17-005367TTS Duval County School Board vs. Brent Sawdy Status: Closed Recommended Order on Wednesday, January 9, 2019.

Summary: Petitioner did not prove by the preponderance of evidence that Respondent inadequately supervised students in his classroom. Just cause does not exist to suspend him.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DUVAL COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 17 - 5367TTS

BRENT SAWDY,

Respondent.

_______________________________/

RECOMMENDED ORDER

On September 26 and 27 , 2018 , Adminis trative Law Judge

Yolonda Y. Green, of the Division of Administrative Hearings

(ÐDivisionÑ), conducted a duly - noticed final hearing in

Jacksonville , Florida, pursuant to section 1 20.57(1), Florida

Statutes (2018 ).

APPEARANCES

For Petitioner: Tracey Kort Parde, Esquire

Stanley M. Weston, Esquire

Office of General Counsel

City of Jacksonville

Room 651 E

1701 Prudential Drive

J acksonville, Florida 32207

For Respondent: Henry Matson Coxe, III, Esquire

Ashley Cox, Esquire

Bedell, Dittmar, DeVault,

Pillans & Coxe, P.A.

101 East Adams Street

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

Whether Petitioner, Duval County School Board, had just

cause to suspend Respondent without pay for seven days for the

reasons specified in the agency action letter.

PRELIMINARY STATE MENT

By letter dated September 18, 2017, Sonita D. Young ,

a ssistant s uperintendent of Human Resources of the Duval County

School Board (ÐPetitionerÑ or ÐSchool BoardÑ), issued a Notice

letter (ÐNoticeÑ) to Brent Sawdy (ÐRespondentÑ or ÐMr. Sawdy Ñ)

notifyin g him that Petitioner took action approving a

recommendation to reprimand and suspend Respondent without pay

for seven days based on conduct described in the Notice. The

Notice alleged that Respondent failed to provide adequate

supervision when he allowed students in his classroom to

participate in an inappropriate game, involving kissing and

exposure of private body parts . The Notice further alleged that

such conduct violated Fl orida Administrative Code Rule 6A -

10.081(1)(b) and (2)(a)1.

On September 20, 2017 , Respondent timely requested a

hearing to dispute Petitione rÓs action; and on September 26,

2017 , the School Board referred this case to the Division for

assignment to an Administrative Law Judge.

The undersigned issued a Notice of Hearing schedulin g this

matter for hearing on November 30 and December 1, 2017.

Following several requests for continuance, this case was

rescheduled for September 26 and 27, 2018.

The hearing commenced as scheduled with both parties

represented by counsel. Petitioner pr esented the testimony of

the following witnesses: Caleb Gottberg , former p rincipal of

Lake Shore Middle School (ÐLake ShoreÑ); Sonita Young; and the

following students: C.A., D.B., F.G., and H.P. PetitionerÓs

Exhibits 1, 2, 5, 9 through 11, 13, and 15 t hrough 22 were

admitted. Respondent presented the testimony of Mary Al ice

Knouse, former Duval County s chool r esource o fficer ; Zandra

Bryant, teacher at Lake Shore ; Mallory Layton, former intern and

teacher at Lake Shore ; Melissa Cash, former teacher at L ake

Shore; Kasey Winter, teacher at Lake Shore ; and the following

students: K.M., C.D., C.W., and J.B. Respondent also testified

on his o w n behalf. RespondentÓs Exhibits 1 through 4 and 6 were

admitted into evidence.

The two - volume Transcript was filed with the Division on

October 18, 2018. The parties requested that they be permitted

30 days to file their proposed recommended orders (ÐPROsÑ),

which was granted. 1/ The parties timely filed PROs, which have

been considered in preparation of this Recommen ded Order.

In addition, a pre - hearing stipulation was filed by the parties

stipulating to certain facts and those facts are incorporated

into the Findings of Fact below, to the extent relevant.

This proceeding is governed by the law in effect at the

tim e of the commission of the acts alleged to warrant

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

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

Florida Statutes (2016), unless otherwise noted.

FINDING S OF FACT

Jurisdiction

1. Petitioner, Duval County School Board, is the

constitutional entity authorized to operate, control, and

supervis e the public schools within Duval County. See Art. IX,

§ 4(b), Fla. Const.; § 10 01.32, Fla. Stat. Petitioner is

authorized to discipline i nstructional staff and other school

employees. See § 1012.22(1)(f), Fla. Stat.

2. Mr. Sawdy was employed as a teacher at Lake Shore in

Duval County, Florida, from 2011 through June 2018. During the

2016 - 2017 school year, Mr. Sawdy taught civics to seve nth grade

students. During the time he was a teacher at Lake Shore,

Mr. Sawdy received an effective or highly effective rating on

his performance evaluations.

3. Mr. Sawdy has never received discipline during his

tenure as a teacher. Specifically, duri ng the time that he had

worked at Lake Shore, he was never disciplined for failure to

adequately supervise students.

4. After the 2017 - 2018 school year, Mr. Sawdy relocated to

North Carolina and is serving as a teacher there.

Background

5 . Th e incident that served as the basis for this

proceeding occurred on May 2, 2017.

6 . Mr. SawdyÓs classroom was located in a portable unit

with windows at Lake Shore. Generally, Mr. Sawdy would have a

structured lesson for the class period. However, on this day

the students in the class returned from a field trip in the

middle of the third period at approximately 1:30 p.m. The

stude nts were instructed to go to their designated class and

remain there until the fourth class period. The field trip was

to the Diamond D Ranch, a farm in Jacksonville, Florida.

7 . There were approximately 20 students who went to

Mr. SawdyÓs classroom after the field trip . As was the typical

case when students returned from a field trip, the students were

described as rowdy.

8. As a result, Mr. Sawdy permitted the students to work

on note cards and listen to music. The music was from Hamilton ,

the musical, which was used to teach the students about the

historical figure, Alexander Hamilton . Although music was

playing , the students could hear each other. The lights were

off, but you could see in the room because the windows allowed

sufficient ambient light.

9. The School Board alleged that Mr. Sawdy allowed a group

of students in his class to participate in an inappr opriate

game. One of the students from the group included R.G. The

group was located at the back of the classroom. The testimony

from various witnesses about what happened in the classroom on

May 2, 2017, varied in several areas.

Student Testimony

St udent C.A.

10. C.A. testified that when the class returned to the

classroom, Mr. Sawdy did not have a specific lesson. He played

music and allowed students to move freely. According to the

diagram of the room, C.A. was sitting near R.G., with one chai r

between them, in the group. C.A. testified that he witnessed

R.G. lift her shirt, exposing her breasts. C.A. described the

event as ÐflashingÑ that happened quickly.

11. C.A. testified that Mr. Sawdy was sitting at his desk

at the front of the room when R.G. lifted her shirt, which was

farther away from R.G. than was C.A. C.A. credibly testified

that Mr. Sawdy was strict regarding discipline for inappropriate

behavior. If Mr. Sawdy had seen R.G.Ós conduct , he would have

called her parents or refer red her to the principal.

C.A. testified that he did not see anyone kissing or touching

private parts.

12. At some point during the class, C.A. slapped D.B. on

the back of her thigh. C.A. testified that Mr. Sawdy took him

outside the classroom to di scipline him for hitting D.B., which

redirected his behavior.

Student D.B.

13 . D.B. testified that Mr. SawdyÓs class is usually laid

back and there is even less structure after a field trip . After

the field trip , Mr. Sawdy instructed students to work on note

cards . While music was playing, they could hear each other.

While the lights were off, they could see each other because of

the lights from the windows. Turning of f the lights was a

common practice of other teache rs at Lake Shore as well.

D.B. was sitting at a desk on the opposite side of the group

from R.G. D.B. recalled that Mr. Sawdy was at his desk working

on his computer. There were studen ts sitting between R.G. and

Mr. Sawdy.

14. D.B. testified that she saw K. 2 / lick R.G.Ós br east ,

which happened within two seconds. D.B. credibly te stified that

she did not see anyone else expose their breasts or kiss anyone.

Student H.P.

15. H.P. was sitting near the group. She testified that

alth ough music was playing, it was no t so loud that she could

not hear.

16. She testified that she was a ware that a game was

taking place. However, she did not see anyone kiss anyone, or

engage in any inappropriate activity. H.P. testified that

Mr. Sawdy was doing paperwork, and she did not see hi m walk

around during class. However, H.P. credibly testified that

Respondent w ould discipline students if he aware that they

misbehaved.

Student K.M.

17. K.M. was sitting at the same table as H.P., near the

group. In fact, she was sitting closer to R.G. than H.P.

K.M. testified that Mr. Sawdy was sitting at his desk working on

his laptop. However, she saw him walk around the classroom Ðone

or two times.Ñ K.M. testified that Mr. Sawdy instructed

students that it would be a free day because they had returned

from the field trip . During the class, Mr. Sawdy turned on

music from Hamilton.

18. K.M. stated that she witnessed C. A. slap D. B. Ós thigh

and saw Mr. Sawdy remove C.A. from the classroom to discipline

him for his actions. Despite her close proximity to the group,

K.M. did not see anyone kiss anyone, lif t their shirt, or lick

anyone.

19. K.M. traveled to Europe for a field trip chaperoned by

Mr. Sawdy in June 2018 . She testified that he did well as a

chaperone .

Student C.W.

20 . C.W. t estified that Mr. Sawdy permitted students to

listen to music and hang out after the field trip . C.W. was

sitting near the windows , near the corner of the class , but

closer to the group than Mr. Sawdy. She characterized the group

as Ðtroublemakers.Ñ She stated that Mr. Sawdy warned the group

to settle down several times. Despite her criticism of the

group , C.W. did not see anyone kiss or lick anyone, or otherwise

engage in inappropriate activity .

Student J.B.

21 . J.B. testified that after the field tr ip , Mr. Sawdy

turned on a video of Bill Nye, Ð the science guy ,Ñ on the

television . Since s tudent s were not watching the video,

Mr. Sawdy turned on music. At some point, Mr. Sawdy told the

group of students to quiet down because they were being loud.

J.B . testified that Mr. Sawdy would discipline students who

misbehaved by talking to them or issuing a referral to the

principalÓs office.

22 . J.B. stated that he was not aware of a game of truth

or dare being played at the time . He also credibly testifie d

that he did not see anyone kiss anyone, lift up his or her

shirt , or see anyone do anything inappropriate.

Student F.G.

23 . When F.G. and the other students returned to clas s,

Mr. Sawdy instructed them to watch the Bill Nye video and work

on note cards. Music from the musical Hamilton was playing

toward the end of class , but it was not too loud.

24 . F.G. testified that Mr. S awdy was sitting at his desk

during class , but he walked around a few times. Although

F.G. was sitting close to the group , she did not know that any

inappropriate activity o ccurred until a few weeks later.

F.G. credibly testified that she d id not see anyone dancing,

kissing, or engag ing in inappropriate touching.

25 . F.G. also confirme d the testimony of C.A. and

D.B. that Mr. Sawdy would discipline stude nts who misbehaved,

beginning with a warning outside the classroom, followed by a

phone call to their parents and then , a referral to the

principal.

26 . None of the students who testified stated that they

had concerns f or their safety or the safety of other students in

the class.

27 . Although subpoenaed, the complaining student ,

K.A.M. did not appear at the final hearing. 3/

Mr. SawdyÓs Testimony

28 . Mr. Sawdy also test ified at the final hearing.

He stated that he c haperoned a group of students on a field trip

to Diamond D Ranch. When the students returned from the trip,

they were instructed to go to his classroom. No other teachers

or teaching professionals were in the classroom at that time.

29 . Mr. Sawdy tes tified that students are usually more

relaxed after field trips and would benefit from a less

restrictive teaching class period. As a result, Mr. Sawdy

played music from Hamilton and instructed the students to work

on note cards. The lights were off, but you could see because

of ambient light.

30 . Mr. Sawdy credibly testified that he had no knowledge

of any inappropriate conduct in his classroom on May 2, 2017,

until Mr. Go ttberg told him about the complaint regarding

inappropriate activity in his cla ssroom . If he had seen

anything inappropriate, he would have addressed the actors

accordingly. He described the i nstance where he counseled C.A.

M r. SawdyÓs testimony was consistent with that of C.A. and D.B.,

when he testified that he heard a slap, tu rned in the direction

that he heard it and saw C.A. looking strange. He took

C.A. outside the classroom and co unseled him for hitting D.B.

31 . Subsequent to May 2, 2017, Mr. Sawdy planned and

chaperoned a field trip to Europe with 10 middle school

stude nts , which took place in June 2018 . The principal of each

studentÓs school approved the trip to Europe without objection.

Furthermore, there were no parents that objected to Mr. Sawdy

chaperoning the students o n the trip. Specifically , s tudent s

M.W. (wh o did not testify at hearing) and K.M. were in the class

on the date in question and still attended the trip to Europe

without objection from their parents.

32 . There is no reason to believe or evidence to support

that Mr. Sawdy would not have discip lined the students engaging

in the activity alleged if he had knowledge of their conduct.

Moreover, based on his experience with the class, there was no

indication to Mr. Sawdy that the students would have the

propensity to engage in the alleged conduct. The evidence

demonstrates that the incident was , at most, a matter of two

students surreptitiously engaging in unexpected inappropriate

activity.

33 . There was no evidence offered to demonst rate that the

alleged student conduct harmed the health or saf ety of the

students in the class . Even if it is determined that the

allegations on their face would demonstrate actual harm, rul e

6A - 10.081(2)(a)1 . requires a showing that Respondent failed to

make reasonable efforts to protect students from such harm.

G erald Robinson, as CommÓr of Educ. v . William Randall Aydelott ,

Case No. 12 - 0 621PL, RO at 76 (Fla. DOAH Aug. 29, 2102;

EPC Dec. 19, 2012).

Investigation

34 . Mr. Gottberg was the principal at Lake Shore during

the 2016 - 2017 school y ear. He testified that there was a n

expectation that teachers would maintain a safe environment for

students through classroom management and disciplinary action

when necessary. There was also an expectation, but not a

requirement, that classroom instruction would take pla ce from

beginning of class until the end of class (bell - to - bell

instruction).

35 . On May 3, 2017, Mr. GottbergÓs assistant informed him

that there was a parent and student that had a complaint about

inappropriate student acti vity in Mr. SawdyÓs classroom that had

occurred on May 2, 2017. Mr. Gottberg briefly interviewed the

student and ultimately, referred the complaint to the Office of

Professional Standards.

36 . The student resource officer, Mary Alice Knouse,

interviewed three of the 22 students w ho were in the class on

May 2, 2017 . Based on her interview of the students, she

determined that other than K.A.M. and K.M., no students

witnessed any inappropriate conduct .

37 . The investigator assigned to investigate the

complaint, James Gregory, also interviewe d students.

He interviewed students involved in the alleged conduct events

and randomly selected other students. He did not interview all

the students in the classroom on May 2, 2017.

38 . Mr. Gottberg was instructed to prepare a report

rega rding the complaint, and he complied. At the direction of

the Office or Professional Standards, but before the student

interviews were completed, he recommended that Mr. Sawdy receive

Step III or Step IV progressive disciplinary action.

39 . Mr. Gott berg described Mr. Sawdy as one of the best

t eachers at Lake Shore. While Mr. Gottberg was principal, he

even appro ved the 10 - day field trip to Europe, which was

scheduled to take place after the incident on May 2, 2017.

Allegations Not Pled in Notice

40 . The School Board made much of the lights being turned

off in the room and the music playing.

41 . These allegations were not pled in the charges and ,

thus , may not be relied upon as a basis for the School BoardÓs

action. Even if the School Board h ad pled allegations regarding

the lights and music, the School Board failed to prove that

these factors proved that Mr. Sawdy inadequately supervised the

students in his classroom.

42 . At least five witnesses testified that although the

lights were off , there was sufficient light from the windows to

see in the classroom. Mr. Gottberg sent an email to the Lake

Shore teach ers the day following the incident directing them to

keep the lights on in the classrooms. However, no witness

testified that there w as a rule or policy regarding keeping the

lights on during classroom instruction prior to the incident.

In addition, teachers and students testified that it was a

common practice for the lights to be off in the classrooms

because sufficient light was avai lable by window.

43 . Several witnesses also test ified that the music was

not so loud that you could not hear .

Mr. SawdyÓs Reputation

44 . Respondent has a good reputation with other educators

and is known to be an effective teacher. Several of th ose

teachers testified at hearing about their experience working

with Mr. Sawdy.

45 . Zandra Bryant worked on the s ame team with Mr. Sawdy

at Lake Shore for approximately four years. She testified that

she had worked at Lake Shore for eight years. She d escribed

Mr. Sawdy as Ðwonderful teacherÑ who was very organized and

attentive. She was also a chaperone for the field trip to

Diamond D Ranch and characterized the students as being rowdy

when they returned from the field trip . She confirmed

Mr. SawdyÓs testimony that it would not be a good time to begin

a structured lesson.

46 . Mallory Layton also worked with Mr. Sawdy. She

described him as role model, attentive to students, including

administering discipline when necessary. Similar to Ms. Bryant ,

she al so testified that after a field trip , it is good practice

to engage the students in a relaxed activity.

47 . Melissa Cash and Kasey Winter testified that Mr. Sawdy

was a good teacher who had a respectful relationship with

students.

Ultimate F inding s of Fact

48 . There is no question that the allegations were of a

sensitive nature. The testimony varied in material aspects, and

was not of such weight (preponderance of evidence) that it

produced a firm belief that Mr. Sawdy failed to reasonably

prote ct the safety of the students in his classroom.

49 . The allegations that students engaged in exposure and

licking of private body parts was supported by a preponderance

of evidence. However, even though the evide nce supports a

finding, by a slim margi n, that students engaged in

inappropriate conduct, it must also be determined whether

Respondent failed to make reasonable efforts to protect students

from harm.

50 . The testimony varied regarding where Mr. Sawdy was

located when the student conduct occu rred . The testimony was

clear and consistent that Mr. Saw dy was in the classroom.

D.B., J.B. , and H.P. testified that Mr. Sawdy was sitting at his

desk doing work. F.G. testified that Mr. Sawdy was at his desk

during the class, but walked around a few t imes. K.M. testified

that Mr. Sawdy walked around the room one to two times. The

totality of the evidence supports a finding that Mr. Sawdy was

at his desk at the front of the room during the class period,

but he left his desk and walked around a few tim es.

51 . At the final hearing, six witnesses credibly testified

that they never saw anyone kiss, lick , or otherwise engage in

inappropriate conduct in Mr. SawdyÓs classroom on May 2, 2017.

The evidence also supports that these students were sitting

clo ser to the group and arguably, were in a better position to

see the groupÓs activity.

52 . There is no dispute that Mr. Sawdy was not aware that

a group of students had engaged in inappropriate conduct in his

classroom on May 2, 2017.

53 . Based on the evidence presented at hearing, Petitioner

did not prove by a preponderance of evidence that Mr. Sawdy

inadequately supervised students in his classroom on May 2,

2017. Mr. Sawdy walked around the classroom and interacted with

students. He had control of students to the extent that he even

disciplined a student for playfully hitting another student.

The evidence reflects that the alleged student conduct was an

isolated event that happened , at most, within one to two

seconds. The conduct was quite unusua l and could not be

reasonably anticipated.

54 . Petitioner failed to prove by a preponderance of

evidence that Mr. Sawdy failed to make reasonable efforts to

protect the students from harm.

55 . There was no evidence offered to support a finding by

a preponderance of evidence that the student conduct was harmful

to any studentÓs learning, or that the events adversely affected

any studentÓs mental or physical health, or safety.

56 . Petitioner did not prove by a preponderance of

evidence that there is just cause to suspend Mr. Sawdy without

pay for seven days.

CONCLUSIONS OF LAW

Jurisdiction

57 . The Division has jurisdiction over the subject matter

and parties in this case, pursuant to section s 120.569 and

120.57(1), and 1012.33(6) , Florida Statu tes (2018).

Standards

58 . Petitioner is a School Board charged with the duty to

operate, control, and supervise all free public schools within

the school district of Duval County , Florida, under section

1012.22.

59 . As a teacher in Duval County , Respon dentÓs employment ,

and the suspension of said employment , is governed by the

Collective Bargaining Agreement b etween Duval Teachers United

and Duval County School Board (ÐCollective Bargaining

AgreementÑ) .

60 . The Collective Bargaining Agreement require s a showing

of Ðjust causeÑ to support the imposition o f discipline against

a teacher. Regarding the definition of just cause, s ection

1012.33(1)(a) provides as follows:

Just cause includes, but is not limited to,

the following instances, as defined by ru le

of the State Board of Education:

immorality, misconduct in office,

incompetency, gross insubordination, willful

neglect of duty, or being convicted and

found guilty of, or entering a plea of

guilty to, regardless of adjudication of

guilt, any crime inv olving moral turpitude.

61 . Here, the relevant factor in section 1012.33 ,

applicable to the allegations in this matter , is misconduct in

office.

62 . Florida Administrative Code Rule 6A - 5.056 establishes

the criteria for suspension and dismissal of s chool personnel.

Subsecti on (2) of the rule, in relevant part, provides as

follows :

ÐMisconduct in OfficeÑ means one or more of

the following:

* * *

(b) A violation of the Principles of

Professional Conduct for the Education

Profession in Florida as a d opted in Rule 6A -

10.081, F.A.C.

63 . Petitioner alleged that Respondent violated the

Principles of Professional Conduct of the Education Profession

(ÐPrinciplesÑ) fou nd in r ule 6A - 10.081. Specifically, the

following portions of the principles were alleg ed to have been

violated by the Respondent:

(1) Florida educators shall be guided by

the following ethical principles:

* * *

(b) The educatorÓs primary professional

concern will always be for the student and

for the development of the studentÓs

poten tial. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and integrity.

* * *

(2) Florida educators shall comply with the

following disciplinary principles.

Violation of any of these pri nciples shall

subject the individual to revocation or

suspension of the individual educatorÓs

certificate, or the other penalties as

provided by law.

(a) Obligation to the student requires that

the individual:

1. Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the studentÓs mental

and/or physical health and/or safety.

64 . The P rinciples are divided into two sections:

subsection (1), which consists of ethical principles; and

subsection (2), which prov ides disciplinary principles with

which educators Ðmust comply.Ñ

65 . The ethical principles in subsection (1) have been

described as Ðaspirational in nature, and in most cases [are]

not susceptible of forming a basis for suspension or dismissal.Ñ

Sarasota Cnty. Sch. Bd. v. Simmons , Case No. 92 - 7278 (Fla. DOAH

Nov. 9, 1993), and Ðof little practical use in defining

normative behavior.Ñ Miami - Dade Cnty. Sch. Bd. v. Lantz ,

Case No. 12 - 3970 (Fla. DOAH July 29, 2014); Broward Cnty. Sch.

Bd. v. Weinberg , Case N o. 15 - 4993 (Fla. DOAH Apr. 13, 2016;

Fla. Broward Cnty. Sch. Bd. Aug. 23, 2016).

66 . By contrast, the disciplinary principles enumerate

specific ÐdosÑ and ÐdonÓtsÑ to put a teacher on notice

concerning what conduct is forbidden. See Miami - Dade Cnty. Sc h.

Bd. v. Brenes , Case No. 06 - 1758 (Fla. DOAH Feb. 27, 2007;

Fl a. Miami - Dade Cnty. Sch. Bd. Apr. 25, 2007). ÐThus, it is

concluded that while any violati

true.Ñ Id . ÐPut another way, in order to punish a teacher for

misconduct in office, it is necessary but not sufficient that a

proved, whereas it is both necessary and sufficient that a

violation of a spec ific rule in [subsection (2)] be proved.Ñ

Id . ; see Miami - Dade Cnty. Sch. Bd. v. Regueira , Case No. 06 - 4752

(Fla. DOAH Apr. 11, 2007; Fla. Miami - Dade Cnty. Sch. Bd.

May 25, 2007).

Burden of Proof

67 . This is a disciplinary proceeding brought pursua nt to

section 1012.33 to uphold Respondent's suspension from

employment. Petitioner bears the burden to prove each element

of each charged offense by a preponderance of the evidence.

See McNeill v. Pinellas Cnty. Sch. Bd. , 678 So. 2d 476 (Fla. 2d

DCA 199 6); Dileo v. Sch. Bd. of Lake Cnty. , 569 So. 2d 883

(Fla. 3d DCA 1990). A preponderance of the evidence is evidence

that more likely than not tends to prove the proposition set

forth by a proponent. Gross v. Lyons , 763 So. 2d 276, 289

(Fla. 2000). See a lso Haines v. DepÓt of Child. & Fams. ,

983 So. 2d 602, 606 (Fla. 5th DCA 2008) .

68 . The allegations of fact set forth in the charging

document are the facts upon which this proceeding is predicated.

Trevisani v. DepÓ t of Health , 908 So. 2d 1108, 1109 (Fla. 1st

DCA 2005). See also Cottrill v. DepÓ t of Ins. , 685 So. 2d 1371,

1372 (Fla. 1st DCA 1996). Due process prohibits the School

Board from disciplining a teacher based on matters not

specifically alleged in the notice of charges. See Pilla

v. Sch. Bd. of Dade Cnty. , 655 So. 2d 1312, 1314 (Fla. 3d DCA

1995); Texton v. Hancock , 359 So. 2d 895, 897 n.2 (Fla. 1st DCA

1978); see also Sternberg v. Dep't of Prof'l Reg. , 465 So. 2d

1324, 1325 (Fla. 1st DCA 1985) ( " For the hearing officer and the

Board to h ave then found Dr. Sternberg guilty of an offense with

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

69 . The Notice alleged that Respondent Ðfailed to provide

adequate supervision when you allowed students in your classroom

to participate in an inappropriate game, which involved kissing

and exposure of private body parts. Ñ Thus, the scope of this

proceeding is l imited to those matters as framed by Petitioner

in the Notice . M.H. v. DepÓ t of Child. & Fam. Servs. ,

977 So. 2d 755, 763 (Fla. 2d D CA 2008).

Analysis

70 . The alleged violations of the broad aspirational

objectives of subsection (1) are insufficient to establish a

violation of the Principles.

71 . The remaining issue is whether Petitioner prove d

Respondent violated rule 6A - 10.081(2 )(a)1.

72 . The evidence does not support a finding or conclusion

that RespondentÓs primary professional concern deviated from the

students and the development of their potential.

73 . Mr. Sawdy did not fail to adequately supervise the

students or fail to protect the students from harmful

conditions. C.A. and D.B. testified that Mr. Sawdy disciplined

C.A. during this class period for hitting D.B.Ós thigh. Other

students testified that Mr. Sawdy walked around the classroom

and told the group to quiet do wn.

74 . Petitioner proved by a preponderance of the evidence

that R.G. flashed her breasts and a student licked her breast.

The incidents were isolated and done within one to two seconds.

The evidence also demonstrated that Mr. Sawdy walked around the

classroom, interacted with students, and disciplined a student

for misbehaving. However, there was no competent, substantial,

or persuasive evidence to demonstrate that Mr. Sawdy saw or knew

of the alleged incident, or otherwise failed to take reasonable

efforts to protect the students from harm.

75 . The evidence produced at hearing demonstrates that

Petitioner did not have just cause to suspend Mr. Sawdy for

misconduct in office.

76 . Even if the evidence supported a finding that

RespondentÓs conduct w arranted discipline, the facts in this

case do not justify skipping two steps of the progressive

discipline policy under the Collective Bargaining Agreement.

In Quiller v. Duval County School Board , 171 So. 3d 745

(Fla. 1st DCA 2015), the First District C ourt of Appeal reversed

and remanded the School BoardÓs rejection of an administrative

law judgeÓs recommended order where the administrative law judge

had found that the behavior at issue did not constitute severe

acts of misconduct as contemplated in the progressive discipline

policy. The allegations in that case included several instances

of the teacher using profanity to wards and in front of students.

The teacher had previously been discipline d twice for similar

conduct but had not received a suspensi on without pay. There

the School Board merely skipped one step of progressive

discipline and moved to termination.

77 . Here, Respondent has never been disciplined in any

manner, yet the School Board skipped two steps of progressive

discipline for alleg ed actions . If the allegations had been

proven, at best, a reprimand would be commensurate with the

alleged offense and the Progressive Discipline policy in the

Collective Bargaining Agreement.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Duval County School Board:

a) dismiss the charges against Respondent;

b) dismiss the notice of recommendation of issuing a

reprimand and suspension without pay for seven days ; and

c ) to the extent t here is a statute, rule, employment

contract, or the Collective Bargaining A greement authorize back

pay as a remedy for RespondentÓs wrongful suspension without

pay; Respondent should be awarded full back pay and benefits.

See Sch. Bd. of Seminole Cnty. v . Morgan , 582 So. 2d 787, 788

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

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

DONE AND ENTERED this 9th day of January , 2019 , in

Tallahassee, Leon County, Florida.

S

YOLO NDA Y. GREEN

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 Adm inistrative Hearings

this 9th day of January , 2019 .

ENDNOTE S

1/ The parties were granted 30 days from the date the Transcript

was filed to submit their PROs . Pursuant to Flori da

Administrative Code Rule 28 - 106.216(2), the parties w aived the

requiremen t for this Administrative Law Judge to issue this

Recommended Order within 30 days after receiving the Transcript.

2/ The witness did not provide a last name for K.

3/ The undersigned adjusted the presentation of witnesses at the

f inal hearing to acc ommodate the complaining student, K.A.M.,

but she did not appear at the final hearing.

COPIES FURNISHED:

Tracey Kort Parde, Esquire

Stanley M. Weston, Esquire

Office of General Counsel

City of Jacksonville

Room 651 E

1701 Prudential Drive

Jacksonv ille, Florida 32207

(eServed)

Henry Matson Coxe, III, Esquire

Bedell, Dittmar, DeVault,

Pillans & Coxe, P.A.

101 East Adams Street

Jacksonville, Florida 32202

(eServed)

Ashley Cox, Esquire

Bedell, Dittmar, DeVault,

Pillans & Coxe, P.A.

101 East Ada ms Street

Jacksonville, Florida 32202

Dr. Diana Greene

Superintendent of Schools

Duval County School Board

1701 Prudential Drive

Jacksonville, Florida 32207 - 8152

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

32 5 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Richard Corcoran

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

NOTICE OF RIGHT TO SUBM IT 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.