19-002915TTS Miami-Dade County School Board vs. Claude A. Paul Status: Closed Recommended Order on Wednesday, November 20, 2019.

Summary: Teacher who restrained an 11 year-old EBD student by twisting his arms behind his back, causing multiple fractures to both arms, and slapping his face, used excessive force and engaged in misconduct in office which constitues just cause for termination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 19 - 2915TTS

CLAUDE A. PAUL,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a formal a dministrative hearing was

conducted before Administrative Law Judge Mary Li Creasy by video

teleconference with locations in Miami and Tallahassee, Florida,

on August 29 , 2019 .

APPEARANCES

For Petitioner: Christopher J. La Piano, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 430

Miami, Florida 33132

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761 - 1526

For Respondent: Claude A. Paul , pro se

6113 Southwest 3 3rd Street

Miramar, Florida 33023

STATEMENT OF THE ISSUE S

Whether Respondent , Claude Paul ("Respondent" or "Ms. Paul")

committed the violations as alleged in the November 18, 2018,

Petitioner's , Miami - Dade County School Board ("the School Board ")

action letter ; and, if so, what is the appropriate penalty .

PRELIMINARY STATEMENT

On November 20 , 2018, at its scheduled meeting, the School

Board took action to suspend Ms. Paul from her teaching position

at Miami Park Elementary School ( "Miami Park " ) and initia te

termination proceedings. Ms. Paul timely requested an

administrative hearing . The matter was referred to the Division

of Administrative Hearings ( " DOAH " ) on December 5, 2018 , to

assign an Administrative Law Judge to conduct the final hearing .

The cas e was initially assigned DOAH Case No. 18 - 6379TTS and set

for hearing for February 12, 2019. Upon receipt of an Agreed

Motion to Hold Case in Abeyance and Continue Hearing, a

telephonic hearing was held on February 1, 2019, and the parties

agreed to have the file closed and jurisdiction relinquished

pending the criminal case against Ms. Paul for the same action

giving rise to the instant dispute.

The School Board filed a Motion to Re - Open the case on

May 30, 2019. The final hearing was held as schedu led on

August 29, 2019. T he School Board presented the testimony of the

following : Craig Siegel, District Chairperson for the Clinical

Art Therapy Department and lead trainer for Safe Crisis

Management ; Linda Carter, grandmother of student J . B ; Sergeant

B ernise Charley, Miami - Dade Schools Police Department ; J . B . ,

former student of Ms. Paul at Miami Park ; Claribel Garcia, former

Assistant Principal at Miami Park ; Antranique Andrews, Security

Monitor at Miami Park ; and Yvonne Perry, former Principal at

Miami Park . School B oard Exhibits 1 through 18 were admitted

into evidence.

Ms. Paul testified on her own behalf . Respondent 's

Exhibit s 1 through 6 were admitted into evidence .

The final hearing Transcript was filed on October 9, 2019.

The parties requested an extension of time within which to file

their proposed recommended orders , which was granted . The

parties timely filed proposed recommended orders, which were

given consideration in the preparation of this Recommended Order .

Unless otherwise indicated, all statutory references are to the

versions in effect at the time of the alleged violations .

FINDING S OF FACT

The Parties

1 . The School Board is a duly - constituted school board

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

publi c schools within Miami - Dade County, Florida .

2 . Ms. Paul began her employment with the School Board in

2008 as a substitute teacher. Since then , she was employed at

several different schools. Starting in February 2016, she was

assigned to Miami Park. Prior to the instant case, Ms. Paul had

no prior discipline.

3 . Ms. Paul' s employment with the School Board i s governed

by Florida law, the School Board ' s policies, and the collective

bargaining agreement between the School Board and the United

Teachers of Dade .

Circumstances Giving Rise to Ms . Paul ' s Discipline

4. The proposed discipline is based upon conduct occurring

on September 5, 2018, as a result of an altercation between an

11 year - old student, J.B., and Ms. Paul while he was an Emotional

and Beh avior Disturbed (EBD) student in her fifth grade class.

5. Ms. Paul had J.B. as a student the prior year for fourth

grade. Due to his frequent disruptiveness, Ms. Paul placed J.B.

at a desk in the back of the class facing a wall during most of

his fourth grade year (2017 - 2018 school year).

6. September 5, 2018, was at the beginning of the 2018 - 2019

school year. On that date, J.B. was talking to another student

and did not stop when asked to do so repeatedly by Ms. Paul.

Ms. Paul told J.B. she was movin g his desk to the back of the

class.

7. As Ms. Paul approached his desk, J.B. dropped his pencil

case and bent down to pick it up. Believing Ms. Paul was going

to physically restrain or move him, as he stood up, J.B. slapped

Ms. Paul once or twice on the face and called Ms. Paul a "bitch."

8. The witnesses' recollections of what happened next

diverge. According to J.B., Ms. Paul grabbed his arms and

twisted them up high behind his back. It hurt immediately and he

was "sad and mad at the same time." Sh e then took him to the

adjacent room of Clinician Kawine Clermont where Ms. Paul then

slapped J.B. in the face after sending Ms. Clermont to check on

the students in Ms. Paul's class. J.B. laid on a mat in

Ms. Clermont's classroom. He had difficulty gett ing up and

complained that his arm s hurt. He was then escorted from

Ms. Clermont's room by Antranique Andrews , Miami Park Security

Monitor, and Claribel Garcia, Assistant Principal, to the main

office. J.B. was also given a bag of ice for his wrist while his

grandmother, Linda Carter, who was called by Ms. Paul to come

pick up J.B., spoke to school staff.

9. According to Ms. Paul's final hearing testimony, she

grabbed both of J.B.'s arms to keep from falling after he slapped

her. He struggled to get awa y and they both fell to the ground.

She also testified that she did not pull J.B.'s arms behind his

back but rather laid him down on the floor and held his arms.

This is inconsistent with her written statement given the day of

the incident in which she s tated, "Then he punched me. Several

time [sic] in the face. I almost fell to the ground . . . I ask

[sic] another student to get the mat. I hold one arm in the

back, the other on the side. He lay [sic] down crying."

Ms. Paul denies being alone in Ms. Clermont's room with J.B. or

that she slapped him. Ms. Paul testified that she sent another

student to get Ms. Clermont who then escorted J.B. to the

clinician's room.

10. The best person to corroborate Ms. Paul's recollection

is Ms . Clermont, who did no t testify . However, she prov ide d a

written statement in which she recited her version of the events .

The statement is oddly written in the third person wherein she

refers to herself as " Clinician ." It states in part:

Clinician was in her classroom when two

students came over and reported J . B . slapped

Ms . Paul . Clinician rushed over and J . B . was

laying [sic] on a mat in a ball crying .

Clinician had J . B . go over to her classroom .

When J . B . went over to clinician classroom he

laye d [sic] back on mat bal led up crying.

The statement does not say that she, Ms . Clermont, brought J.B.

over , but that she "had" him go to her classroom . This does not

preclude the possibility that Respondent escorted J .B. to her

room as J.B. claims.

11. Security Monitor , Antranique Andrews, was directed by

Assistant Principal Garcia to respond to Ms. Clermont's room.

There she observed J.B. curled up and crying on the floor. When

J.B. did not get up as directed by Ms. Andrews, she asked

teacher's aide, Mr. Flowers (fir st name unknown) to assist.

Together Ms. Andrews and Mr. Flowers got J.B. to stand up and

wash his face before they took him to the office. Ms. Andrews

observed red marks on J.B.'s arms and that he was upset.

Ms. Andrews testified, "His arms were a litt le reddish. I guess

you could say bruised, but red, like if you had an imprint from

pressing, but that was it."

12. When Ms. Carter arrived at school to pick up J.B., she

was told that J.B. slapped Ms. Paul. She was not informed that

J.B. was hurt during the altercation, although she was aware J.B.

was given an ice pack because he complained of pain in his wrist.

She also observed that the side of his face was red, which she

first attributed to him being upset or crying. Video from a

school securit y camera shows J.B. exiting the school while

holding the ice pack on his wrist.

13. When Ms. Carter and J.B. reached Ms. Carter's vehicle,

J.B. asked for help to open the car door. J.B. was physically

unable to open the door. When they arrived home , J.B. asked his

grandmother to take him to the hospital because he thought his

arms were broken. Ms. Carter, who was not feeling well herself,

told J.B. to take a bath and go to bed. However, J.B. needed

assistance with undressing because he could not u se his arms.

14. The next morning, J.B. still complained that he could

not use his arms. Ms. Carter took J.B. to the emergency room at

North Shore Hospital. J.B. received x - rays that revealed

fractures in both arms. He was asked why he had red mar ks on his

face and what happened to his arms. This was the first time

Ms. Carter heard from J.B. what happened at school.

15. Detective Bernise Charley, Miami - Dade Schools Police

Department , was dispatched to the hospital where she interviewed

J.B. and his grandmother. J.B. described how he had been slapped

and physically abused by Ms. Paul while at school. She also

spoke with the medical staff and took photos of J.B.'s face and

arms. She personally observed red marks on the side of J.B.'s

face co nsistent with a handprint.

16. J.B. was transported to Joe DiMaggio Children's

Hospital ("Joe DiMaggio") for further evaluation and treatment.

X - rays were repeated at Joe DiMaggio and revealed that J.B.

suffered a spi ral fracture to his right humer us (upper arm), a

distal radial and buckle fracture to his left forearm, and a

buckle fracture to his left wrist. The injuries were determined

to be consistent with the incident with Ms. Paul as described by

J.B.

17. J.B. and Ms. Carter were subsequen tly asked to meet

with the Department of Children and Families ("DCF") and the

University of Miami Child Protection Team on September 13, 2018,

to review the incident. J.B. and his grandmother were

interviewed separately and each described the incident. Dr. Joan

V. Alvaranga's report states:

J. is an 11 year old boy with fractures of

the right humerous and left wrist which are

consistent with the report he provided. In

addition, J. had red marks on his face, which

had resolved by the time of the CPT

eval uation, which he reported he sustained

when the teacher slapped him on the face. In

my medical opinion, this case represents

child physical abuse.

Deviation from Appropriate De - Escalation Techniques

18. Craig Siegel, District Chairperson for the Cl inical Art

Therapy Department and lead trainer for Safe Crisis Management ,

testified that teachers are provided training by the school

district in a variety of techniques to safely de - escalate a

potentially violent situation and to protect themselves and

o thers.

19. Ms. Paul completed Safe Crisis Management training in

December 2016. Teachers are taught that they are to use non -

physical intervention strategies first to de - escalate a

threatening situation. These include, but are not limited to:

talki ng; evading; blocking; escaping to a "safe zone;" and

summoning help. Physical restraint is to be used only as a last

resort if the student poses an imminent risk of serious injury or

death to themselves or others.

20. The physical techniques taught to teachers are designed

to contain the student in the safest manner possible and reduce

the risk of injury . Only the least amount of force necessary is

to be used . The approved restraint methods do not include

twisting a child's arms behind their back or slapping them in the

face.

21. Although Ms. Paul certainly had the right to protect

herself when slapped in the face by J.B., it strains credulity to

assert that a slap from a then 75 - pound, 11 year - old boy, posed

an imminent risk of serious harm or death such that it was

necessary to apply enough force to break this child's arms in

multiple places.

22. No other adult witnessed the altercation , but they all

saw J.B. curled up on the floor crying. J.B. was hurt bad ly

enough that he was initia lly unable to get up off the floor

without assistance, red marks were immediately seen on his arms

and face, and he needed an ice pack for his wrist while still at

school. J.B.'s story, that Ms. Paul twisted his arms behind his

back and forced him to the floor, has remained consistent. No

evidence was presented to suggest that J.B. received his injuries

at the hands of anyone other than Ms. Paul. Regardless of

whether Ms. Paul slapped J.B. or not, it is clear that she

exceeded all bounds of reasonablenes s in her initial restraint of

J.B. in reaction to him slapping her.

CONCLUSIONS OF LAW

2 3 . DOAH has jurisdiction over the parties and the subject

matter of these proceedings pursuant to sections 120 . 569 and

1 20.57(1), Florida Statutes (2018 ) .

24. Because the School Board, acting through the

superintendent, seeks to terminate Respondent ' s employment, which

does not involve the loss of a license or certification, the

School Board has the burden of proving the allegations in its

Amended Notice of Specific Ch arges by a preponderance of the

evidence, as opposed to the more stringent standard of clear and

convincing evidence . See 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) .

25. Section 1012 . 33(1)(a), Florida Statutes, includes the

following definition of just cause to terminate a teacher ' s

professional services contract :

Just cause includes, but is not limited to,

the following instances, as defined by rule

of the State Board of Education : immorality,

misconduct in office or being convicted or

found guilty of, or entering a plea of guilty

to, regardless of adjudication of guilt, any

crime involvin g moral turpitude .

26. The Notice of Specific Charges alleges the following :

Respondent committed misconduct in office in violation of Florida

Administrative Code Rule 6A - 5 . 056(2) ; a violation of School Board

Policy 3210, the Standards of Ethical Co nduct ; and a violation of

School Board Policy 3210 . 01, Code of Ethics .

27. Whether Respondent committed the charged offenses is a question of ultimate fact to be determined by the trier of fact

in the context of each alleged violation . Holmes v . Tur lington ,

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) .

28. Section 1001 . 02(1), Florida Statutes, grants the State

Board of Education author ity to adopt rules pursuant to sections

120 . 536(1) and 120 . 54 to implement provisions of law conferring

duties upon it .

29. Consistent with its rulemaking authority, the State

Board of Education has defined " misconduct in office " in

rule 6A - 5 . 056(2) , which reads in pertinent part as follows :

(2) " Misconduct in Office " means one or more

of the following :

(a) A violation of the Code of Ethics of the

Education Profession in Florida as adopted in

Rule 6B - 1 . 001, F . A . C .;

(b) A violation of the Principl es of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B -

1 . 006, F . A . C .;

(c) A violation of the adopted school board

rules ;

(d) Behavior that disrupts the student ' s

learning environment ; or

(e) Behavior that reduces the teacher ' s

ability or his or her colleagues ' ability to

effectively perform duties .

Code of Ethics and Principles of Professional Conduct

30. Florida Administrative Code Rule 6B - 1 . 001, renumbered

without change as rule 6A - 10 . 080, Code of Ethics, pr ovides :

(1) The educator values the worth and dignity

of every person, the pursuit of truth,

devotion to excellence, acquisition of

knowledge, and the nurture of democratic

citizenship . Essential to the achievement of

these standards are the freedom to le arn and

to teach and the guarantee of equal

opportunity for all .

(2) The educator ' s primary professional

concern will always be for the student and

for the development of the student ' s

potential . The educator will therefore

strive for professional growt h and will seek

to exercise the best professional judgment

and integrity .

(3) Aware of the importance of maintaining

the respect and confidence of one ' s

colleagues, of students, of parents, and of

other members of the community, the educator

strives to a chieve and sustain the highest

degree of ethical conduct .

31. Rule 6B - 1 . 006, renumbered without change as rule 6A -

10 . 081, sets forth the Principles of Professional Conduct . The

School Board alleges that Respondent violated subsections (3)(a)

and (e) of the rule, which read as follows :

(3) Obligation to the student requires that

the individual:

(a) 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 saf ety .

* * *

(e) Shall not intentionally expose student to

unnecessary embarrassment or disparagement .

32. As was stated in Miami - Dade County School Board v .

Brenes , Case No . 06 - 1758, 2007 Fla . Div . Adm . Hear . LEXIS 122, at

*42 . Sch . Dade Cnty - Miami ; Bd 27, 2007 H Feb DOA . 12 (Fla . 43 n - . .

Apr . 25, 2007) :

Rule [6B - 4 . 009(3)] plainly requires that a

violation of both the Ethics Code and the

Principles of Professional Education be

shown, not merely a violation of one or the

other . The precepts set for th in the Ethics

Code, however, are so general and so

obviously aspirational as to be of little

practical use in defining normative behavior .

It is one thing to say, for example, that

teachers must " strive for professional

growth ." See Fla . Admin . Code R . 6B -

1 . 001(2) . It is quite another to define the

behavior which constitutes such striving in a

way that puts teachers on notice concerning

what conduct is forbidden . The Principles of

Professional Conduct accomplish the latter

goal, enumerating specific " dos " and

" don ' ts ." Thus, it is concluded that while

any violation of one of the Principles would

also be a violation of the Code of Ethics, the converse is not true . Put another way, in order to punish a teacher for misconduct in office, it is necessary but not sufficient

that a violation of a broad ideal articulated in the Ethics Code be proved, whereas it is both necessary and sufficient that a

violation of a specific rule in the Principles of Professional Conduct be proved . It is the necessary and suff icient condition to which the text refers .

33. Ms. Paul c learly did not exercise h er " best

professional judgment " during the incident in question and h er

actions violated the Principles of Professional Conduct .

Ms. Paul ' s action s caused J.B. and hi s grandmother to be

questioned by law enforcement and DCF resulting in unnecessary

embarrassment.

34. Ms. Paul failed " to protect the student from conditions

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

physical health and/or safety ." M s. Paul caused serious and

significant harm to J.B. by slapping his face, twisting his arms

behind his back, breaking both arms, and forcing him to the

floor.

35. Ms. Paul's argument, that J.B. was a volatile student

and that she was merely trying to protect herself from further

harm, is not credible. If Ms. Paul was concerned for her

physical safety, she could have moved away, blocked his blows,

moved to the safety zone, or called for help. She did none of

these things.

School Board Rules

36. The obligations of the teacher towards a student

contained in School Board Policy 3210 . 01, Code of Ethics, mirror

the language of the Principles of Professional Conduct for the

Education Profession in Florida, rule 6A - 10 . 081 . For the reasons

discussed a bove, the School Board demonstrated by a preponderance

of the evidence that Respondent violated School Board Policies

3210 and 3210 . 01 .

37. While teachers , particularly those who teach EBD

students, are unfortunately periodically placed in stressful and

threatening situations, the evidence presented at hearing leads

to the conclusion that th e serious physical injury sustained by

J.B. was the direct result of the wholly inappropriate and

unpr ofessional actions of Ms. Paul. As such, it constitutes

mis conduct in office and just cause for termination.

38. This penalty takes into account that although Ms. Paul

has no prior disciplinary history, she unnecessarily caused

serious physical harm to her student.

RECOMMENDATION

Based on the foregoing Find ings of Fact and Conclusions of

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

enter a final order finding Claude Paul guilty of misconduct in

office and terminating her employment .

DONE AND ENTERED this 20 th day of November , 2019 , in

Talla hassee, Leon County, Florida.

MARY LI CREASY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6 847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20 th day of November , 2019 .

COPIES FURNISHED:

Mark Herdman, Esquire

Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North , Suite 110 Clearwater, Florida 33 761 - 1526

(eServed)

Christopher J. La Piano, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue , Suite 430

Miami, Florida 33132

(eServed)

Claude A. Paul

6113 Southwest 33rd Street

Miramar, Florida 33023

Matthew Mears, General Counsel

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

Tallahassee , Florida 32399 - 0400

(eServed)

Alberto M. Carvalho , Superintendent

Miami - Dade County School Board

1450 N ortheast Second Avenue, Suite 912

Miami, Florida 33132 - 1308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exc eptions 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.