School Board Policy 4210; and the

Student Supervision and Welfare Policy, School Board Policy

4213. Additionally, he was directed , in pertinent part, to

refrain from inappropriate communication with students in a way

or manner such that they would perceive his position to be a

friend rather than adult and a professional; to refrain from

inappropriate physical contact in a way or manner that does not

directly relate to his job as a security monitor ; and to be a

credit to himself in his employment and in the community.

6 0 . These incidents are not probative of whether

Respondent again engaged in inappropriate touching of a student

that led to this proceeding. 16 / They are relevant only to the

issue of whether Respondent's actions at issue in this

proceeding constitute gross insubordination.

IV . Findings of Ultimate Fact

6 1 . Whether Respondent committed the offenses charged in

this proceeding 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 DCA 1995).

A. Misconduct in Office

6 2 . Having considered the evidence, the undersigned finds

that Petitioner has not established , by a preponderance of the

competent, credible, and persuasive evidence, that Respondent's

actio ns in this case constitute misconduct in office, as defined

in rule 6A - 5.056( 2), which incorporates r ule 6A - 10.080, r ule 6A -

10.081, and Standards of Ethical Conduct , School Board Policy

4210 ; the Code of Ethics , School Board Policy 4210 ; and the

Student Supervision and Welfare Policy, School Board Policy

4213.

6 3 . As discussed in greater detail above, the video camera

footage simply does not show, with any degree of clarity or

precision, that Respondent engaged in the conduct with which he

is charged in the Notice of Specific Charges ÏÏ i.e., picking up

J.F. and dropping him to the floor and grabbing him by the hood

of his sweatshirt such that he was unable to breathe. 17/

6 4 . Further, as discussed above, D.C.M.'s testimony was

equivocal regarding Respondent's specific actions, and, as such,

was not sufficiently persuasive to find that Respondent engaged

in the conduct alleged in the Notice of Specific Charges.

6 5 . As discussed above, the video footage does show , with

some reasonable certainty, so me physical contact between

Respondent and J.F. 1 8 / T he undersigned finds that this contact

constituted the use of reasonable force which was appropriate

under the circumstances, and that Respondent's actions in

attempting to physically block J.F. from re - entering the spill -

out area ( where he already had been disruptive and physica lly

engaged with other students) were consistent with the JFKMS

procedures for dealing with disruptive behavior by a student.

6 6 . S pecifically, Respondent testified, credibly, that ,

consistent with the JFKMS protocol for dealing with disruptive

student b ehavior , he direct ed J.F. and the other student to stop

slap - boxing with each other . He did so twice ; b oth times, they

disobeyed th ose directive s . Once J.F. and the other stud ent

exited into the courtyard, Respondent attempted to isolate them

in that area so they would not return to the spill - out area and

resume in behavior that was disruptive and potentially dangerous

to themselves and other students. At that point, J.F. and the

other student stopped slap - boxing and attempted to get past

Respondent, with one of them actually succeed ing . Respondent

blocked the gate with his body, consistent with the type of

reasonable force that is authorized under circumstances where

the student's behavior may result in injury to himself or

others . 1 9 /

67 . As discussed above, the evidence shows that J.F. made

the initial contact with Respondent by running into him, at

whi ch point J.F. fell to the ground. Thereafter, as Respondent

again tried to prevent him from returning into the spill - out

area ÏÏ while telling him he had to remain in the courtyard until

the class bell rang ÏÏ J.F. again attempted to squeeze past him.

At this point, Respondent was justified in holding J.F. to

prevent him from re - entering the spill - out area, where he

previously had engaged in disruptive behavior (which could have

escalated into a real fight) and had shown no inclination to

stop even afte r being directed twice to do so .

68 . As discussed above, Respondent did not attempt to call

for the assistance of another school security monitor or

administration until J.F. ripped off his sweatshirt and started

throwing punches at him, because until th at point, Respondent

considered the situation under control.

69 . Under these circumstances, the undersigned finds that

Respondent did not engage in conduct constituting misconduct in

office as defined by rule 6A - 5.056( 2 ) .

B. Gross Insubordination

7 0 . The undersigned also finds that Respondent's actions

do not constitute gross misconduct, as defined in rule 6A -

5.056(4).

7 1 . In connection with the April 2013 reprimand of

Respondent for inappropriate physical contact with a student,

the then - princip al of JFKMS issued directives that included the

following: "[r]efrain from any physical touching of students."

Another directive appeared to temper this directive by stating:

"[f]ollow MDCPS Procedures for Safe Physical Restraint when

necessary."

7 2 . In connection with the suspension of Respondent in

September 2013, for horseplay with a student, the following

additional directives were issued: "[r]efrain from

inappropriate physical contact with students in a way or in any

manner that does not directl y relate to your job as a school

security monitor."

7 3 . Here, the evidence does not show that Respondent's

actions constitute the intentional refusal to obey a direct

order, reasonable in nature, and given by and with proper

authority.

7 4 . With respect to the April 2013 directive s , to the

extent they direct Respondent, as a school security monitor, to

literally refrain from any physical contact with students, they

are directly contrary to School Board Policy 5630, titled

"Corporal Punishment and Use of Reasonable Force , " which

expressly authorizes school staff members, which includes school

security monitors, to, within the scope of their employment,

"use and apply reasonable force to quell a disturbance

threatening physical injury to others, . . . in self - defense, or

for the protection of persons and property." To the extent the

principal's April 2013 directives are contrary to this School

Board policy, they were ( and are ) unreasonable.

7 5. Respondent's actions also do not violate the

addition al directives issued in September 2013 in association

with his suspension.

76. As discussed above, Respondent's conduct under the

circumstances present in this case , where J.F. had engaged in

disruptive behavior having the potential to escalate into a

fight that could harm or injure himself or others , constituted

use of re asonable force ÏÏ which consisted of blocking J.F. as he

tried to re - enter the spill - out area after having been told he

was to remain in the courtyard until the class bell rang, and

hold ing J.F. when J.F. again disobeyed that directive and again

made physical contact with Respondent.

77. The evidence also shows that , consistent with the

September 2013 directive, Respondent followed MDCSP Procedures

for safe restraint when necessary. As discussed above,

Respondent twice told J.F. and the other student to stop slap -

boxing, and he also repeatedly told J.F. to remain in the

courtyard until the class bell rang. He gave these directives

before engaging in physical restraint of J.F. by bloc king, and

then holding, him when he disobeyed, ran into Respondent, and

ultimately, tried to punch Respondent. Further, Respondent's

actions with respect to J.F. were directly related to his job as

a school security monitor.

78 . Under these circumstances, the undersigned finds

that Respondent did not engage in gross insubordination under

rule 6A - 5.056(2).

C ONCLUSIONS OF LAW

79 . DOAH has jurisdiction over the parties to, and subject

matter of, this proceeding pursuant to se ctions 120.569 and

120.57(1), Florida Statutes.

8 0 . Section 1012.40(1)(a), Florida Statutes, defines

"educational support employee" as follows:

" Educational support employee " means any

person employed by a district school system

who is employed as a teacher assistant, an

education paraprofessional, a member of the

transportation department, a member of the

operations department, a member of the

maintenance department, a member of food

service, a secretary, or a clerical

employee, or any other person who by virtue

of his or her position of employment is not

required to be certified by the Department

of Education or district school board

pursuant to s. 1012.39 . This section does

not apply to persons employed in

confidential or management positions. This

section applies to all employees wh o are not

temporary or casual and whose duties require

20 or more hours in each normal working

week.

81 . As a school security monitor employed by Petitioner,

Respondent is an "educational support employee."

8 2 . Here, on the basis of Respondent's alleg ed conduct, 20 /

Petitioner seeks to terminate Respondent's employment as a

school security monitor for misconduct in office and gross

insubordination.

8 3 . As such, s ection 1012.40(2)(c) pertains to this

proceeding. That statute states:

In the event a d istrict school

superintendent seeks termination of an

employee, the district school board may

suspend the employee with or without pay.

The employee shall receive written notice

and shall have the opportunity to formally

appeal the termination. The appeal s process

shall be determined by the appropriate

collective bargaining process or by district

school board rule in the event there is no

collective bargaining agreement.

8 4 . Article XXI(3)(D) of the collective bargaining

agreement between Petitioner and the United Teachers of Dade

("UTD Contract") provides that termination of an educational

support employee requires a showing of "just ca use," which

expressly includes "miscondu ct in office" and "gross

insubordination" as those terms are defined by rule. 21 /

8 5 . Because Petitioner seeks to terminate Respondent's

employment, it bears the burden, by a preponderance of the

evidence, to prove the allegations set forth in its Notice of

Specific Charges. McNeill v. Pinellas Cnty. Sch. Bd. , 678 So.

2d 476, 477 (Fla. 2 d 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) .

8 6 . The "preponderance of the evidence" standard requires

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

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

Gross v. Lyons , 763 So. 2d 276, 280 n.1 (Fla. 2000).

8 7 . As discussed above, 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 3 87, 389 (Fla. 1st DCA 1995); Langston v.

Jamerson , 653 So. 2d 489, 491 (Fla. 1st DCA 1995).

88 . Rule 6A - 5.056(2) defines "misconduct in office" to

mean one of more of the following:

(a) A violation of the Code of Ethics of

the Education Profession in Fl orida 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 d isrupts the studentÓs

learning environment; or

(e) Behavior that reduces the teacherÓs

ability or his or her colleaguesÓ ability to

effectively perform duties.

89 . For the reasons discussed above, it is concluded that

Petitioner did not prove, by a preponderance of the evidence,

that Respondent engaged in conduct constituting misconduct in

office. 22 /

9 0 . Rule 6A - 5.056(4) defines "gross insubordination , " in

pertinent part, as meaning "the intention al refusal to obey a

direct order, reasonable in nature, and given by and with

property authority[.]"

9 1 . For the reasons discussed above, it is concluded that

Petitioner did not prove, by a preponderance of the evidence,

that Respondent engaged in condu ct constituting gross

insubordination.

9 2 . According ly , it is concluded that just cause does not

exist, as required by section 1012.40(2)(c), to suspend

Respondent without pay and terminate his employment.

RECOMMENDATION

Based on the foregoing Findin gs of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner, Miami - Dade County School

Board, enter a final order dismissing the Notice of Specific

Charges against Respondent, reinstating Respondent's employment

as a school security monitor, and aw arding Respondent back pay

for the period of his suspension without pay.

DONE AND ENTERED this 7 th day of April , 201 6 , in

Tallahassee, Leon County, Florida.

S

CATHY M. SELLERS

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 7 th day of April , 2015.

ENDNOTES

1/ All statutory references are to the 2015 version of Florida

Statutes.

2/ The incident occurred shortly after 1:00 p.m., according to

the digital timeline shown in the surveillance camera video -

recordings that were admitted into evidence.

3/ Other buildi ngs border the courtyard, and while there is

access from the courtyard to the parking lot, where students

presumably could leave the school campus, those areas are

monitored to ensure that students do not leave the campus.

4/ See Petitioner's Policy 550 0, which has been formally adopted

and incorporates by reference the Code of Student Conduct

Secondary. Petitioner has published both of these documents.

5/ The video footage was admitted into evidence. This is a de

novo proceeding in which the undersigned is obligated to

determine for herself what the video footage depicts rather than

relying on the witness's narrative description of the events

depicted.

6/ T he video footage from Camera 5 contains, on the top left

corner of the footage, the notation "[5] rear aud. , " which

presumably identifies that camera's location.

7/ The times set forth on the timeline are derived from the

timestamp shown in the lower lef t corner of the video footage

for Camera 5.

8/ The undersigned viewed the video footage from Camera 5

numerous times, both at regular speed and frame - by - frame, and

both at the "original" size as recorded by the camera and at

"full size."

9/ For examp le, in response to a question asked on direct

examination, Officer Dumas identified a "silhouette" as

Respondent. However, the video's poor quality is such that the

"silhouette" is barely (if at all) visible, and its identity

cannot be discerned by viewin g the video; this "identification"

based on an assumption of the identity of the person is not

persuasive.

10/ The video footage from Camera 6 contains, on the top left

corner of the footage, the notation "[6] boys loc. , " which

presumably identifies th at camera's location.

11/ The times set forth on the timeline are derived from the

timestamp shown in the lower left corner of the video footage

for Camera 6.

12/ The undersigned viewed the video footage from Camera 6

numerous times, both at regular sp eed and frame - by - frame, and

both at the "original" size as recorded by the camera, and at

"full size."

13/ This testimony is hearsay and no predicate was established

for its admission under the hearsay exceptions codified in

sections 90.803 or 90.804, Florida Statutes. In administrative

proceedings conducted pursuant to section 120.57(1), hearsay

evidence is admissible and may be used to supplement or explain

other evidence, but is not sufficient in itself to constitute

the sole evidentiary basis for a finding of fact unless it is

admissible under an exception to the hearsay rule. See

§§ 120.569(2)(g) and 120.57(1)(c), Fla. Stat. (2015). See also

Fla. Admin. Code R. 28 - 106. 213(3).

14/ The undersigned notes that this testimony seems

inconsistent, in that it would be nonsensical for Respondent to

order J.F. and the other student back into the spill - out area

from the courtyard, then attempt to block them from entering the

spill - out area through the gate. Further, this testimony is

contradicted by Respondent's credible testimony that he

attempted to isolate J.F. and the other student in the courtyard

to prevent them from causing further disruption in the spill - out

area.

15 / Parton did not witness the incident between Respondent and

J.F.

16/ See § 120.569(1)(d), Fla. Stat.

17/ Petitioner contends, in its Proposed Recommended Order, that

even if the video footage did not depict the conduct alleged in

the Notice of Speci fic Charges and Respondent's version of the

events were accurate, "[ Respondent's ] behavior is still

inexcusable." Petitioner's Proposed Recommended Order, p. 15,

¶ 58. To the extent Petitioner contends that Respondent should

be disciplined on the basis of actions not specifically alleged

in the Notice of Specific Charges, that position is rejected.

It is well - established in Florida law that a person cannot be

subjected to administrative discip linary action for offenses not

specifically charged in the administrative charging document ÏÏ

here, the Notice of Specific Charges. See Trevisani v. Dep't of

Health , 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005); Willner v.

Dep't of Prof 'l . Reg. , 568 So. 2d 80 5, 806 (Fla. 1st DCA 1990).

Here, the Notice of Specific Charges alleges the specific

conduct ÏÏ picking J.F. up and dropping him to the ground and

grabbing the hood of his sweatshirt such that J.F. was unable to

breathe ÏÏ that Respondent is charged with hav ing engaged.

Petitioner failed to prove, by a preponderance of the evidence

that Respondent did, in fact, engage in such conduct.

Petitioner cannot, at this juncture, effectively expand the

scope of the conduct it alleges constitutes misconduct in office

or gross insubordination and discipline Respondent on this

basis. See Ghani v. Dep't of Health , 714 So. 2d 1113, 1115

(Fla. 1st DCA 1998)(where the plain language of the

administrative complaint only addresses certain conduct,

discipline cannot be impose d on the basis of conduct not

specifically addressed in the complaint). The undersigned

further notes that Petitioner contends , in its Proposed

Recommended Order, that Respondent taunted J.F., causing him to

"erupt." However, there is no evidence whatsoever in the record

showing or otherwise indicating that Respondent taunted J.F.

1 8 / However, as discussed above, the video does not show, with

any precision or clarity, the specific conduct in which

Respondent is alleged to have engaged.

19 / Exhibit 2, Petitioner's training materials, authorizes the

use of reasonable force, which may include blocking a student's

path or holding a student, when circumstances warrant. Pet.

Ex. 2, p. 47. Circumstances justifyin g the use of reasonable

force include quelling a disturbance, to prevent harm or injury

to the student or others, and in self - defense. Id. at p. 40.

20 / As discussed above, the evidence establishes that slap -

boxing can, and with some frequency does, escalate into real

fighting. As such, it constitutes behavior that is disruptive

to a safe and orderly learning environment, and may result in

harm or injury to the participants and to others. Petitioner's

school monitor training program specifically contemplates the

use of reasonable force, such as holding a student, to stop the

disruptive behavior.

21 / The UTD Contract cites Florida Administrative Code Rule 6B -

4.009. However, this rule was transferred to rule 6A - 5.056,

which was substantially amended in 2012. The 2012 version of

rule 6A - 5.056 was in effect at the time of the incident giving

rise to this proceeding, so that version applies to this

proceeding .

22 / This conclusion necessarily entails a conclusion that

Respondent did not violate the Code of Ethics of the Education

Profession in Florida, the Principles of Professional Conduct

for the Education Profession in Florida, or adopted school board

rul es, as well as the other grounds established in rule 6A -

5.056. As discussed in detail above, the undersigned finds that

Respondent's conduct constituted the use of reasonable force,

consistent with School Board Policy 5630 and Petitioner's

established sta ndards used to train school security monitors.

See Pet. Ex. 2, pp. 40, 47.

COPIES FURNISHED:

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North , Suite 110

Clearwater, Florida 33761

(eServed)

Sara M. Marken, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue , Suite 430

Miami, Florida 33132

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Pam Stewart

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Alberto M. Carvalho, Superintendent

Miami - Dade County School Board

1450 Northeast Second Avenue , Suite 912

Miami, Florida 33132 - 1308

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.