18-005014TTS Polk County School Board vs. Helena Mays Status: Closed Recommended Order on Monday, March 4, 2019.

Summary: Pet. failed to establish "just cause" to terminate teacher for misconduct in office for intentionally subjecting students to embarrassment or unreasonably exposing them to conditions harmful to their learning, physical or emotional heath, or safety.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

POLK COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 18 - 5014TTS

HELENA MAYS,

Respondent.

_______________________________/

RECOMMENDED ORDER

The final hearing in this matter was co nducted before

Andrew D. Manko , Administrative Law Judge of the Division of

Administrative Hearings, pursuant to sections 120.569 and

120.57(1), Florida Statutes (2018) , 1/ on January 4, 2019 , in

Lakeland , Florida.

APPEARANCES

For Petitioner: David R. Car michael, Esquire

Boswell & Dunlap, LLP

245 South Central Avenue

Bartow, Florida 33830

For Respondent: Anthony Duran , Esquire

Tison Law Group

9312 North Armenia Avenue

Tampa, Florida 33612

STATEMENT OF THE ISSUE

Whether just cause exists for Petitioner, the Polk County

School Board, to termina te Respondent, Helena Mays, from her

employment as a classroom teacher .

PRELIMINARY STATEMENT

On August 22, 2018 , the Associate Superintendent of the

Polk County School Board (ÐSchool BoardÑ) notified Helena Mays

of her intent to recommend that she be terminated from her

employment as a classroom teacher. The School Board recommended

termination on grounds that Ms. Mays improperly disciplined

three students by making them clean the classroom floor with a

toothbrush, which the School Board alleged constituted serious

misconduct and Ðjust causeÑ for termination .

Ms. Mays timely requested an administrative hearing to

c hallenge the termination and the School Board referred the

matter to the Division of Administrative Hearings (ÐDOAHÑ) for

assignment of an Administrative Law Judge to conduct an

evidentiary hearing under chapter 120, Florida Statutes.

The final hearing was held on January 4, 2019. The School

Board presented the testimony of three live witnesses:

(1) Tony Kirk, the School BoardÓs Dire ctor of Employee

Relations; (2) Matt P. Burkett, the Principal of Lake Alfred

Elementary School; and (3) Barry Marbutt, a S chool Board

Personnel Investigator. PetitionerÓs Exhibits 1 through 16 were

received into evidence without objection . PetitionerÓs Exhibits

1 and 2 are the School BoardÓs investigative report

(ÐInvestigative ReportÑ) and the Lake Alfred Police Department

Police Report (ÐPolice ReportÑ), on which the Investigative

Report was almost entirely based. PetitionerÓs Exhibits 6, 7,

and 8 are the deposition transcripts of the three students at

issue, and PetitionerÓs Exhibits 13, 14, and 15 are the

videotaped rec ordings of those depositions. Because each of

these exhibits constitutes hearsay and, in large part, hearsay

within hearsay, the admissibility, reliability, and weight to be

given these exhibits, if any, are analyzed below. Indeed, all

exhibits were admi tted with the caveat that any hearsay exhibits

for which no hearsay exception had been established could only

be used to corroborate or supplement other non - hearsay evidence

presented at hearing .

Ms. Mays presented no witness testimony. Instead, she

relie d on the summary of her interview with Investigator Marbutt

included in the Investigative Report. RespondentÓs Exhibits 1

and 2 were received into evidence without objection.

A one - volume T ranscript of the final hearing was filed at

DOAH on January 2 8 , 2019 . After granting Ms. MaysÓ extension

request, b oth parties timely filed Proposed Recommended Orders,

which were duly considered in preparing this Recommended Order.

FINDING S OF FACT

I. The Parties and Terms of Employment

1. T he School Board is duly constituted and charged with

the duty to operate, control, and supervise public schools

within Polk County, Florida . Art. IX, § 4(b), Fla. Const.;

§§ 1001.33 and 1001.42 , Fla. Stat. This includes the power to

discipline instructional staff, such as class room tea chers.

§§ 1012.22(1)(f) and 1012.33, Fla. Stat.

2. Ms. Mays is a classroom teacher and has been employed

by the School Board for 21 years . For the last six years, she

has been teaching at Lake Alfred Elementary School and currently

teaches se cond grade. Ms. Mays holds an instructional staff

contract pursuant to section 1012.33 .

3. At all relevant times, the terms of Ms. MaysÓ

employment were governed by a contract negotiated by the School

Board and the Polk Education Association, Inc., cal led the

Teacher Collective Bargaining Agreement (ÐCBAÑ).

4. Article 4.4 - 1 of the CBA requires progressive

discipline for teachers, which is the process of using

increasingly severe measures when an employee fails to correct a

problem after being given a reasonable opportunity to do so .

Progressive discipline is administered as follows: (1) verbal

warning, (2) written reprimand, (3) suspension without pay for

up to five days, and (4) termination. Importantly, the CBA

makes clear that Ð[p]rogressive dis cipline shall be followed,

except in cases where the course of conduct or the severity of

the offense justifies otherwise .Ñ

II. Administrative Charges

5. On August 22, 2018, the Associate Superintendent of the

School Board notified Ms. Mays that she Ðd isciplined several

students by making them scrub the classroom floor with a

toothbrushÑ and that Ð[t]his form of discipline is not an

approved method of Polk County Schools.Ñ

6. The School Board determined that Ms. MaysÓ conduct

violated two Principles of Professional Conduct for the

Education Profession and two identical provisions of a School

Board Rule, which required Ms. Mays to Ðmake reasonable effort

to protect the student from conditions harmful to learning

and/or to the studentÓs mental and/or ph ysical health and/or

safety,Ñ and not Ðintentionally expose a student to unnecessary

embarrassment or disparagement.Ñ Fla. Admin. Code R. 6A -

10.081(2) (a) 1 . & 5 .; Polk Cty. Sch. Bd. R. 3210A.1. & 5.

7. Because Ms. Mays has never been disciplined during her

21 - year career, this should have been step one of progressive

discipline. Nevertheless, the School Board alleged that it had

Ðjust causeÑ to skip progressive discipline and immediately

terminate Ms. Mays based on alleged Ðserious misconduct.Ñ

8. As f leshed out by the arguments at the hearing, the

School Board seeks to terminate Ms. Mays for disciplining three

students ÏÏ who were sent to Ms. Mays by other teachers after they

misbehaved in their respective classrooms ÏÏ by requiring each of

them on one occ asion to clean black marks off the floor with a

toothbrush.

III. The School BoardÓs Investigation and Decision to Terminate

9. The School Board became aware of the events leading to

its decision to terminate Ms. Mays on Friday, April 27, 2018,

after a parent complained to Principal Burkett that Ms. Mays

required her daughter, K.G., to clean the floor with a

toothbrush.

10. Principal Burkett spoke with Ms. Mays about the issue

that morning and she wanted to meet with the parent. During the

meeting, Ms. Mays did not deny that she had K.G. clean the floor

with a toothbrush because of her behavioral issues.

11. Though there is neither a School Board rule n or other

provision of law that explicitly prohibits the use of a

toothbrus h as a disciplinary techn ique, Principal Burkett

informed Ms. Mays during the meeting that she acted improperly.

He did not provide a formal verbal warning, however, as there

had never been reports of this kind of discipline before.

12. Principal Burkett did not believe Ms. Ma ys would use

this form of discipline again, but he remained concerned that

she may engage in other improper disciplinary techniques given

her Ðmatter - of - fact toneÑ during the meeting. However, he

allowed her to finish teaching for the day.

13. Principal Burkett reported the incident to Mr. Kirk by

leaving him a voicemail that day. Principal Burkett also

contacted the School BoardÓs investigator, Mr. Marbutt.

14. Over the weekend, the issue garnered media attention,

resulting in criminal and child abus e investigations by the Lake

Alfred Police Department (ÐLAPDÑ) and the Department of Children

and Families (ÐDCFÑ). On Monday, April 30, 2018, LAPD and DCF

interviewed several students and teachers at the s chool.

15. Investigator Marbutt also visited t he s chool that day,

but he did not sit in on the interviews. He tried to speak to

Ms. Mays, but she refused to do so at that time given the

ongoing criminal investigation. The School Board immediately

placed Ms. Mays on administrative leave with pay.

16. Over the next few weeks, LAPD and DCF investigated the

matter and interviewed students, parents, and teachers. The

School Board merely monitored th e investigation during that

time. Ultimately, LAPD and DCF recommended no criminal charges

be brought agai nst Ms. Mays and closed their investigations.

17. On June 7, 2018, Investigator Marbutt received the

Police Report and reached out to Ms. Mays to schedule an

interview. She agreed to speak with him and that interview was

conducted on June 20, 2018.

1 8. On July 31, 2018, Investigator Marbutt completed his

Investigative Report and sent it to Principal Burkett. The

contents and findings in the Investigative Report were based

almost exclusively on the Police Report and DCFÓs investigative

notes (not off ered into evidence), both of which contained only

summaries of the interviews conducted by LAPD and DCF. 2 / Other

than Ms. Mays, Investigator Marbutt spoke to no students,

parents, or other teachers.

19. Based on the Police Report, DCFÓs investigative n otes,

and his interview of Ms. Mays, Investigator Marbutt believed

there was sufficient evidence to show that Ms. Mays violated

School Board r ules and the Principles of Professional Conduct.

20. On August 22, 2018, based on Investigator MarbuttÓs

invest igation, the Associate Superintendent notified Ms. Mays

that she was suspended without pay and her termination would be

recommended at the next School Board meeting in October 2018.

IV. Evidence Regarding the Incidents Underlying Termination

21. Pursuan t to School policy, teachers can remove

disruptive students from their own classrooms and send them to

an adjoining teacherÓs room to be disciplined. The two teachers

usually communicate as to why the student is being sent to the

otherÓs room, but the stu dentÓs actual teacher determines how

long they stay before being allowed to return.

22. Ms. Mays rarely has to send her own students to other

rooms for discipline. In her classroom, she uses varied

techniques depending on the situation. She issues war nings,

uses clip and champs systems, and may require students to write

apology notes. Sometimes she imposes a time out during which

the students perform a writing activity. If the students

continue to misbehave, she may send them to the office. Ms.

Mays documents the discipline in the studentÓs agenda and calls

their parents.

23. Ms. Mays thought only 12 students were sent to her by

other teachers for discipline. She would typically require

these students to write apology notes for their misbehavior and

also gave them a chance to do their class work. If they

oblige d , they continue d to do that until their teacher asked

them to return. But if the students refuse d and disrupt ed her

class after repeated warnings, she used other tactics as a last

resort.

24. In four isolated instances over the last school year

(though the School Board only proceeded on three such incidents,

one per student ) , Ms. Mays required three students to clean

black marks off the classroom floor after they refused to follow

repea ted warnings to do their work and instead disrupted her

class. Ms. Mays gave the students the option to pick from three

utensils : a scrubber, toothbrush, or magic eraser.

25. According to Ms. Mays, the students did not clean the

floor all day, but onl y for about 15 minutes. Even then, the

students spent time sitting on the floor just holding the

cleaning utensil. She otherwise would try to get them to do

their work.

26. Ms. Mays never had to discipline her own students in

this fashion and, as to t he visiting students, she only used the

tactic when she ran out of other options after repeated

problems. She never withheld food from the students during this

time and never made them scrub the floor of the bathroom. The

point was to make the students u nderstand the consequences for

not doing their class work.

27. The three students at issue , K.G., D.G., and C.C. ,

gave sworn testimony in videotaped depositions . 3 / The students

were only eight to nine years old and had some difficulty

confirming that t hey knew the difference between a truth and a

lie. They also had trouble providing consisten t verbal

responses to questions, such as clearly and specifically

detailing the events and the duration of time. This is

understandable given their young age and possible nerves, but it

renders their testimony less persuasive and credible on some of

the important issues.

28. According to K.G.Ós deposition, her teacher,

Ms. Schinleber, sent her to Ms. MaysÓ classroom for talking in

class . K.G. said that Ms. Mays made her clean the floor with a

ÐbigÑ toothbrush from the morning until she went home.

29. Importantly, K.G. never testified that she was in

pain, suffered an injury, or felt embarrassed while cleaning the

floor. Ms. Mays confirmed that K.G. never comp lained to her

about these issues. Investigator Marbutt had no knowledge of

K.G. seeing a doctor after the incident. Thus, there was no

evidence on which to base a finding of fact that K.G. suffered

pain, harm, or embarrassment as a result of this inciden t . 4 /

30. As to the duration of time, the undersigned finds

K.G.Ós testimony that she had to scrub the floor all day to lack

credibility, even if it were not hearsay . This is in part

because of K.G.Ós demeanor during her deposition, the lack of

clarity with which she could recall the details or timing of the

events, her exaggeration about the size of the toothbrush, and

her concession that she actually did not scrub all day because

she went to lunch. The undersigned finds that the persuasive

and credib le weight of the evidence establishes that K.G. was in

and out of Ms. MaysÓ room for much of the day, but scrubbed the

floor for no more than 15 minutes. 5 /

31. According to D.G.Ós deposition, his teacher,

Ms. Hermes, sent him to Ms. MaysÓ classroom severa l times for

misb ehaving and being disrespectful .

32. Most recently, Ms. Hermes sent him after he got mad

and refused to do his math work; Ms. Mays required him to do his

work in the back of the room. Prior to that, on some unknown

day, Ms. Hermes sent him after lunch for being disrespectful ;

Ms. Mays made him clean five to seven black marks off the floor

with a sponge. The School Board confirmed that neither of these

two incidents should be considered , as only those involving a

tooth brush were relevant to this proceeding .

33. As to the relevant incident here, D.G. testified that

Ms. Hermes sent him to Ms. Mays for being disrespectful and she

made him scrub foot - long black marks off the floor with a

regular - size toothbrush until the end of the day.

34 . Importantly, D.G. never testified that he was in pain,

suffered an injury, or felt embarrassed. Investigator Marbutt

had no knowledge of D.G. seeing a doctor after the incident.

Thus, there was no evidence on which to base a finding of fact

that D.G. suffered pain, harm, or embarrassment as a result of

this incident. 6 /

35. As to how long D.G. scrubbed the floor, his testimony

was unclear. D.G. could not recall the date or time of day that

the incident occurred, except that it happened after lunch.

A lthough he said he scrubbed the floor until the end of the day,

it is impossible to determine how long that lasted since he

could not recall when in the afternoon he went to Ms. MaysÓ

classroom. The undersigned believes the persuasive and credible

weight of the evidence establishes that D.G. was in Ms. MaysÓ

room for a portion of the afternoon, but that the scrubbing

lasted no more than about 15 minutes as confirmed by Ms. Mays.

36. In testifying about the three times he was sent to

Ms. MaysÓ classroom, D.G. got confused about the details and

when they occurred. He initially stated that Ms. Mays made him

scrub the toilet and the floor with a toothbrush, but later said

she only made him scrub marks off the floor. He said he had to

scrub the floor with a toothbrush twice, but later testified

that he used a sponge on one of those occasions. D.G.

apparently told an officer that he had to clean the entire

floor, bathroom, and hallway, but confirmed in his deposition

that he only had to clean marks off the cl assroom floor. D.G.Ós

lack of clarity as to the details, his demeanor during his

deposition, the difficulty he had in being sworn in, along with

the inconsistencies between his testimony and the statements he

made to law enforcement, render much of his te stimony on the

critical issues herein not credible (even if it were not

hearsay) .

37. According to C.C.Ós deposition, Ms. Schinleber sent

him to Ms. MaysÓ classroom after misbehaving and Ms. Mays

required him to clean marker stains off the floor with a

washcloth. C.C. did not know how long he clean ed the floor, but

said it was less than an entire class and that he was permitted

to go to lunch.

38. Importantly, C.C. never testified that he felt

embarrassed while cleaning the floor. C.C. said his hands got

ÐblisteryÑ and, though he tried to tell Ms. Mays that he was

tired and show her his hands, she was teaching in the front of

the room and yelled back to him to scrub harder. C.C. confirmed

that his hands felt the same as when he wrote too much.

39. At the end of the deposition, C.C.Ós mother explained

that C.C. has an immune deficiency disease where his hands cramp

up. What upset her the most was that C.C. has an IEP and

teachers should know that his hands cramp up when writing,

cutting, or using them too much.

40. Aside from the fact that this explanation was not

under oath, the School Board presented no testimony from C.C.Ós

mother, Ms. Schinleber, or any witness who could offer details

about the IEP or Ms. MaysÓ knowledge thereof. The Scho ol Board

failed to question Principal Burkett or Investigator Marbutt

about the issue. Without evidence that Ms. Schinleber told

Ms. Mays of the IEP, the only reasonable inference is that Ms.

Mays was un aware of it because she was not C.C.Ós regular

teach er.

41. The undersigned does not discount that C.C. testified

hearsay testimony that his hands hurt , but the persuasive and

credible evidence establishes that the pain was no worse than

when he wrote too much. C.C. also never went to the School

nurse or saw a doctor as a result of this incident.

ULTIMATE FINDINGS OF FACT

42. It is well established under Florida law that

determining whether alleged misconduct violates a statute or

rule is a question of ultimate fact to be decided by the trier -

of - fact base d on the weight of the evidence . 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). Thus, determining

whether the alleged misc onduct violates the law is a factual,

not legal, inquiry.

43. Ð The School Board bears the burden of proving by a

preponderance of the evidence each element of the charged

offense which may warrant dismissal .Ñ Cropsey v. Sch. Bd. , 19

So. 3d 351 , 355 (Fla. 2d DCA 2009) (citing Dileo v. Sch. Bd. of

Dade C ty. , 569 So. 2d 883 (Fla. 3d DCA 1990) ) . P reponderance of

the evidence is defined as Ðthe greater weight of the evidence,Ñ

or evidence that Ðmore likely than notÑ tends to prove a certain

proposition. S. F la. Water Mgmt. v. RLI Live Oak, LLC , 139

So. 3d 869, 872 (Fla. 2014 ) .

44. The School Board contends that Ðjust causeÑ exists to

terminate Ms. Mays because she improperly required K.G., D.G.,

and C.C. to clean the floor with a toothbrush on one occasion

each, which constituted Ðmisconduct in office . Ñ £ 1012.33(1)(a) ;

Fl a. Admin . Code R . 6A - 5.056 (2)(b), (c). The School Board

alleges two violations of Ð the Principles of Professional

Conduct for the Education Profession in Florida as adopted in

Rule 6A - 10.0 81, F.A.C. ,Ñ and two identical violations of

Ð adopted school board rules .Ñ

45. First, the School Board alleges that Ms. May s breached

her obligations to K.G., D.G., and C.C. by Ðintentionally

expos[ing] [them] to unnecessary embarrassment or

disparageme nt.Ñ Fla. Admin. Code R. 6A - 10.081(2)(a)5.; Polk

Cty. Sch. Bd.

R. 3210A.5. Second, the School Board alleges that Ms. Mays

breached her obligations to K.G., D.G., and C.C. by failing to

Ðmake reasonable effort to protect [them] from conditions

harmful to learning and/or to [their] mental and/or physical

health and/or safety.Ñ Fla. Admin. Code R. 6A - 10.081(2)(a)1.;

Polk Cty. Sch. Bd. R. 3210A.1.

46. There is no dispute that Ms. Mays required K.G. and

D.G. to each clean the floor with a toothbrush. Thus, t he

relevant issue as to these students is whether the School Board

proved by a preponderance of the evidence that this disciplinary

tactic constituted Ðmisconduct in office.Ñ

47. However, as to C.C., the evidence did not establish

that Ms. Mays required him to clean the floor with a toothbrush.

C.C. testified that he cleaned the floor with a washcloth and

had no recollection of ever using a toothbrush. Because the

School BoardÓs termination notice focused solely on the use of a

toothbrush as an imprope r disciplinary tactic, it cannot

belatedly allege now that requiring C.C. to clean the floor with

a washcloth constituted misconduct in office. In fact, a

washcloth is more akin to a sponge, which the School Board does

not contend was misconduct given its decision to proceed only on

the instances involving a toothbrush. Nevertheless, the

undersigned will evaluate the evidence as it relates to C.C. in

the same manner as the other two students.

48. Based on the weight of the evidence detailed above ,

the Sc hool Board failed to establish by a preponderance of the

evidence that Ms. Mays exposed the students to unnecessary

embarrassment or disparagement, much less that she did so

intentionally. None of the three students testified that they

felt embarrassed or disparaged, and Investigator Marbutt did not

believe that Ms. Mays intentionally tried to embarrass or harm

them. At most, Investigator Marbutt agreed that there were

Ðpotential violations for creating physical or emotional harm

and potentially humiliati ng the students,Ñ but he never

explained how the evidence substantiated that ÐpotentialÑ

belief. Principal Burkett also confirmed that Ms. Mays never

said she intended to humiliate or inflict pain on the students.

In sum , the credible weight of the evide nce does not establish

that Ms. Mays violated r ule 6A - 10.081(2)( a)5. or School Board

r ule 3210 A.5.

49. Likewise, based on the weight of the evidence

discussed above, the School Board did not establish by a

preponderance of the evidence that Ms. Mays unrea sonably failed

to protect the students from conditions harmful to learning ,

their mental and/or physical health , or their safety . No

credible, competent evidence was presented that this

disciplinary tactic unreasonably exposed the students to any

such har mful conditions, much less a safety hazard. K.G. and

D.G. offered no testimony that they suffered pain while being

disciplined in this manner and, though C.C. indicated that his

hands were sore, it was the same pain he experienced when he

wrote too much. Principal Burkett testified that the School

preferred a more positive method of discipline, but neither he

nor any other witness explained how these three isolated events

that were not shown to last more than 15 minutes unreasonably

harmed the students. In short, the credible weight of the

evidence does not support the allegation that Ms. Mays violated

Rule 6A - 10.081(2)( a ) 1. or School Board Rule 3210 A.1.

50. Accordingly, the undersigned finds as a matter of

ultimate fact that the School Board did not s how by a

preponderance of the evidence that it had Ðjust causeÑ to

terminate Ms. Mays. § 1012.33(1)(a), Fla. Stat .

CONCLUSIONS OF LAW

51. DOAH has jurisdiction over the subject matter and

parties pursuant to sections 120.569, 120.57(1), and

1012.33(6)(a) 2.

52. T he School Board is duly constituted and charged with

the duty to operate, control, and supervise public schools

within Polk County, Florida . Art. IX, § 4(b), Fla. Const.;

§§ 1001.33 and 1001.42 , Fla. Stat. This includes the power to

discipline instructional staff, such as classroom teachers.

§§ 1012.22(1)(f) and 1012.33, Fla. Stat.

53. Ms. Mays is a classroom teacher and her employment

with the School Board is governed by an instructional staff

contract. §§ 1012.01(2)(a) and 1012.33 , Fla. Stat . The terms

of Ms. MaysÓ employment with the School Board are also governed

by the CBA.

54. T he School Board may suspend or dismiss Ms. Mays

during the term of her employment contract , but only for Ðjust

cause.Ñ §§ 1012.33(1)(a) and (6)(a), Fla. St at.

55. Similarly, a rticle 4.4 of the CBA provides that

teachers cannot be Ðdisciplined, reprimanded, suspended,

terminated or otherwise deprived of fringe benefits or

contractual rights during the term of his/her contract without

just cause.Ñ The CBA de fines j ust cause as a Ðfair and

reasonable basis for disciplinary action up to and including

termination, as defined in applicable Florida Statutes specific

to the contract under which the employee is employed.Ñ

56. Section 1012.33(1)(a) lists the instanc es that qualify

as Ðjust cause , Ñ including Ðmisconduct in office.Ñ

57. Pursuant to statutory authority, the State Board of

Education promulgated rule 6A - 5.056, which provides:

Ð Just causeÑ means cause that is legally

sufficient. Each of the charges upon which

just cause for a dismissal action against

specified school personnel may be pursued is

set forth in sections 1012.33 and 1012.335,

F.S. In fulfillment of these laws, the

basis for each such charge is hereby

defined:

* * *

(2) 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 adopted in Rule 6A -

10.081, F.A.C.;

(c) A violation of the adopted school board

rules;

5 8. As to the Principles of Professional Conduct,

rule 6A - 10.081 provides in pertinent part:

(2) Florida educators shall comply with the

following disciplinary principles.

Violation of any of these principles shall

subject the individual to revocation o r

suspension of the individual educator's

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 student's mental

and/or physical health and/or safety.

* * *

5. Shall not intentionally expose a student

to unnecessary embarrassment or

disparagement.

59. Mirroring the Principles of Prof essional Conduct,

School Board r ule 3210 prov ides as follows:

District instructional staff members shall

comply with the following disciplinary

principles. Violation of any of these

principles shall subject the individual to

revocation or suspension of the individual

instructional staff memberÓs cer tificate, or

the other penalties as provided by law.

A. Obligation to the student requires that

the District instructional staff member

shall:

1. make a reasonable effort to protect the

student from conditions harmful to learning

and/or to the student' s mental and/or

physical health and/or safety.

* * *

5. Shall not intentionally expose a student

to unnecessary embarrassment or

disparagement.

60. As discussed above, the School Board has Ð the burden

of proving by a preponderance of the evide nce each element of

the charged offense which may warrant dismissal .Ñ Cropsey , 19

So. 3d at 355 . P reponderance is defined as Ðthe greater weight

of the evidence,Ñ or evidence that Ðmore likely than notÑ tends

to prove a certain proposition. RLI Live Oak , LLC , 139 So. 3d

at 872.

61. The School Board contends that just cause exists to

terminate Ms. Mays because she (1) intentionally exposed the

students to unnecessary embarrassment or disparagement ; and

(2) failed to make a reasonable effort to protect th e students

from conditions harmful to learning and to their mental and

physical health and safety.

62. Based on the findings of fact and ultimate fact above,

the School Board failed to establish by the greater weight of

the evidence that Ms. Mays intent ionally exposed the students to

unnecessary embarrassment or disparagement, or unreasonably

exposed the students to conditions harmful to their learning ,

mental or physical health, or safety , in violation of rule 6A -

10.081(2)( a ) 1. and 5. or School Board r u le 3210 A.1. and 5 .

63. Thus , the undersigned concludes that the School Board

lacked Ðjust causeÑ to terminate Ms. Mays. Because the School

Board improperly suspended Ms. Mays without pay on April 30,

2018, it should immediately reinstate Ms. Mays as a cl assroom

teacher and provide her with back pay from that date forward.

64. Although the undersigned has concluded that the School

Board lacked Ðjust causeÑ to discipline Ms. Mays, the School

BoardÓs request to terminate would have been an inappropriat e

penalty even had the violations been proven.

65. In determining the appropriate level of discipline,

the School BoardÓs progressive discipline policy must be

consulted. See School Bd. of Seminole C nty. v. Morgan , 582 So.

2d 787, 788 - 89 (Fla. 5th DCA 1991) (Ð[C] ontinuing contract

teachers are afforded certain safeguards by law and the

administrative rules promulgated by the State Board of

Education. Collective bargaining agreements may operate within

the penumbra of those statutes and rules .Ñ).

66. A rticle 4.4 - 1 of the CBA provides as follows:

Progressive discipline shall be followed,

except in cases where the course of conduct

or the severity of the offense justifies

otherwise. Unusual circumstances may

justify suspension with pay. Progressive

disc ipline shall be administered in the

following steps:

(1) verbal warning in a conference with the

teacher. (A written confirmation of a

verbal warning is not a written reprimand);

(2) dated written reprimand following a

conference;

(3) suspension wit hout pay for up to five

days by the Superintendent ; and

(4) termination.

ÐLetters of ConcernÑ are not a form of

discipline.

67. The plain language of the CBA limits the School

BoardÓs discretion to impose the ultimate sanction of

termination to two cir cumstances: (1) where an employee has

previously received a verbal warning, written reprimand, and a

suspension of up to five days without pay; or (2) where the

course of conduct or severity of the offense justifies

otherwise. If neither circumstance is met, termination is not a

permissible disciplinary action.

68. The School Board agrees that it did not follow

progressive discipline. Instead, it contends that progressive

discipline is only a recommendation and, regardless, the

severity of this offense is sufficient to meet the exception. 7 /

69. As to the School BoardÓs contention that progressive

discipline is just a recommendation, the CBA is to the contrary.

Article 4 - 4.1 explicitly provides that progressive discipline

Ðshall be followedÑ subject o nly to the exception expressed

therein. This bargained - for language is no mere recommendation.

See Collins v. School Bd. of Dade C n ty. , 676 So. 2d 1052, 1053

(Fla. 3d DCA 1996) (recognizing that school boards are Ð bound by

the terms of the collective bar gaining agreement,Ñ including

progressive discipline ); Bell v. School Bd. of Dade C n ty. , 681

So. 2d 843, 844 - 45 (Fla. 3d DCA 1996) (same).

70. As to whether Ms. MaysÓ conduct was severe enough to

skip progressive discipline, that is a question of ÐÒultima te

factÓ best left to the trier of fact under these circumstances .Ñ

Costin v. Fla. A & M Univ. Bd. of Trs. , 972 So. 2d 1084, 1086 - 87

(Fla. 5th DCA 2008).

71. The CBA does not define what Ðcourse of conductÑ or

ÐoffenseÑ is severe enough to meet the exc eption and the School

Board presented no evidence on this issue. Because this is an

exception to the general rule, it must mean something more

egregious than the standard types of misconduct defined in rule

6A - 5.056 for which progressive discipline must b e followed.

72. Moreover, the CBAÓs definition of Ðjust ca u seÑ

requires that there be a Ðfair and reasonable basis for

disciplinary action.Ñ This means that the discipline must be

both fair and reasonable based on the severity of the offense,

particula rly given the requirement for progressive discipline.

See Bell , 681 So. 2d at 844 - 45 (remanding for issuance of lesser

sanction given failure to follow progressive discipline and

where CBA required that Ðdegree of discipline shall be reasonably

related to the seriousness of the offense and the employee's

recordÑ and teacher had discipline - free career for over 11

years); Collins , 676 So. 2d at 1053 (remanding for issuance of

lesser sanction where six - month suspension failed to follow

progressive discipline, as required by CBA , and was not

reasonably related to the seriousness of the offense). 8 /

73. Based on the findings of fact above, the undersigned

concludes that Ms. MaysÓ actions , even if deemed Ðmisconduct in

office , Ñ would not justify the ultimate sanc tion of termination.

The undisputed evidence confirms that Ms. Mays has never been

disciplined during her 21 - year career. She did not

intentionally try to embarrass, humiliate, or inflict pain on

the students; instead, she attempted to persuade them to d o

their work and be respectful in their own classrooms. She was

forthcoming when questioned by Principal Burkett, she met with

the complaining parent, and she agreed she would never engage in

such activity again, even though the School Board had no

explic it policy prohibiting this form of discipline.

74. The undersigned also finds it relevant that Ms. Mays

only used this form of discipline as a last resort and, notably,

never had to use th e t actic with her own students. Ms. MaysÓ

ethical and profession al obligations to teach apply primarily to

her own students, for whom she bears the ultimate responsibility

for their learning, development, and growth. The fact that she

never needed to reach this last resort punishment with her own

students is a testame nt to her abilities as a teacher.

75. For all these reasons, the undersigned finds that

termination would be t oo severe a penalty, even if the

violations had been prove n . Instead, the proper starting place

would have been at the first step of progressi ve discipline.

RECOMMENDATION

Based on the foregoing Findings of Fact , Ultimate Findings

of Fact, and Conclusions of Law, it is RECOMMENDED that

Petitioner, Polk County School Board, enter a final order

dismissing the charges against Ms. Mays, reinstatin g her

employment as a teacher, and awarding her back pay to the date

on which she was first suspended without pay.

DONE AND ENTERED this 4 t h day of March , 2019 , in

Tallahassee, Leon County, Florida.

S

ANDREW D. MANKO

Admi nistrative 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 Heari ngs

this 4th day of March , 2019 .

ENDNOTE S

1/ All rule and stat utory references are to the 2018 versions

unless otherwise indicated.

2 / The Investigative Report and the Police Report both

constitute hearsay. Though hearsay is admissible in

adminis trative proceedings, it can only be used to explain or

supplement other admissible evidence; a finding of fact cannot

be based on hearsay alone unless that evidence would be

admissible in a civil action over objection. § 120.57(1)(c),

Fla. Stat.; Fla. Adm in. Code R. 28 - 106.213(3); see also Wark v.

Home Shopping Club , 715 So. 2d 323, 324 (Fla. 2d DCA 1998)

(holding that hearsay documents could not be used to support a

finding of fact where no other supporting evidence had been

admitted and the proponent of the hearsay failed to establish

the predicate necessary to admit the evidence under the business

records exception); Harris v. Game & Fresh Water Fish CommÓn ,

495 So. 2d 806, 808 - 09 (Fla. 1st DCA 1986) (same).

The School Board failed to establish how th ese hearsay

reports were admissible over objection in a civil action.

However, there are only two exceptions that could apply Ï public

records and business records. Under section 90.803(8), Florida

Statutes, two types of public records are except ed from th e

hearsay rule: (1) those that set forth the activities of the

agency, and (2) those that set forth Ðmatters observedÑ that are

based on Ða public officialÓs first - hand observation of an

event.Ñ Yisrael v. State , 993 So. 2d 952, 959 (Fla. 2008).

Althoug h an additional exception exists under federal law for

records ÐÒsetting forth factual findings resulting from an

investigation made pursuant to authority granted by law , ÓÑ

public records Ðthat rely on information supplied by outside

sources or that contai n evaluations of statements of opinion by

a public official are inadmissibleÑ under Florida law. Lee v.

Dep't of Health & Rehab . Servs. , 698 So. 2d 1194, 1201 (Fla.

1997) (quoting Charles W. Ehrhardt, Fla. Evidence § 803.18d

(1996 ed.)). Similarly, under section 90.803(6), a business

record is admissible under an exception to the hearsay rule, but

only if the supplier of the information in the report is Ðmade

by a person with knowledge who was acting within the regular

course of the business activity.Ñ H arris , 495 So. 2d at 808 - 09.

Here, the Police Report is based entirely on officersÓ

summaries of interviews of potential witnesses and the

Investigative Report is based on those same summaries along with

Investigator MarbuttÓs summary of his interview of Ms. Mays.

Because the matters in both reports are not within the

investigatorsÓ first - hand observations and were supplied inst ead

by individuals not acting within the scope of the business ,

neither report would be admissible over objection in a civil

actio n. Lee , 698 So. 2d at 1201; Harris , 495 So. 2d at 808 - 09

(holding that investigative reports summarizing witness

interviews are not admissible under the business records

exception to the hearsay rule); Rivera v. Bd. of Trs. of Tampa's

Gen. Empl. Ret. Fund , 189 So. 3d 207, 212 - 213 (Fla. 2d DCA 2016)

(holding that Ðpolice reports and the transcripts of the witness

interviews were clearly hearsay that would not be admissible

over objection in civil actions,Ñ particularly where none of the

victims testified at the hearing); M .S. v. Dep't of Child . &

Fam . , 6 So. 3d 102, 104 (Fla. 4th DCA 2009) (holding that DCF

investigative reports were inadmissible hearsay Ðbecause the

records contained witness statements made to investigators, the

substance of which was not w ithin the personal knowledge of the

agency employeeÑ); Reichenberg v. Davis , 846 So. 2d 1233, 1233 -

1234 (Fla. 5th DCA 2003) (holding that DCF investigative

reports, and reports of the statements witnesses made to

investigators, were inadmissible under the public records

exception because the witnesses statements contained therein

were hearsay within hearsay and not subject to an exception).

Aside from the documents themselves, both reports contain

summaries of out - of - court statements of students, parents, and

teachers to officers, which constitute double and triple hearsay

that would not be admissible over objection in a civil action.

See §§ 90.805 & 120.57(1)(c), Fla. Stat.; Holborough v. State ,

103 So. 3d 221, 223 (Fla. 4th DCA 2012); J.B.J. v. State , 17

So. 3d 312, 319 (Fla. 1st DCA 2009). Except for the depositions

of the three students at issue, none of the individuals who made

the statements to the officers testified. The officers who

conducted the investigations did not testify and, though

Investiga tor Marbutt testified, he based his testimony and

report on the officersÓ interviews because he never spoke to any

of the students, parents, or witnesses except for Ms. Mays .

The only portion of either report that would be admissible

over objection in a civil action is Ms. MaysÓ statement to

Investigator Marbutt, which is summarized in the Investigative

Report. The School Board relied on Ms. MaysÓ statement to prove

the alleged violations and establish that she admitted to

disciplining the students in t his manner. Because that

statement is a party admission that would be admissible over

objection in a civil action, it may be used to make findings of

fact here . §§ 90.803(18) & 120.57(1)(c), Fla. Stat.

In sum, the Investigative Report and the Police Repo rt, and

the out - of - court statements summarized therein (except for

Ms. MaysÓ admission), cannot alone be used to make a finding of

fact. The weight to be given such evidence, to the extent any

statements therein me rely explain or supplement other admissib le

evidence, is left to the undersignedÓs discretion.

3 / The transcripts and video recordings of the depositions of

the three students at issue constitute hearsay that would not be

admissible over objection in a civil action. In a civil action,

deposit ions may be admitted either under Florida Rule of Civil

Procedure 1.330(a)(3) or as an exception to the hearsay rule for

former testimony under the Florida Evidence Code. See Bank of

Montreal v. Estate of Antoine , 86 So. 3d 1262, 1264 (Fla. 4th

DCA 2012). Because the School Board failed to establish that

the three students were ÐunavailableÑ to testify live at the

hearing, the depositions are not admissible under rule

1.330(a)(3) or section 90.804(2)(a), Florida Statutes. And,

though section 90.803(22) p rovides that Ðformer testimonyÑ taken

in the same case where the party against whom the evidence is

offered had a similar motive to develop the evidence is

admissible regardless of unavailability, that is an improper

ground on which to admit a deposition i n an administrative

hearing. See Grabau v. Dep't of Health , 816 So. 2d 701, 709

(Fla. 1st DCA 2002) (holding that admission of deposition under

section 90.803(22) was improper in an administrative proceeding,

in part because its adoption unconstitutionall y infringed on the

Florida Supreme CourtÓs exclusive authority over court

procedure); see also In re Amendments to the Fla. Evidence Code ,

782 So. 2d 339, 342 (Fla. 2000) (refusing to adopt section

90.803(22) to the extent it was procedural due to its brea dth,

inconsistency with federal law and evidence codes in other

states, and concerns about its constitutionality).

Thus, the depositions and the hearsay contained therein

cannot alone be used to make a finding of fact. But , because

much of the depositi on testimony supplement ed or explain ed other

admissible evidence, they have been considered and assigned the

weight deemed appropriate under the circumstances.

4 / It is true that Principal Burkett testified that K.G.Ós

mother said her daughter complain ed of back pain, and that such

complaints were reiterated in the Investigative Report and the

Police Report. However, those out - of - court statements

constitute hearsay two and three times over and no hearsay

exception has been established. The School Boar d did not

present the testimony of K.G.Ós mother or any other witness who

could testify as to K.G.Ós apparent complaints. Because K.G.

never testified that she suffered any pain, harm, or

embarrassment during her deposition (which is also hearsay,

conflic ting with the other hearsay). T here is no admissible

evidence to support a finding of fact with regard to back pain

or any pain .

Regardless, the hearsay complaints lack reliability. Not

only were they hearsay within hearsay, as reported by K.G.Ós

mothe r and Principal Burkett based on their recollections of

what the other person told them, but Ms. Mays confirmed that

K.G. did not scrub the floor for more than 15 minutes and never

complained to her of back pain. And, though the Police Report

indicates th at K.G.Ós mother reported that K.G. complained to

her of back pain, K.G.Ós teacher, Ms. Schinleber, told an

officer (neither of whom testified at the hearing) that K.G.

never complained when she came back to her room that afternoon.

5 / It also bears emph asizing that Ms. Schinleber told the

officer that she sent K.G. to Ms. MaysÓ room around 8:30 a . m . ,

K.G. returned for Ð specials, Ñ went back to Ms. MaysÓ room around

10:30 a . m . , and never comp lained when she returned around

2:45 p . m.

6 / The Police Repor t contains out - of - court statements made by

D.G.Ós mother to an officer that D.G. told her he had to scrub

the floor with a toothbrush in front of other children, who

laughed at him and hurt his feelings, and that he had to scrub

the toilet with a toothbrus h, which she believed was a health

hazard. However, as discussed in endnote 2 , infra , the Police

Report and the statements therein are hearsay (and hearsay

within hearsay) for which no exception applies. And,

regardless, the statements lack credibility , as D.G. never said

he was embarrassed in his deposition and testified that he never

had to clean the toilet.

7 / The School Board also argues that article 16.5 - 2 of the CBA

authorizes it to skip progressive discipline and immediately

terminate a teacher anytime it believes Ðjust causeÑ exists to

discipline. This argument is inconsistent with the CBAÓs

language and would render the explicit requirement for

progressive discipline meaningless.

The provisions of article 16, titled ÐTeacher Dismissal

Procedu re,Ñ create processes for dealing with performance

evaluations and deficiencies. For continuous contract teachers,

articles 16.1 - 16.3 apply the NEAT procedure Ï Notice, Explanation,

Assistance, and Time Ï to handle teacher performance deficiencies.

For profe ssional service contract teachers, like Ms. Mays,

article 16.4 provides a distinct process for notifying,

evaluating, and remedying a teacherÓs performance deficiencies.

In that context, article 16.5 creates exceptions to those

performance evaluation proc edures, including article 16.5 - 2,

which states that Ð[t]his procedure does not prohibit immediate

suspension and subsequent dismissal for just cause as outlined

in § 1012.79, Florida Statutes, or the use of the Florida

Education Practices Commission [(ÐCom missionÑ)] procedures.Ñ

Section 1012.79 creates the Commission and details its

makeup and authority, including the right to revoke a teacherÓs

certificate if the teacher violates one of its Principles of

Professional Conduct. § 1012.79(7)(b), Fla. Stat .;

§ 1012.795(1)(j), Fla. Stat. However, section 1012.79 says

nothing about Ðjust causeÑ or a School BoardÓs authority to

discipline a teacher based on a finding thereof. And, though

revocation of a teacherÓs certificate could be grounds for

immediate d ismissal by the School Board, there is neither an

allegation nor evidence establishing that the Commission revoked

Ms. MaysÓ teaching certificate in this case.

Accordingly, article 16.5 - 2 plainly creates an exception to

following certain performance defi ciency procedures if there are

grounds for immediate suspension and termination based on the

actions or procedures of the Commission. It does not, however,

create a general overriding exception to following progressive

discipline. Indeed, if the School B oard could jump to

termination any time there is Ðjust causeÑ to discipline, the

explicit requirement that it follow progressive discipline Ï the

bargained Ï for remedy in article 4.4 - 1 of the CBA Î would be

rendered meaningless.

8 / Although not admitted into evidence, the undersigned notes

that School Board Rule 3139.01, which is applicable to

instructional teachers like Ms. Mays, provides that: ÐThe

School Board retains the right and the responsibility to manage

the work force. When the discipline of a staff member becomes

necessary, such action shall be in proportion to the employee's

offense or misconduct, consistent with appropriate procedural

and substantive due process, State law, and/or the specific

provisions of any applicable collective bargaini ng agreement.Ñ

COPIES FURNISHED:

Anthony Duran, Esquire

Tison Law Group

9312 North Armenia Avenue

Tampa, Florida 33612

(eServed)

Donald H. Wilson, Jr., Esquire

Boswell & Dunlap, LLP

245 South Central Avenue

Bartow, Florida 33830

(eServed)

David R. Carmichael, Esquire

Boswell & Dunlap, LLP

245 South Central Avenue

Bartow, Florida 33830

(eServed)

Richard Corcoran

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 040 0

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Jacqueline Byrd, Superintendent

Polk County School Board

1915 South Floral Avenue

Post Of fice Box 391

Bartow, Flordia 33831

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.