18-005339TTS Miami-Dade County School Board vs. Tirso Valls Status: Closed Recommended Order on Tuesday, March 12, 2019.

Summary: Respondent's dismissal from employment by the School Board was warranted for misconduct in office and incompetency based on a fitness for duty assessment made by a psychologist finding that he was not qualified to return to his position.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 18 - 5339TTS

TIRSO VALLS,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case was heard before A dmini strative Law Judge

Robert L. Kilbride, of the Division of Administrative Hearings,

on December 20, 2018, by video teleconference with sites in

T allahassee and Miami , Florida.

APPEARANCES

For Petitioner: Christopher J. La Piano, Esquire

Mi ami - Dade County School Board

1450 Northeast Second Avenue, Suite 430

Miami, Florida 33132

For Respondent: Tirso Valls , pro se

2811 Southeast 17 th Avenue, Unit 100

Homestead, Florida 33 035

STATEMENT OF THE ISSUE

Whether just cause exists t o uphold the dismissal of

Tirso Valls ( " Respondent " ) from employ ment with the Miami - Dade

County School Board ( " School Board " or "Petitioner" ).

PRELIMINARY STATEMENT

On August 15, 2018, Petitioner took action to suspend

without pay and dismiss Respondent from employment.

Respondent timely requested a hearing , pursuant to

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

was referred to the Division of Admin istrative Hearings to

condu ct a hearing.

On October 22, 2018 , Petitioner, as ordered, filed a Notice

of Specific Charges which outlined the charges against

Respondent in more detail.

On December 12, 2018 , the School Board filed Petitioner ' s

Notic e of Admitting Business Re cord v ia Declaration. This

filing, and the accompanying documents, complied with the

applicable provisions of the Florida E vidence Code, c hapter 90,

Florida Statutes, and suppor ted the admissibility of

Dr. Theodora "Teddy" Tarr ' s c onfi dential a ssessment r eport

at the final hearing.

A final hearing was held on December 20, 2018. 1/ Petitioner

presented the testimony of Principal Adrienne Wright - Mullings

("Wright - Mullings") and Helen Pina ("Pina") . Petitioner ' s

Exhibits 1 through 25 were admitted into evid ence.

Respond ent testified on his own behalf and offered no other

witnesses. Respondent presented three exhibits on the morning

of the final hearing. Petitioner objected to Respondent ' s

Exhibit 1. The obje ction was sustained and Respondent's

Exhib it 1 was not admitted. The remaining two exhibits were not

offered into evidence by Respondent.

The Transcript of the hearing was filed on February 4,

2019. Petitioner filed its Proposed Recommended Order on

February 26, 2019. Respondent did not f ile a proposed

recommended order. Petitioner's Proposed Recommended Order was

reviewed and considered in the preparation of this Recommended

Order.

All statutory references are to the 2018 version of the

statute, unless otherwise noted.

FINDING S OF FACT

Based on the record and the evidence presented, the

undersigned makes the following findings of fact:

1. At all times relevant to this case, Petitioner was

charged with the duty to operate, control , and supervise all

public schools within t he school district of Miami - Dade County,

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

and section 1012.23, Florida S tatutes.

2. Respondent was employed as a physical education teacher

at Cutler Ridge Elementary School ( " CRES " ). Res pondent first

arrived at the school in August 2017 at the start of the

2017/2018 school year.

3. Shortly after his arrival, Respondent began exhibiting

odd behavior , which was noticed by the administration and other

staff members. The principal , Wright - Mullings, found that it

was d ifficult to communicate with Respondent and he appeared

disheve led in his dress and appearance at times.

4. Early in t he 2017/2018 school year, fifth - grade

students also began complaining about Respondent ' s behav ior. In

response, three separate invest igations were initiated into

Respondent ' s conduct based on specific reports by several

students.

5. The firs t concerned allegations that Respondent was

making insulting comments, screaming , and poking student s; the

second concerned Respondent allegedly s natching a jump rope from

a female student , injuring her hand; and the third allegation

concerned Respondent referring to a female student in a

demeaning manner and calling her derogatory names. Pet.

Ex s . 3 - 5.

6. These allegations gave the principal cause for concern

because she wanted students and their pare nts to feel

comfortable with teachers at the school. She also felt that

these allegations raised safety concerns.

7 . After investigation by th e school p olice, probable

cause for t hree separate violations of S chool B oard P olicy 3210,

Standards of Ethical Conduct, were found. 2 /

8. Taking exception to the investigative results,

Respondent requested that a supplemental investigation be

conduct ed. This was done. However, the outcomes of the initial

investigations did not change. P et . Ex s . 6 and 7 . Respondent

was not formally disciplined for the allegations or findings

made in these investigations, since the disciplinary process was

never ful ly completed.

9. However, as a result of these investigations,

Respondent was removed from CRES and placed in an alternative

as signment at the region al o ffice on September 1, 2017, followed

by placement at the District ' s Federal and State Compliance

Office on September 19, 2017.

10. The principal remained concerned that despite

completion of the three investigations and disciplinary process,

the safety of the students could still be in jeopardy if

Respondent returned to the school.

11. Suf fice it to say, that in addition to these three

investigations, multiple and repeated instances of odd and

bizarre behavior by Respondent occurred at school and around the

students he was charged to protect and educate.

12. These are outlined in deta il in Petitioner ' s

Exhibit 14. They occurred primarily from August 18 through

September 1, 2017.

13. Some of the odd and abnormal behavior by Respondent

was witnessed by the principal herself. Other behavio r was

reported by staff members and supple mented or explained what the

principal had seen.

14. For several months , and d uring the course of the

invest igations, the principal had expressed her ongoing concerns

about Respondent to Pina, district d irector of the Office of

Professional Standards . They also discussed the need to refer

Respondent for a medical fitness for duty evaluation.

15. Pina shared the principal ' s concerns regarding

Respondent ' s odd behavior and conduct. This was based, in part,

on her own observations of Respondent . She too was concerned

for the safety of the students.

16. When Pina brought the results of the investigations

regarding Respondent before the Disciplinary Review Team for

review and action, it was decided that discipline would be

deferred while th e School Board proceeded with a fitness for

duty evaluation of Respondent.

17. Pina instructed the principal to monitor and record

Respondent ' s behaviors and maintain the results in writing.

Wright - Mullings contacted her staff and had some of them w rite

statements regarding thei r observations of Respondent. P et .

Exs. 10 - 13.

18. Wright - Mullings compiled her own written summary

containing her observations of Respondent ' s conduct, as well as

conduct and actions by Respondent that her staff had ob served

and reported . P et . Ex. 14 .

19. These observations by her and the staff included,

among other things, Respondent ' s inability to understand

directives and to communicate; repeatedly asking the same

questions or asking for clarity on points made to him; the

inability to understand sample lesson plans; a disheveled

appearance that included holes in his shirts and body odor;

suppressed anger when questioned about uncompleted tasks;

illogical explanations concerning his actions; a nervous laugh;

odd facial exp ressions; staring blankly at co workers; speaking

very close to people in their personal space and becoming

agitated.

20. These behaviors and the incidents giving rise to the

investigations were carefully evaluated, weighed , and considered

by Wright - Mullings. They gave the principal reasonable cause

for concern, and she was uneasy with the prospect of Respondent

coming back to work at CRES.

21. Other teachers and staff members at CRES also

expressed discomfort regarding Respondent ' s o dd and abnormal

behaviors. 3 /

22. Pursuan t to School Board Policy 3161 -- Fitness for

Duty -- and Art icle XXI , Section (2)(F) , of the Collective

Bargaining A gree m ent betwe en the United Teachers of Dade Labor

U nion and the School Board ( " UTD Contract " ), Pi na held a

Conference for the Record ( " CFR " ) with Respondent on April 11,

2018 , to address concerns about his fitness for duty. P et .

Ex. 19.

23. At the conference, Respondent was advised of the

troubling nature of his behavior and conduct, and the ne ed of

the School Board to do a fitness for duty evaluation of him.

P et . Ex. 19 .

24. On April 16, 2018 , Respondent was again advised of the

basis for a fitness for duty evaluation in writing. He signed a

release to have the results of that evaluatio n sent to Pina.

P et . Exs. 16 and 17 .

25. As permitted by School Board policy, Respondent

reviewed and selected a licensed psychologist from a list

provided to him. Thereafter, a request for an evaluation of

Respondent was sent to the doctor he sele cted, Dr. Theodora

" Teddy " Tarr, on April 17, 2018. P et . Exs. 18 and 19 .

26. Dr. Tarr had two clinical sessions with Respondent.

She also reviewed Respondent ' s work history at M iami - D ade

C ounty , as well as Respondent ' s prior written responses to th e

complaints at the elementary school. Respondent also completed

an intake form and a self - inventory on certain issues that were

of concern to the doctor, both of which were reviewed and

considered by her. P et . Ex. 20 , p . 57 .

27. After an examinati on and testing of Respondent,

Dr. Tarr prepared a confidential a ssessment report. In essence,

her report concluded that Respondent was not fit for duty as a

teacher.

28. More specifically, the report from Dr. Tarr stated:

Refer Mr. T.V. for therap y. He needs social

skill training and further assessment. He

is incapable or unwilling to correct

negative behaviors evidencing poor

communication skills for self - control. It

is not advisable he return to a teaching

environment without identifying

inapp ropriate behaviors and correct

boundary, communication and social skill

issues. Mr. T.V. is not qualified to return

to his position in the MDC School System due

to poor insight, poor boundaries, difficulty

communicating, and confusing body language.

(Emp hasis added ) .

P et . Ex. 20, p. 57 .

29. Dr. Tarr provided the report to Pina. Subsequently,

Pina held another conference with Respondent on April 30, 2018.

At the conference , it was explained to Respondent that he had

the option to seek a second fi tness medical opinion pursuant to

the UTD Contract, and that he could take a medical leave of

absence, resign , or retire. P et . Ex. 21 . Respondent was

required to give Pina his decision by May 3, 2018.

30. Respondent gave no response by the May 3, 2 018 ,

deadline. He also never sought a second medical opinion despite

having the rest of the school year and summer months to do so .

31. On August 1, 2018 , Pina held another meeting with

Respondent and advised him that since he had not exercised any

of the options available to him, and based on the doctor ' s

report and his conduct and actions to date, the School Board

would be dismissing him at the School Board meeting of

August 15, 2018. P et . Exs. 22 and 23 .

32. On August 16, 2018 , Respondent w as sent a final

memorandum informing him that he had been dismissed by the

School Board. P et . Ex. 25 .

CONCLUSIONS OF LAW

33. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties pursuant to

sections 120.56 9, 120.57(1), and 1012.33(6)(a).

34. Because the School Board seeks to terminate

Respondent ' s employment, and this action does not involve the

loss of Respondent ' s teaching license or certification, it has

the burden of proving the allegations in its Notice of Specific

Charges by a preponderance of the evidence. McNeill v. Pinellas

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

Bd. of Dade Cnty. , 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo

v. Sch. Bd. of Dade Cnty. , 569 So. 2d 883 (Fla. 3d DCA 1990).

35. The preponderance of the evidence standard requires

proof by " the greater weight of the evidence, " Black ' s Law

Dictionary 1201 (7th ed. 1999), or evidence that " more likely

than not " tends to prove a certain proposition. See Gross v.

Lyons , 763 So. 2d 276, 289 n.1 (Fla. 2000) .

36. The School Board ' s Notice of Specific Charges alleged

that Respondent was guilty of (I ) misconduct in office, and

(II) incompetency due to inefficiency and i ncapacity.

Misconduct in Office

37. Under State Board Rule 6A - 5.056(2), " Misconduct in

Office " means one or more of the following: (a ) A violation of

the adopted school board rul es; (b ) Behavior that disrupts the

student ' s learning environment; or (c ) Behavior that reduces the

teach er ' s ability or his or her colleague ' s ability to

effectively perform duties.

38. Petitioner produced adequate evidence that

Respondent ' s conduct and actions violated this r ule definition,

and he was subject to dismissal.

Incompetency Due to Ineffici ency and Incapacity

39. Additionally , under State Board Rule 6A - 5.056(3),

" Incompetency " means the inability, failure , or lack of fitness

to discharge the required duty as a result of inefficiency or

incapacity.

40. " Inefficiency " can mean a f ailure to properly perform

duties prescribed by law or a failure to interact appropriately

or effectively with colleagues, administrators , or subordinates.

41. Respondent was periodically found without lesson plans

and seemed unable to understand or follow directions from either

the principal or his assigned teaching mentor. His responses to

questions were often unrelated to the questions asked, and he

would either not respond to assistance being given or try to

deflect the subject to other topics. This frustrated his

colleagues and administrators and also made them uncomfortable.

Dr. Tarr confirmed and noted Respondent ' s communication

difficulties in her assessment report. P et . Ex. 20, p p. 56 - 57 .

42. Based on the foregoing and the other find ings of fact

made, Respondent did not work competently due to his

inefficiency and lacked the capacity to work effectively and

easily with others.

43. During her evaluation of Respondent, Dr. Tarr found

inter alia that Respondent had social boundar y issues,

communication problems , and , what she described as other

" puzzling behaviors ."

44. Ultimately her determination as a trained psychologist

was that Respondent was not fit for duty. This finding

reasonably translates into a determination t hat Respondent was

not competent to fulfill his duties as a teacher -- to protect,

train , and educate his students. Respondent ' s lack of

competency as a teacher constitutes just cause for dismissal.

45. In summary, while Respondent ' s actions and cond uct

towards students and other staff members may be colloquially

perceived or referred to as " odd " or " bizarre ," Dr . Tarr ' s

professional assessment left little room for doubt or

conjecture.

46. The doctor succinctly concluded that Respondent was

" no t qualified to return to his position " as a teacher and

warned that it was " not advisable " for the School Board to

return him to a teaching environment.

47. Regardless of the type or extent of the behaviors or

events that prompted the principal to r equire him to undergo a

fitness for duty examination, her instincts, concerns , and

observations were confirmed b y the trained psychologist,

Dr. Tarr.

48. To conclude, since the safety of the students,

teachers , and staff is of paramount importance, the

psychologist ' s opinions and warnings cannot be ignored. As a

result, dismissal was appropriate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusion s of

Law, it is RECOMMENDED that a final order be entered by t he

Miami - Dade Co unty School Board upholding Tirso Valls ' dismissal

from employment with the School Board.

DONE AND ENTERED this 12 th day of March , 2019 , in

Tallahassee, Leon County, Florida.

S

ROBERT L. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12 th day of March , 2019 .

ENDNOTE S

1/ At the start of the hearing, the undersigned denied

Respondent's oral Motion to Dismiss.

2 / Other allegations of improper corporal punishment, in

violation of S chool B oard P olicy 5630, were not founded.

3 / As it turned out, their concerns were justified , as outlined

in the detailed report issued by the psychologist, Dr. Tarr.

COPIES FURNISHED:

Christopher J. La Piano, Esquire

Miami - Dade County School Board

1450 Northeast Seco nd Avenue , Suite 430

Miami, Florida 33132

(eS erved)

Tirso Valls

2811 Southeast 17 th Avenue , Unit 100

Homestead, Florida 33035

(eServed)

Alberto M. Carvalho, Superintendent

Miami - Dade Coun t y S chool Board

1450 Northeast Second Avenue, Suite 912

Miami, Florida 33132 - 1308

Matthew Mears, General Cou nsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Richard Corcoran

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallah assee, Florida 32399 - 0400

(eServed)

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.