16-000712TTS Broward County School Board vs. Stephen Dematties Status: Closed Recommended Order on Tuesday, December 6, 2016.

Summary: The School Board presented sufficient evidence to show that Respondent was sleeping in class on one occasion and so engrossed in perusing his cell phone pictures on another occasion, to warrant a two-day unpaid suspension as discipline.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 16 - 0712TTS

STEPHEN DEMATTIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case was heard by Adminis trative Law Judge Robert L.

Kilbride of the Division of Administrative Hearings, on

September 1, 2016, in Ft. Lauderdale , Florida.

APPEARANCES

For Petitioner: Tria Lawton - Russell, Esquire

Broward County School Board

Eleve nth Floor

600 Southeast Third Avenue

Fort Lauderdale, Florida 33301

For Respondent: Robert F. McKee, Esquire

Kelly & McKee

1718 East Seven th Avenue, Suite 301

Tampa, Fl orida 33605

STATEMENT OF THE ISSUE S

Whether Respondent committed the offense(s) charged in the

A mended A dministrative C omplaint ; and, if so, whether the two - day

unpaid suspension imposed by Petitioner should be upheld .

PRELIMINARY STATEMENT

On February 9, 2016, Petitioner, Broward County School Board

("Petitioner" or "School Board") , took formal action to suspend

Respondent, Stephen DeMatties, for two days without pay for

certain incidents which occurred during the 2014 - 2015 school

year.

Respondent timel y requested a hearing pursuant to sections

120.569 and 120.57(1), Florida Statutes , and the matter was

referred to the Division of Administrative Hearings.

The final hearing was held on September 1, 2016. Petitioner

presented the testimony of two minor st udents , J.L. and J.R. ;

Teresa Hall ; John Sammarco ; Richard Gonzalez ; Michelle Garcia ;

Janice Crosby ; Tanisha McDougle ; Nicole Miller ; Priscilla

Rodriguez ; Pamela Medoff ; and Flavia El - Bouridi. Petitioner ' s

Exhibits 1 through 4, 9 through 15, 17, 20, 22, a nd 2 3 were

admitted into evidence pursuant to the parties ' stipulation.

Petitioner ' s Exhibit s 7, 8, 18 - 37, 18 - 38, 18 - 39, 18 - 40 through

18 - 43, 18 - 45 through 18 - 49, 18 - 51 through 18 - 59, 19 - 65 , and 19 - 69

were also admitted.

Respondent testified on his own be half and relied on several

exhibits previously admitted by Petitioner.

The Transcript was filed with the Division of Administrative

Hearings on October 3, 2016. After an extension was granted,

both parties ti mely submitted p roposed r ecommended o rders , whi ch

were considered by the undersigned in preparat ion of this

Recommended Order.

References to the Florida Statutes are to the 2015 version,

unless otherwise stated .

FINDING S OF FACT

The undersigned makes the following findings of relevant and

material fact s:

1. Petitioner is the duly - constituted school board of

Broward County , Florida. It is charged with the duty to provide

a public education to the students of Broward County and to

establish policies and programs consistent with state law and

rules, nece ssary for the efficient operation and general

improvement of the Broward County district school system.

2. Respondent was employed by Petitioner as a physical

education teacher at West Broward High School during the 2014 -

2015 school year.

March 19, 2015 , I ncident

3. On March 19, 2015 , Respondent was teaching a nin th - grade

health and physical fitness class known as HOPE, during the

seven th period of the school day. March 19 , 2015, was the day

before the students were going to be released for Spring Break.

4 . As was the common practice, many of the students in his

class opted to attend a " pep rally " being conducted on campus,

which began shortly after his HOPE class started.

5 . After the students departed for the " pep rally ,"

approximately 12 students rem ained in the class under

Respondent ' s supervision.

6 . The class remained in session , and Respondent showed the

remaining class students an educational video.

7 . As the video played, the lights were dimmed. Respondent

was at the front of the class sittin g behind his desk in a chair

that reclined.

8. During the video, one of the students, J.R., observed

Respondent leaning back, reclined in his chair with his eyes

fully closed. Respondent ' s chair was turned partially away from

the class. J.R. ' s desk was approximately 15 to 20 feet from

Respondent ' s desk. J.R. observed Respondent in this posture for

close to ten minutes.

9. At some point, J.R. got up from his desk and approached

Respondent to hand in some paperwork.

10. While standing directly in front of Respondent ' s desk ,

he took a photograph of Respondent in this posture. See P et.

Ex . 5 .

11 . When J.R. approached Respondent ' s desk and stood in

front of it, Respondent did not wake up, stir , or acknowledge

J.R. ' s presence or take the papers from him.

1 2 . Notably, J.R. heard Respondent lightly snoring during

the time he was asleep. 1/

13 . J.R. shared this photograph with several friends on a

social media site. One of his friends, J.L., who was also

attending the same class, saved the photograph by taki ng a screen

shot of it. 2/

14 . While all of this occurred, J.L. was sitting in close

proximity to J.R. J.L. also noticed that Respondent was sleeping

and reclined in his chair with his eyes closed.

1 5 . During the period of time that Respondent was in thi s

posture and slumber, he was not properly attending to his duties

as a teacher and was not properly supervi sing the students in his

class.

16. While it is not necessary to recount in detail, the

record reflects that Respondent had been counseled, written up ,

or warned about not properly supervising or monitoring students

in other classes during the years preceding this incident.

17. These various memos and written or verbal warnings

constituted sufficient directives or orders by supervisors, the

violatio n(s) of which constituted insubordination. See generally

Pet . Ex . 18, composed of multiple subparts and pages.

18. Based on the persuasive and credible evidence , it

should have been obvious to Respondent on March 19, 2015 , that

this type of conduct was s trictly prohibited, in violation of

School Board rules and regulations, and exposed him to

progressively stricter discipline.

19 . Sometime later, J.L. met with the assistant principal,

Richard Gonzalez, to complain about his grades in Respondent ' s

class. It was during this meeting that Gonzalez was shown the

picture that J.R. had taken on March 19, 2015.

20. After conducting an investigation, Gonzalez and the

principal, Teresa Hall, met with Respondent and his union

representative during a pre - determinat ion meeting to discuss the

incident and provide Respondent with an opportunity to respond.

21. Initially, and before being shown the picture,

Respondent denied that he had been sleeping in the HOPE class.

However, after being shown the picture, Petitione r's Exhibit 5,

he asserted that the picture was n o t in a classroom. He went on

to add that it " would not be like me to do that . " He lamented

that he was going through marital problems and was on medication.

He told Hall and Gonzalez that he was embarras sed. Respondent

cried during the meeting.

22. He also told Hall and Gonzalez that he had never done

this before and could n o t believe that it happened. He appeared

very embarrassed. He told both of them, as he handed back the

photograph, " I can ' t belie ve this happened . "

23 . The undersigned concludes that despite the lack of a

direct or forthright admission that he had been caught sleeping,

Respondent acknowledged through his verbal and physical

responses, demeanor , and body language that he had been

in attentive, sleeping , and caught in this posture in violation of

S chool B oard rules and policies. Further, it is clear that

Petitioner's Exhibit s 5 and 6 alone show Respondent fully asleep

and/or in a very deep state of slumber and clearly inattentive to

h is duties as a supervising teacher for the HOPE class on

March 19, 2015.

24 . During the hearing , Respondent was questioned by his

attorney about the picture that appeared to show that he was

sleeping. He denied closing his eyes. He acknowledged that the

picture was of him, but asserted, " I ' m not sleeping . " Rather, he

deflected the point of the inquiry and stated " I ' ve never slept,

especially with students in class . "

25. Inexplicably, he left it at that and offered no

credible explanation concerning wha t the picture showed or

depicted.

26. At some point after this incident, Respondent

approached the school resource officer, John Sammarco. They

discussed the photo of Respondent taken by J.R. which purportedly

showed him sleeping. He asked the officer to talk to the

student and have J.R. retract the photograph from the internet

and write a statement saying that Respondent was not sleeping.

27. Needless to say, Sammarco refused to assist Respondent

in this manner and, instead, immediately reported this meeting to

Hall and Gonzalez.

28. Shortly thereafter, Respondent came back to the officer

and apologized to him for " putting him [ sic ] in that position . "

March 30, 2015 , I ncident

2 9. The school principal, Hall, was conducting a routine

walk - through of th e West Broward High School campus with her

a ssistant p rincipal , Gonzalez. As they passed Respondent ' s

classroom, they noticed that the lights were dimmed.

3 0. Interested to know what was happening, they entered the

class room by using the back door. The classroom was dimly lit

and full of students. They walked up the right side of the

classroom along the wall from the rear of the classroom.

3 1. Respondent was seated at his desk, turned away from the

class , and facing more in the direction of the video screen that

was located at the front of the class. Respondent was leaning

back in a relaxed posture and had his cell phone in his hand. He

was not facing the class or watching the students.

3 2. From her vantage point , several feet behind and to the

rig h t of Respondent, Hall could see that Respondent was looking

at pictures of females on his cell phone and scrolling through

them with his finger. He would occasionally glance up at the

video being shown on the screen and then glance back down at his

cell p hone.

33 . Hall stood quietly behind Respondent observing this

activity for approximately one to two minutes. Respondent never

acknowledged her presence, nor did he turn and notice that the

school principal was in the room with Gonzalez.

34 . Gonzalez was slightly behind Hall. He could also tell

that Respondent had his cell phone in his hand , but was not able

to see what he was looking at. Nonetheless, Gonzalez confirmed

that Respondent did not acknowledge their presence or even appear

to know that they were in the classroom. 3/

35 . When asked during the administrative hearing about this

particular incident, Respondent testified that he knew they were

there but that he was not required to acknowledge their presence.

He said he did look at his cell phone but does n o t recall what

pictures he was looking at. The pictures may have been from

Facebook or some other social media. When asked if it is

appropriate to look at social media in a classroom of students,

with the school ' s principal present, he stated t hat " I did it,

but I didn ' t think nothing of it. "

36. Based on the more credible and persuasive evidence, the

undersigned finds that Respondent was not aware that Hall and

Gonzalez were in the room observing his actions, nor was he

properly supervising hi s students during Hall ' s visit.

37 . Further, these separate incidents on March 19 and 30,

2015 , constituted : (1) a lack of proper supervision of his

classes ; (2) willful neglect of his duties as a teacher ; and

(3) insubordination.

CONCLUSIONS OF LAW

38. The Division of Administrative Hearings has

jurisdiction of this proceeding pursuant to sections 120.57(1)

and 1012.33(1)(a), Florida Statues (2016) .

39. In an administrative proceeding to suspend or dismiss a

member of the instructional staff , the S choo l B oard bears the

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

element of the charged offense(s). See McNeill v. Pinellas Cnty.

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

Sumter Cnty. Sch. Bd. , 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995);

MacMillan v. Nassau Cnty. Sch. Bd. , 629 So. 2d 226 (Fla. 1st DCA

1993).

40 . A disciplinary hearing at the Division of

Administrative Hearings before an A dministrative L aw J udge is a

"de novo" proceeding. As such, evidence must be developed and

exist during the administrative hearing to justify the action

contemplated by the agency. See generally § 120.57(1)(k), Fla.

Stat. ("All proceedings conducted under this subsection shall be

"de novo.") ; and Fla. Dep't of Transp. v. J.W.C. Co. , 396 So . 2d

778 (Fla. 1st DCA 1981).

4 1 . Moreover, a "de novo" proceeding is intended to

formulate final agency action by an agency and is not simply to

review action taken earlier, or preliminarily. McDonald v. Dep't

of Banking & Fin. , 346 So. 2d 569 (Fla. 1st DCA 1977); Beverly

Enters. - Fla., Inc. v. Dep't of HRS , 573 So. 2d 19 (Fla. 1st DCA

1990); and Lawnwood Med. Ctr. v. Ag. for Health Care Admin. , 678

So. 2d 421 (Fla. 1st DCA 1996).

42 . Whether Respondent committed the charged offense(s) is

a question of u ltimate fact to be decided by the trier of fact in

the context of each alleged violation. McKinney v. Castor , 66

So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson , 653

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

43 . Other principles of law are equally i mportant. An

agency or school board's interpretation of its own rules and

policies is entitled to deference. Beach v. Great Western Bank ,

692 So. 2d 146, 149 (Fla. 1997).

44 . And while the deference to be accorded is not absolute,

courts and administrat ive tribunals should defer to the agency

unless the agency's construction of its rules or policies amounts

to an unreasonable interpretation, or is clearly erroneous.

Purvis v. Marion Cnty. Sch. Bd. , 766 So. 2d 492 (Fla. 5th DCA

2000); Legal Envtl. Assist ance Found., Inc. v. Bd. of Cnty.

Comm'rs. of Brevard Cnty. , 642 So. 2d 1081, 1083 - 84 (Fla. 1994).

45. Sleeping in a classroom full of students during the

HOPE class was conduct that clearly impaired Respondent ' s

effectiveness as a teacher. Likewise, bei ng so engrossed in his

cell phone data and pictures and being unable to sense that the

school principal and assistant principal were in the room was

also compelling evidence of Respondent ' s lack of effectiveness.

46. Impaired effectiveness is inherent in these acts. A

finding of impaired effectiveness justifies teacher discipline.

Purvis , supra ; and Walker v. Highlands Cnty . Sch. Bd. , 752 So. 2d

127 ( Fla. 2 d DCA 2000).

47 . Florida Administrative Code Rule 6A - 5.056(4) defines

gross insubordination as the "intentional refusal to obey a

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

authority, misfeasance, or malfeasance as to involve failure in

the performance of the required duties."

48 . Gross insubordination has been found to constitut e

sufficient cause to terminate an employee. Dolega v. Sch. Bd. of

Miami - Dade Cnty. , 840 So. 2d 445 (Fla. 3d DCA 2003). See also

Johnson v. Sch. Bd. of Dade Cnty. , 578 So. 2d 387 (Fla. 3d DCA

1991).

49 . The warnings and directives he had received on sev eral

occasions were not followed in these two incidents , thereby

constitut ing gross insubordination.

50. Based on the evidence presented, the undersigned

concludes that the conduct of Respondent on both March 19 and

March 30, 2015, constitute s sufficient and just cause to find

that Respondent was inattentive to his duties, willfully

neglected his duties, and was insubordinate. This warrant s a

two - day , unpaid suspension from employment, as proposed by the

School Board.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Broward County School Board enter

a final order impos ing its intended penalty of a two - day , unpaid

suspension.

DONE AND ENTERED this 6th day of December , 2016 , in

Tallahassee, Leon County , Florida.

S

ROBERT L. KILBRIDE

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.st ate.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of December , 2016 .

ENDNOTE S

1/ The photo was taken, in part, because of J.R.'s resentment and

concern about his grade in Respondent's class. Apparently, he

was not doing well and wanted some proof to support his claim

that Respondent's teaching skills were the source of his problem.

Regardless of J.R.'s motivation, a "picture speaks volumes."

What the picture depicts -- Respondent sleeping or in a very deep

state of slumber -- and the reasonable inferences therefrom, cannot

be ignored or seriously questioned.

2/ Ultimately, the screen shot was printed and utilized as

Petitioner's Exhibit s 5 and 6 during the hearing.

3/ This lack of attention to duty and supervision of the students

was in violation of school regulations , as well as the warnings

Respondent had received in the past concerning other incidents

concerning his lack of supervision of students in his charge.

COPIES FURNISHED:

Tria Lawton - Russell, Esquire

Broward County School Board

Eleventh Floor

600 Southeast Third Avenue

Fort Lauderdale, Florida 33301

(eServed)

Robert F. McKee, Esquire

Kelly & McKee

1718 East Seven th Avenue , Suite 301

Tampa, Florida 33605

(eServed)

Matthew Mears, General Counsel

Dep artment 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, Flori da 32399 - 0400

(eServed)

Robert Runcie, Superintendent

Broward County School Board

Tenth Floor

600 Southeast Third Avenue

Fort Lauderdale, Florida 33301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions with in

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.