17-006470TTS Miami-Dade County School Board vs. Kamla C. Bhagwandin Status: Closed Recommended Order on Thursday, June 28, 2018.

Summary: A teacher and a paraprofessional were not shown to have physically abused, mistreated, or otherwise behaved inappropriately towards one of their special-needs students, as charged; recommend reinstatement and back pay.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 17 - 6427 TTS

DARLENE G. TAYLOR ,

Respondent.

_______________________________/

MIAMI - DADE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 17 - 6470TTS

KAMLA C. BHAGWANDIN,

Respondent.

_______________________________/

RECOMMENDED ORDER

Th e s e case s came before Administrative Law Judge John G.

Van Laningham , Division of Administrative Hearings ("DOAH"), for

final hearing by video teleconference on February 19 , 20 1 8 , at

sites in Tallahassee and Miami , Florida.

APPEARANCES

For Petitioner Miami - Dade County School Board :

Christopher J. La Piano , Esquire

Miami - Dade County School Board

1450 Northeast 2nd Avenue , Suite 430

Miami , Florida 33 132

For Respondent Darlene G. Taylor:

Michelle A. Delancy , Esquire

DelancyLaw , P.A.

8 925 S outhwest 148th Street, S uite 200

Palmetto Bay , Florida 33 176

For Respondent Kamla C. Bhagwand in :

Branden M. Vicari , Esquire

Herdman & Sakellarides , P.A.

29605 U.S. Highwa y 19 North , Suite 1 10

Clearwater , Florida 33 761

STATEMENT OF THE ISSU E

T he issue in th e s e case s is whether , as the district school

board alleges, a teacher and a paraprofessional physically

abused, mistreated, or otherwise behaved inappropriately towards

one of their special - needs students .

PRELIMINARY STATEMENT

At its regular meeting on November 15 , 201 7 , Petitioner

Miami - Dade County School Board voted to approve the

superintendent ' s recomm endation that Respondent s Darlene G.

Taylor and Kamla C. Bhagwandin be immediately suspended without

pay pending termination of their employment as , respectively, a

paraprofessional and a teacher. The reasons for t his action

were spelled out in a Notice o f Specific Charges that was filed

with DOAH on January 17, 2018. The gravamen of Petitioner ' s

charges i s that, on August 31, 2017, Dr. Bhagwandin and

Ms. Taylor each abused, mistreated, or otherwise behaved

inappropriately towards an autistic student name d D.

Each Respondent timely requested a formal administrative

hearing to contest Petitioner ' s intended action. In late

November 2017, Petitioner referred the matter s to DOAH for

further proceedings. On January 17, 2018, the undersigned

consolidated the two cases.

At the final hearing, which took place on February 18,

2018 , Petitioner called the following witnesses: Greg Siegel,

John Galardi, Tony Bermudez, and D.M. - E. (the student D. ' s

mother) . Petitioner ' s Exhibits 1 , 2, 4 through 8, 11, 12,

and 19 th rough 22 were received in evidence. Each Respondent

testified, and they offered , in addition, the testimony of

Elizabeth Rodriguez. Respondent Bhagwandin ' s Exhibit 2 was

admitted into evidence. (Respondents skillfully use d

Mr. Bermudez ' s December 27, 20 17, deposition to impeach his

credibility with numerous prior inconsistent statements.

Because Mr. Bermudez did not deny having made the prior

inconsistent statements, his deposition was not admitted.

See § 90.614(2), Fla. Stat. The relevant portions of this

deposition would have been admissible pursuant to

section 90.801(2)(a) , Florida Statutes , but its limited use as

impeachment material was sufficient for Respondents ' purposes.)

T he two - volume final hearing transcript was filed on

April 13, 2018 . Each party timely filed a Proposed Recommended

Order ("PRO") on May 4, 2018, which was the deadline . The

parties' PROs have been considered in the preparation of this

Recommended Order.

U nless otherwise indicated, citations to the official

statute law of the state of Florida refer to Florida Statutes

2018.

FINDINGS OF FACT

1. The Miami - Dade County School Board ( " School Board " or

the " district " ), Petitioner in th e s e case s , is the

constitutional entity authorized to operate, control, and

supervise the Miami - Dade County Public School System.

2. At all times relevant to th e s e case s , Respondent

Kamla C. Bhagwandin ( " Dr. B. " ) was employed as a n e xceptional

s tudent e ducation ( " ESE " ) teacher in the Miami - Dade County

public schools, a position which s he had held for approximately

17 years . Dr. B . has earned a bachelor ' s degree in special

education, a master ' s degree in English as a second language

( " ESOL " ) , and a doctoral degree in educational leadership and

organization.

3. When the 201 7 - 20 1 8 school year start ed , Dr. B. was a

special education teacher at South Dade Middle School ( " SDMS " ) ,

where she taught a self - contained class containing 19 ESE

students .

4. At the beginning of the 2017 - 2018 school year,

Respondent Darlene Taylor ( " Taylor " ), a paraprofessional, was

assigned to Dr. B. ' s classroom.

5. Because Dr. B. had a relatively large class with nearly

three times the number of students in other ESE classes at SDMS ,

substitute teachers were routinely assigned Dr. B. ' s classroom

to provide ass istance . Thus, three adults typically were

present in Dr. B. ' s classroom during school hours .

6. Tony Bermudez ( " Bermudez " ) was one of the substitute

teachers assigned to work in Dr. B. ' s classroom during the 2017 -

2018 school year. He was assigned to Dr . B . ' s classroom about

five times, his last day with her being August 31, 2017. That

is the date of the event at issue , to which Bermudez , who has

accused Dr. B. and Taylor of child abuse, is the district ' s only

witness.

7. Before turning to the disputed event, which occurred at

the start of the school day, it will be useful to look at what

happened immediately before and after the incident in question.

8. At SDMS that year, t he first bell summoning the

students to class rang at 8:30 a.m., and the last bell at

8:35 a.m. Dr. B. ' s regular practice was to escort her students

from the cafeteria to the classroom between 8:30 a.m. and

8:35 a.m. It is undisputed that this is what s he did on

August 31, 2017 , and that, by 8:35 a.m . , Dr. B. and her

students, in cluding a 12 - year - old autistic student named D.,

were in the classroom. Therefore, if anything unusual happened

to D. that morning, as alleged, it happened no earlier than

8:3 0 a.m., and most likely after 8:35 a.m .

9. It is undisputed that, on the mornin g of August 31,

2017, Bermudez informed Dr. B. (untruthfully) that he needed to

go to the bathroom because his stomach was upset. He then left

the classroom and proce e ded directly to the office of Elizabeth

Rodriguez, who he mistakenly thought was an assi stant principal ,

but who was actually the school ' s test chairperson and ESOL

chairperson. Ms. Rodriguez testified credibly at hearing that

she had just returned to her office, to which she usually

repaired after the last bell rang at 8:35 a.m., when Bermudez

arrived. Bermudez came to her , she explained, " in the morning

right after we had let the students into the classrooms . "

10. Later that same day, after Bermudez had accused Dr. B.

and Taylor of wrongdoing, Ms. Rodriguez wrote and signed a

state ment describing her encounter with Bermudez. This

contemporaneous statement is consistent with her final hearing

testimony, but since it was written before any dispute about the

time of Bermudez ' s visit had arisen, Ms. Rodriguez ' s initial

account is parti cularly probative on that point. When the

matter was fresh in her mind and she had no reason to hedge on

the time, Ms. Rodriguez recorded the following:

At approximately 8:30 a.m., Mr. Bermudez

asked to speak to me in my office. (He was

under the impress ion I was one of the

Assistant Principals). He stated he wanted

to inform the [person who assigns substitute

teachers that] he no longer wanted to be

assigned to the [special education] unit

because of the aggressiveness. I asked him

if the students were aggressive and he

stated, " No, it ' s the adults " . He

elaborated by stating he had witnessed some

things that were very upsetting and he had

discussed it with his wife, who is also a

teacher at another school and she advised

him to speak to the principal.

I assured him I would speak to the principal

and to the ESE Program Specialist . . . on

his behalf. I advised him to go back to the

classroom and we would address his concern.

11. By the time of the hearing, Ms. Rodriguez must have

known that her cont emporaneously recorded recollection of

Bermudez ' s having approached her at " approximately 8:30 a.m. "

was not helpful to her employer ' s case against Dr. B. and Taylor

because it leaves little or no time for anything untoward to

have occurred in Dr. B. ' s classroom that morning . Under

questioning by the district ' s counsel, Ms. Rodriguez did her

best to stretch the " approximately 8:30 a.m. " time frame as wide

as it would go , first to 8:40 a.m ., and finally to " possibly "

9:00 a.m. Given her unqualified test imony about encountering

Bermudez right after the students had gone to class (between

8:30 and 8:35 a.m.) , however, and the contemporaneous statement

that he had shown up in her office at " approximate ly 8:30 a.m., "

the undersigned finds that Bermudez met w ith Ms. Rodriguez no

later than 8:40 a.m. on August 31, 2017.

12. This means that if Dr. B. and Taylor abused D., as

Bermudez claims, then they did so in a hurry, for the students

were not let into Dr. B. ' s classroom until around 8:35 a.m., and

Bermudez needed a minute or two to get from the classroom to

Ms. Rodriguez ' s office.

13. Ms. Rodriguez brought Bermudez to the principal, John

Galardi , according to the latter, whose testimony on this point

is credible, albeit inconsistent with Ms. Rodriguez ' s written

statement . After Bermudez told Mr. Galardi that he had

witnessed D r. B. and Taylor abuse a student, Mr. Galardi called

the school police department, which dispatched officers and

detectives. Meantime, Mr. Galardi asked Bermudez to write a

stateme nt describing the incident he claimed to have observed.

Bermudez wrote a statement, the first of several he would draft

that day.

14. When the detectives arrived, they asked Mr. Galardi if

there were any surveillance videos that might have captured the

incident. Mr. Galardi directed a custodian to retrieve the

video from the closed - circuit TV camera in the hallway near

Dr. B. ' s classroom. The custodian brought out a video, which

the detectives watched with Mr. Galardi.

15. One of the detectives mad e a video recording on his

cellphone of the monitor to which the surveillance video was

being transmitted . This cellphone video , which runs about

67 seconds , is the footage that the district offered into

evidence at hearing. The actual surveillance video was not

offered. No information concerning its whereabouts was

provided.

16. Neither the custodian nor the detective testified at

hearing about the circumstances surrounding the making of the

cellphone video . 1 / Putting aside the obvious chain of cus tody

issues with the video, the quality of the derivative image is

very poor. (Imagine using your cellphone to film the movie

you ' re watching on TV, and then viewing the movie on your phone,

and you ' ll get the picture.) Crucially, the detective cropped

the image so as to eliminate the date and time stamp that ,

according to Mr. Galardi, the original surveillance video

displayed.

17. The thing that jumps out at the fact - finder when he

watches this dubious video is that it not only fails to

corr oborate Bermudez ' s initial written statement, it actually

contradicts him (if we assume , as the district contends, that

the video depicts some portion of the event he claims to have

witnessed). Although the record is silent as to when Bermudez

first saw t he video, there is little doubt (and the undersigned

finds) that he had not viewed the recording before writing his

initial statement.

18. As the video begins , two figures (identified as Dr. B.

and D.) emerge into the hallway, having exited the clas sroom,

whose door ÏÏ in a recessed entryway ÏÏ is out of view . There is no

indication of distress or discomfort in either individual ' s

movements or posture , nothing consistent with a commotion or

struggle . Although t he video does not have an audio track, D. ' s

body language gives no suggestion that she is screaming or

crying ; rather, she appears to be composed, compliant , and

unharmed. The pair do es not remain outside the door to the

classroom .

19. Their faces are not visible. Dr. B. and D.

immediately turn away from the camera, and walk calmly but

purpos efully down the hallway, towards glass doors at the far

end. The two are walking side by side , and their body language

suggests that Dr. B. is escorting D. The teacher might have her

hand on the student ' s back, but that is not clear. What is

clear is that Dr. B. is not pushing, pulling, or forcing D. to

move.

20. Before reaching the glass doors, Dr. B. and D. turn

left, and it looks like they are about to enter a classroom. At

this point, they are fa r from the camera, and the image quality

is so poor that it is not possible to make out in detail what

happens next . We can see, however, that Dr. B. and D. do not go

into a classroom. Instead, they back up and return to the

hallway , where they face each other for a few moments. There

seems to have been a disturbance of some sort ÏÏ perhaps D. has

beco me uncooperativ e. Due to the graininess of the image and

the distance of the subjects from the camera, t he figures on the

screen are practically silhouette s ; they have their arms

outstretched towards one another and might be holding hands.

The image resembles that of a parent in a grocery store

explaining to her pleading child that she cannot have a bag of

cookies. There is nothing happening on screen that looks like

physical abuse or violence of any kind.

21. While this is going on, a third person appears,

entering the hallway through the glass doors that are behind

Dr. B. and D. in relation to the video surveillance camera.

This person has been identifi ed as Taylor. The arrival of

Taylor prompts D. to hurry back to Dr. B. ' s classroom , nearly

breaking into a run. Dr. B. and Taylor follow, but at a normal

walking speed. D. beats them to the class room , obviously, and

dashes into the recessed entryway, wh ich takes her out of our

view for more than ten seconds, as Dr. B. and Taylor make their

way to the room.

22. When the adults turn to enter the classroom, we lose

sight of them as well , but for a split second we can tell that

all three individuals are in the recessed entryway, probably

because the door is locked. Suddenly, D. walks backwards into

the hallway, as if to leave, and one of the adults (it is

impossible to see which, as they are both off camera) promptly

reaches out and takes hold of D. arou nd the shoulder area. The

district argues that the video shows Dr. B. grabbing D. by the

head and jerking the student into the room. The undersigned

rejects the district ' s interpretation of the blurry image

because (a) the teacher appears more likely to have found

purchase for her grip in D. ' s collar and (b) D. ' s head does not

react as though she were being pulled by, e.g., the hair .

23. The district further argues that , on the film, D. can

be seen bend ing sharply at the waist, forming a 90 - degree ang le

with her upper and lower bod y , proving that she was jerked with

considerable force . Again, however, the undersigned rejects the

district ' s interpretation of the ambiguous image.

24. It must be stressed that this happens very fast and

the video qual ity is very poor. As a result, people wi ll see

what they want to see. No doubt, therefore , some who see the

video will agree with t he district that someone yanked D. by the

head. B ut the image does not persuade the undersigned that such

is more likely t han not what happened. Furthermore, Bermudez ' s

hearing testimony , which for the first time included the detail

that D. was bent over at a 90 - degree angle, is unreliable , and

not only because (as will be seen) Bermudez could not keep his

story straight. It is highly unlikely that Bermudez could have

seen this particular transaction , b ecause he was in the

classroom when it occurred, while D. and the adults were

outside, in the entryway and hallway; indeed, the classroom door

(although unseen in the video) was probably still closed. The

undersigned infers that one (but not the only) reason Bermudez

has given so many different version s of the disputed event is

that he has been trying to tailor his testimony to the video.

25. At any rate, based on the video, which is low - quality

evidence , to be sure, but is at least more credible than

Bermudez, the undersigned finds it to be as likely as not that

D. instinctively bent forward under her own power , as opposed to

someone else ' s forceful tug, because doing so probably would

have improved her ability to resist, if she were inclined to

struggle. Bending quickly towards the teacher would keep D. ' s

weight in front of her and her body lower to the ground , likely

improving her balance, and also might loosen the teacher ' s grip.

26. The main point , however, is that the video, with all

of its limitations, is nowhere close to the knockout punch the

district thinks it is. What i t shows, at the end, is a teacher

making a reasonable effort to stop a student from escaping,

which could lead to a dangerous situation. This is what

teachers are supposed to do.

27. The district argues that this brief contact with D.

constituted a manual physical restraint, which Dr. B. failed to

report in accordance with district pol icy and state law. This

argument is rejected. If the term " manual physical restraint "

were interpreted so liberally as to include such incidental

contact as this, which (for all that can be seen in the video)

was reasonably intended to prevent a student from bolting , and

which restricted the student ' s movement for about a second, the

reporting burden would be unjustifiably heavy , and (worse) would

create a perverse disincentive to reasonable protective

intervention.

28. Having reviewed what happened be fore and after the

incident in question, and having looked at the video, the time

has come to focus on Bermudez ' s many accounts of what he claims

to have seen . As mentioned, Bermudez prepared three written

statements on Augus t 31, 2017. The first, though dated, does

not reflect the time that it was drafted. Presumably, however,

this initial statement was written in the morning, only a short

time after the events described therein. The second states that

it was signed by Bermudez at 12:50 p.m. , less than four hours

later. The third statement is typewritten and (as relevant to

this case) is substantially similar to the second statement.

29. On December 27, 2017, nearly four months after the

disputed incident, Bermudez gave a deposition in the criminal

case that the state brought against Dr. B. and Taylor . He also

testified at their trial, but the transcript was unavailable for

use in the instant hearing. 2 / Finally, Bermudez testified at the

final hearing of this matter.

30. The following table summar izes the material portions

of Bermudez ' s ever - changing testimony:

Fist Written Second and Third Deposition Final Hearing

Statement Written Statements 12/27/17 Testimony 02/19/18

08/31/17 08/31/17

No mention of D. No mention of D. For about a minute T.B. had just gotten to

screaming for 20 - 30 screaming for 20 - 30 after the students the classroom. Dr. B.

minutes about minutes about entered the classroom, and Taylor were coming

headphones. headphones. from the cafeteria, back from the cafet eria

nothing unusual with the students. D.

happened; it was a was complaining, and

regular day. Then screaming intensely,

Dr. B. saw D. with " Headphones, headphones, "

headphones, walked up over and over, for 20 to

to D., and yanked the 30 minutes. D. was

headphones away, which sitting down and never

made D. act up and stood up. [Later, T.B.

scream, for 20 to 30 changes this to " she was

minutes. " It had to be maybe, like ÏÏ kinda like

more than twenty, in between, like bet ween

thirty minutes, around sitting and standing,

that time frame. " kinda like. " ] Taylor

wasn ' t in the classroom.

Dr. B. and Taylor " This [is what] occurred Taylor left with one of After 20 - 30 minutes,

grabbed D. by the neck today at approximately the kids. She returned Dr. B . approached D. and

and threw her into a 9 a.m. " ] with the child at the told her to get up .

closed door with time Dr. B. picked up Dr. B . grabbed D. by the

extreme force. D. refused to sit down , D. by the shirt. sleeve and hair , pulled

so Dr. B. pulled D. by Taylor slammed or her out of the chair , and

No mention of D. being the hair and slammed her " bumped " the other dragged her towards the

dragged out of the into the door. child she was with (not door. Dr. B. slammed

classroom. D.) against the door. D. ' s face against the

Dr. B. dragged D. out of door. Then , Dr. B.

No mention of Dr. B. the classroom. Dr. B. pulled D. by the grabbed D. by her ear ,

draggin g D. by the ear. shirt and slammed her and pulled D. outside by

No mention of Dr. B. face against t he door. the ear.

dragging D. by the ear. Then she dragged D. by

the ear out the door.

Taylor, who had

reentered the

classroom, remained

inside, just sitting in

her chair, waiting for

Dr. B. to return.

No mention of Dr. B., Dr. B. closed the T.B. could hear D. Dr. B. and D. were out of

Taylor, or D. being out classroom door, and T.B. screaming from the the classroom, in

of the classroom. couldn ' t see them, but other side of the door. hallway, and T.B.

he could hear D. could n ' t see them, but he

screaming and crying could hear D . screaming,

outside. for a few minutes.

[Later, T.B. defines a

" few minutes " as meaning

" two to seven minutes. " ]

Dr. B. and Taylor After a couple of Taylor was in the room After a few minutes, they

dragged D. by the hair minutes, Dr. B. opened with T.B. , texting on reentered the room.

and threw her into a the door, dragged D. her phone. When Dr. B . Dr. B. had D. by the

desk with great force. into the classroom by reentered with D., hair, and D. was bent at

her hair, and threw her after being out of the the waist at a 90 degree

onto the desk in a class for a minute or angle. Taylor came in

rough, abusive way. two, D r. B. had D. by behind them. Dr. B.

the back of D. ' s shirt, pulled D towards the

not pulling but holding chair. Then Dr. B. threw

onto her. Dr. B. or slammed D. into her

guided D. to her chair , chair, and D. was crying.

and D. sat down.

Taylor hit D. o n the Taylor walked into the No mention of this in While D. was at her desk,

back of the head, hard. classroom and hit D. in the deposition. T.B. Taylor walked behind D.,

the back of the head, in testifies at hearing told her to shut up, and

a rough and very violent that he couldn ' t smack ed her in the back

manner. remember it then. of the head.

31. The material discrepancies are plain to see. The

undersigned will discuss a few. Starting with the first

statement, notice that Bermudez ' s original account is very

straightforward and has just three salient details : (i) Dr. B.

and Taylor threw D. into the door; (ii) together, they threw D.

into her desk; and (iii) Taylor , by herself, hit D. in the head.

Notice, as well, that this statement, prepared right after the

event supposedly occurred , places Dr. B. and Ta ylor together in

the room for the entire relevant time , and they never leave the

classroom with D.

32. The video shows something else completely. Contrary

to Bermudez ' s statement, Taylor was not, and could not possibly

have been , present in the classro om before Dr. B. and D. emerge d

into the hallway , as shown at the beginning of the short clip.

We know for certain that Taylor was not there because she shows

up later in the video, entering through a door at the other end

of the hallway. Yet, in his most contemporaneous statement,

Bermudez gets this critical detail badly, undeniably wrong ,

saying that Taylor was not only there, but was an active

participant to boot . Conversely, t he only scene in the video

that could possibly raise an ey ebrow ÏÏ when someone grabs D. ' s

collar to prevent her from escaping ÏÏ is not mentioned in

Bermudez ' s first statement.

33. Given the striking irreconcilability of Bermudez ' s

first statement and the video, the undersigned wonders how

anyone looking at the v ideo on the morning of August 31, 2017,

could not have questioned Bermudez ' s veracity or inquired

further as to whether the custodian had retrieved the correct

video footage.

34. By 12:50 p.m., however, Bermudez ha d begun to back and

fill. The undersigned suspects that before writing the second

statement, Bermudez had watched the video, or been told of its

contents. Yet, t he changes to his story are so ham - fisted, how

could no one have noticed? In the revised state ment , without

explanation, Taylor is not present when Dr. B., alone, flings D.

into the door and, later, onto her desk. Now, conveniently,

Bermudez tells us that Dr. B. dragged D. out of the classroom,

and that they were gone for a couple of minutes (appr oximately

the length of the video clip). Taylor appears in time to hit D.

on the back of the head , but she must return to the classroom to

do so , as the video requires .

35. Bermudez ' s story became richer with (inconsistent)

detail s during the December 27, 2017, deposition , while omitting

key elements of his original version(s) . At hearing, forced to

acknowledge the inconsistencies, Bermudez made excuses: he was

nervous, was on vacation, wasn ' t prepared, and didn ' t have an

attorney . These are not persuasive. Think about it. Bermudez

was the only witness in a criminal trial that might have put two

people behind bars , and he was too nervous and unprepared to

testify truthfully?

36. At the final hearing, Bermudez struggled to h armonize

all of his prior statements , but the result was a hot mess. The

undersigned finds him, ultimately, to be an unreliable and

incredible witness, and his testimony is rejected as

unbelievable.

37. This leaves the district with the video, which, f or

reasons already discussed, fails to prove the charges against

Dr. B. and Taylor. Moreover, Dr. B. testified that the video

actual ly depicts events of the preceding day, which she

described at hearing. The undersigned is inclined to believe

her. 3 / The fault for the video ' s ambiguity with regard to the

date and time of its making belongs solely to the district . It

was the district ' s unilateral choice to rely on a low - quality ,

derivative " home movie " in lieu of the original surveillance

video ÏÏ a shabby copy that just happens to omit the date/time

stamp , which, incidentally, would likely belie Bermudez ' s most

recent testimony (assuming the video was truly made on the

morning of August 31, 2017). This is because there was not

enough time after 8:30 a.m. f or the so - called " headphones

incident " (see the table above) to occur and allow for Bermudez

to make it to Ms. Rodriguez ' s office by 8:40 a.m.

38. It is not necessary to make exculpatory findings of

fact based on Dr. B. ' s testimony because neither she nor Taylor

was obligated to prove her innocence.

Determinations of Ultimate Fact

39 . The district has failed to prove its allegations

against Dr. B. by a preponderance of the evidence.

40 . The district has failed to prove its allegations

against Taylor by a preponderance of the evidence.

CONCLUSIONS OF LAW

4 1 . DOAH has personal and subject matter jurisdiction in

this proceeding pursuant to s ections 1012.33(6)(a)2., 120.569,

and 120.57(1), Florida Statutes.

4 2 . A district school board employee against whom a

disciplinary proceeding has been initiated must be given written

notice of the specific charges prior to the hearing. Although

the notice " need not be set forth with the technical nicety or

formal exactne ss required of pleadings in court, " it should

" specify the [statute,] rule, [regulation, policy, or collective

bargaining provision] the [school board] alleges has been

violated and the conduct which occasioned [said] violation. "

Jacker v. Sch . B d . of Dad e C nty. , 426 So. 2d 1149, 1151 (Fla. 3d

DCA 1983)(Jorgenson, J. concurring).

4 3 . Once the school board, in its notice of specific

charges, has delineated the offenses alleged to justify

termination, those are the only grounds upon wh ich dismissal may

be p redicated . See Lusskin v. Ag . for Health Care Admin . , 731

So. 2d 67, 69 (Fla. 4th DCA 1999); Cottrill v. Dep ' t of Ins . ,

685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Klein v. Dep ' t of

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

Delk v. D ep ' t of Prof ' l Reg . , 595 So. 2d 966, 967 (Fla. 5th DCA

1992); Willner v. Dep ' t of Prof ' l Reg ., B d . of Med . , 563 So. 2d

805, 806 (Fla. 1st DCA 1990), rev. denied , 576 So. 2d 295

( Fla. 1991).

4 4 . In an administrative proceeding to suspend or dismiss

a membe r of the instructional staff, the school board, as the

charging party, 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 C nty . 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).

4 5 . The instructional staff member ' s guilt or innocence is

a que stion of ultimate fact to be decided in the context of each

alleged violation. McKinney v. Castor , 667 So. 2d 387, 389

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

(Fla. 1st DCA 1995).

4 6 . In its Notice of Specific Charges, the district

charged Dr. B. and Taylor with Misconduct in Office based on a

number of theories. The gravamen of the district ' s charges was

that, on August 31, 2017, Dr. B. and Taylor each abused,

mistreated, or otherwise behaved inappropriately towards the

student re ferred to herein as D. The parties agreed that if

the se allegations were proven, the district would have just

cause to dismiss both Respondents.

47. The district , however, failed to prove th e essential

allegation s by a preponderanc e of the evidence. T hus, all of

the charges against Respondents necessarily fail, as a matter of

fact. Due to this dispositive failure of proof, it is not

necessary to render additional conclusions of law.

RECO MMENDATION

Based on the foregoing Findings of Fact and Conclusion s of

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

enter a final order exonerating Darlene G. Taylor and Kamla C.

Bhagwandin of all charges brought against them in this

proceeding , reinstating them to their pre - dismissal positions ,

and awarding them back salary as required under section

1012.33(6)(a) .

DONE AND ENTERED this 2 8 th day of June , 201 8 , in

Tallahassee, Leon County, Florida.

S

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 8 th d ay of June , 20 1 8 .

ENDNOTES

1 / No evidence was offered, either, about how the detectives or

other school personnel examined D. for visible injuries, or if

they did. Given the nature of Bermudez's allegations, however,

the undersigned reasonably infers that such an examination must

have occurred that morning, not only for purposes of attempting

to corroborate Bermudez's claims, but also to ensure that D.

would receive prompt medical attention if needed. The

undersigned infers, further, from the absence of evidence in

this regard, that D. was found to be uninjured shortly after the

alleged incident. For what it's worth, Bermudez , the accuser ,

did not see any injuries on D.'s person.

2 / Although the fact is not directly relevant here, Dr. B. and

Taylor were acquitted of all criminal charges by jury verdicts

of not guilty.

3 / The undersigned is frankly disturbed by the district's

reliance on the derivative video because it creates the

appearance that the district doctored the original recording.

No matter how you slice it, the fact remains that material

content (the date/tim e stamp) was effectively edited out of the

primary source. Perhaps this is not as egregious as would be,

say, the digital manipulation of the visual images. On the

other hand, one could fairly argue that such distinction

reflects a difference in degree, not kind. After all, the

date/time stamp is put there for good reasons, and, as this case

shows, can provide highly relevant information. To be clear,

the undersigned is not finding that the district deliberately

altered material evidence. That said, he is putting th e

district on notice that the use of a derivative video in lieu of

actual surveillance footage is unacceptable as a general

practice and could have adverse consequences in future case s .

For example, had Respondents here objected to the video 's

admissibility, the undersigned would have excluded it.

Moreover, were it necessary to make affirmative findings of an

exculpatory nature, the undersigned would have drawn adverse

inferences against the district based on the video.

COPIES FURNISHED :

Christopher J. La Piano, Esquire

Miami - Dade County School Board

1450 Northeast 2nd Avenue, Suite 430

Miami, Florida 33132

(eServed)

Michelle A. Delancy, Esquire

DelancyLaw, P.A.

8925 Southwest 148th Street, Suite 200

Palmetto Bay, Florida 33176

(eServe d)

Branden M. Vicari, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

(eServed)

Matthew Mears , General Counsel

Department of Education

Turlington Building , Suite 1 2 44

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 Cou nty 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.