19-004589TTS Broward County School Board vs. Antonio Dwight Beckham Status: Closed Recommended Order on Monday, March 9, 2020.

Summary: School Board failed to prove by a preponderance of evidence that teacher's conduct constituted misconduct in office, incompetency, inefficiency, or a violation of School Board policy justifying his suspension.

P RELIMINARY S TATEMENT

By letter dated July 31, 2019, Petitioner, Broward County School Board

( " School Board " ), notified Respondent, Antonio Beckham ( " Respondent " ), of

the School Board’s intent to suspend his employment without pay. On

August 9, 2019, Respondent timely requested an administrative he aring. On

August 20, 2019, at its scheduled meeting, the School Board took action to

suspend Respondent’s employment as a teacher without pay for three days.

Subsequently, the School Board referred the matter to DOAH to assign an

Administrative Law Judge t o conduct the final hearing.

The Administrative Complaint contains certain factual allegations, and

based on those factual allegations, the School Board charged Respondent

with misconduct in office, incompetency, inefficiency, and violation of School Boar d Policy 4008.

The final hearing was initially set for October 7 and 8, 2019. On

September 17, 2019, the parties filed a joint motion for continuance . That

same date, the undersigned granted the motion and reset the final hearing

for December 17 and 18, 2 019.

The final hearing was conducted as scheduled on December 17, 2019, with

both parties present. At the hearing, the School Board presented the

testimony of R.D., E.P., Ms. Sabrina Tobias, and Ms. Shannon Burch. The

School Board’s Exhibits 1 through 1 5 were received into evidence based on

the stipulation of the parties. Respondent testified on his own behalf and did

not offer any exhibits into evidence.

At hearing, the parties agreed to file their proposed recommended orders

within 30 days after t he f iling of the final hearing T ranscript at DOAH. The

one - volume final hearing Transcript was filed at DOAH on January 8, 2020.

On February 4, 2020, Respondent filed an unopposed motion to extend the

deadline in which to file proposed recommended orders until February 21,

2020. On February 4, 2020, the undersigned entered an Order granting the motion.

The parties timely filed proposed recommended order s , which were

considered in the preparation of this Recommended Order. On December 9,

2019, the parties filed their Joint Pre - Hearing Stipulation, in which th ey

stipulated to certain facts. These facts h ave been incorporated into this

Recommended Order as indicated below.

Unless otherwise indicated, all rule and statutory references are to the

versions in effect at the time of the alleged violations.

F INDINGS OF F ACT

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

duty to operate, control, and supervise the public schools within Broward

County, Florida.

2. The School Board hired Responde nt on July 1, 2013. At all times

material hereto, Respondent was employed by the School Board as a physical education teacher at Lauderhill 6 - 12 Middle School.

3. At all times material to this case, Respondent’s employment with the

School Board was govern ed by Florida law and the School Board’s policies.

4. The conduct giving rise to the School Board’s proposed three - day

suspension of Respondent occurred on April 18, 2018, during the 2017 - 2018

school year.

5. On April 18, 2018, R.D., a female 12th grade s tudent, entered the school

gym, along with fellow high school students E.P. and J.B., in an effort to take pictures of Respondent and Coach Jessica Bentle ( " Bentle " ) for the school’s

yearbook. At the time, Respondent, Bentle, and another physical education

teacher, Mr. Drummer, were supervising a physical education class, with

dozens of students participating in various physical education activities in

the gym. Neither R.D., E.P., nor J.B. were students in the physical education

class. Rather, R.D., E.P., a nd J.B. entered the gym during Respondent’s and

Bentle’s physical education class for the sole purpose of taking their pictures for the school’s yearbook.

6. When R.D. went to the gym on April 18, 2018, she was aware that

Respondent and Bentle did not wan t their pictures taken because they had

declined previous requests to have their pictures taken. Nevertheless, on

April 18, 2018, R.D. again requested to take pictures of Respondent and

Bentle for the school’s yearbook, and both Respondent and Bentle decli ned.

7. Despite Re spondent’s repeated denials of requests not to have his

picture taken, R.D. waited until Respondent was not looking and took his

picture anyway with her cell phone.

8. According to R.D., when Respondent realized she had taken his pictur e,

he became angry and started walking toward her to confiscate her cell phone.

R.D. did not want to give Respondent her cell phone because it contained the

picture of him she knew she should not have taken. In an effort to avoid

giving Respondent her cell phone, R.D. testified that she put the cell phone

behind her back and started walking backwards away from him.

1

9 . R.D. maintains that at some point during Respondent’s pursuit of her,

she turned away from Respondent and began to run. R.D. further maint ains

that Respondent caught up with her from behind while she was trying to run

away from him, pulled on her shirt, and at the same time put his foot behind

her right ankle, and , as she was going forward, tripped her and pulled her

backwards which caused h er to fall backward onto her back and the floor.

1 It is undisputed that there are circumstances when a teacher has the authority to

confiscate a student’s cell phone, and it is a student’s responsibility to surrender the cell

phone when asked by the tea cher.

R.D. further maintains that she could see Respondent’s foot behind her ankle

before she fell backward onto her back and the floor.

10 . E.P. testified that , upon entering the gym, he sat down with a group o f

other students and took pictures. E.P. testified that he observed Respondent

approach R.D. from approximately 10 to 15 feet away from her after he had

taken the picture identified as P - 016 within the School Board’s Exhibit 10.

However, E.P. testified tha t his view of Respondent was blocked when he

took the picture.

11 . At one point, E.P. further testified that as Respondent approached

R.D., he observed R.D. walking backwards. However, at another point in his

testimony, E.P. equivocated and testified he wa s " not sure. " 2 E.P. further

testified that when Respondent was approximately three to five feet away

from R.D., R.D. turned away from Respondent so that her back was to

Respondent. E.P. further testified that from a distance of 40 to 50 feet, he

observed R espondent and R.D. engage in a physical struggle over the cell

phone for " one to two minutes, " followed by Respondent’s use of a " martial art

or military takedown " technique and push against R.D., which caused her to

fall to the floor. E.P. further testifi ed that although he does not remember

seeing Respondent pull on R.D.’s shirt prior to her fall, he claims to have seen

Respondent push R.D., while she was either facing Respondent or they were

" side by side, " at which time , Respondent used the " martial art or military

takedown " technique to trip and cause R.D. to fall to the floor.

2 E.P. testified in this regard as follows:

Q. Well, you have to answer my question. She may have been

trying to leave, but was she leaving -- was she going

backwards?

A. Do you mean walking backwards?

Q. Yes, sir.

A. I would say, yes.

Q. You would say yes or you saw her walking backwards?

A. Walking backwards.

Q. You saw that?

A. I’m not sure.

(T., pp. 52 - 53).

12 . Respondent testified that when he first noticed R.D. attempting to

take his picture, he took R.D.’s cell phone from her and reiterated to her that

he did not want his pictur e taken. Moments later, Respondent returned the

cell phone to R.D. After Respondent returned R.D.’s cell phone to her, she

continued to try to photograph him.

13 . Respondent further testified that at this point, he began walking

toward R.D., from a distan ce of approximately four or five feet between them.

While he approached R.D., Respondent put his hand out and told R.D. to give

her cell phone to him. According to Respondent, R.D. began to walk

backwards away from him as he approached her. Respondent test ified that as

he was reaching for R.D.’s phone, R.D. tripped and fell backwards onto the

gym floor. As she was falling, Respondent caught R.D. by her arm to break

her fall and guided her to the floor. Once on the floor, Respondent retrieved

R.D.’s cell pho ne and walked away from R.D. After walking away from R.D.,

Respondent then approached J.B. and took away his camera . Respondent

then walked out of the gym and into the adjacent hallway, where he left both

the cell phone and camera.

14 . Respondent vehemen tly denied pushing R.D., grabbing her shirt,

putting his foot or leg behind R.D., and engaging in any physical contact

which caused her to trip and fall to the floor. 3

15 . At hearing, the undersigned had the opportunity to observe the

testimony and demea nor of Respondent, R.D., and E.P. The testimony of

Respondent is credited and is more persuasive than the testimony of R.D. and E.P., which is not credited or persuasive.

16 . Notably, E.P.’s testimony differed from R.D.’s testimony in key

respects. Ac cord ing to E.P., R.D. was facing or " side - to - side " with Respondent

when he tripped her. However, R.D. testified that she was walking away from

3 Mr. Drummer approached R.D. while she was still lying on the floor and as ked her twice if

she was okay. Both times R.D. stated tha t she was fine, as Mr. Dru mmer helped her off the

floor. After getting off the floor, R.D. retrieved her cell phone and J.B. retrieved his camera

from the adjacent hallway, and R.D., E.P. and J.B. all walked back to Ms. Tobias’ s class.

Respondent when he tripped her. E.P. further testified that he observed

Respondent push R.D., while R.D. testified Re spondent pulled on her shirt.

E.P. testified he did not see Respondent pull on R.D.’s shirt.

17 . Moreover, E.P. equivocated with respect to whether R.D. was walking

backward or not.

18 . Had the i ncident occurred as testified about by E.P. or R.D., it is

e xpected that at least one of the dozens of physical education students in the

gym and another physical education teacher would have witnessed it.

However, there is no indication that any of the dozens of physical education students or other teachers in the gym witnessed the incident as described by

E.P. or R.D.

19 . Moreover, had the i ncident occurred as testified about by E.P. or R.D.,

it is expected that E.P. or another student in the gym would have taken at

least one picture of R.D. and Respondent engage d in the purported physical

struggle over the cell phone while they were both standing, or another picture

depicting Respondent’s purported application of the " martial art or military

takedown " technique. Instead, E.P. took only three pictures on the day o f the

incident that were offered into evidence at the hearing: P - 014 within the

School Board’s Exhibit 10; P - 015 within the School Board’s Exhibit 10; and

P016 within the School Board’s Exhibit 10. None of these pictures depict R.D.

and Respondent engaged in a physical struggle over the cell phone be fore

R.D. was on the ground -- a physical struggle which E.P. described as lasting

one to two minutes. And none of these pictures show Respondent trip ping or

otherwise engaging in physical contact with R.D. which caused her to fall to

the floor.

20 . In sum, the persuasive and credible evidence adduced at hearing

demonstrates that Respondent did not push, pull, trip, or otherwise make

physical contact with R.D., which caused her to fall to the floor. Respondent’s

c onduct in the gym on April 18, 2018, with respect to R.D. , does not

constitute misconduct in office, incompetency, inefficiency, or a violation of

School Board Policy 4008. 4

C ONCLUSIONS OF L AW

21 . DOAH has jurisdiction of the subject matter and the parti es to this

proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes.

22 . Respondent is an instructional employee, as that term is defined in

section 1012.01(2), Florida Statutes. The School Board has the au thority to

suspend instructional em ployees pursuant to sections 1012.33(1) (a)

and 1012.33(6)(a) .

23 . The School Board has the burden of proving, by a preponderance of the

evidence, that Respondent committed the violations alleged in the

Administrative Complaint and that such violations cons titute " just cause " for

a three - day suspension. §§ 1012.33(1)(a) and (6)(a), Fla. Stat.; Dileo v. Sch.

Bd. of Dade Cty ., 569 So. 2d 883, 884 (Fla. 3rd DCA 1990).

24 . The preponderance of the evidence standard requires proof by " the

greater weight of the ev idence " or evidence that " more likely than not " tends

to prove a certain proposition. Gross v. Lyons , 763 So . 2d 276, 280 n.1 (Fla.

2000). The preponderance of the evidence standard is less stringent than the

standard of clear and convincing evidence appli cable to loss of a license or

4 J.B. did not tes tify at the hearing. However, a hearsay stateme nt purportedly authored by

J.B. was received into evidence at the final hearing as the School Board’s Exhibit 3. Although

hearsay is admissible in administrative proceedings, this does not necessarily mean tha t the

undersigned must use the hearsay in resolving a factual issue. The statement cannot be used

as the sole basis to support a finding of fact, because it does not fall within an exception to

the hearsay rule. Furthermore, the statement does not suppleme nt or explain other non -

hearsay evidence. See §120.57(1)(c), Fla. Stat. ( " Hearsay evidence may be used for the

purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself

to support a finding unless it would be admissibl e over objection in civil actions. " ). Even if

the statement could be used by the undersigned, however, it would not be given any weight

based on the live testimony presented by Respondent at the final hearing. Unlike J.B., who

did not testify, the undersig ned had an opportunity to judge the demeanor of the live

witnesses who testified. Unlike J.B., the live witnesses at the final hearing were subject to

cross - examination. As indicated above, the testimony of Respondent at hearing was more

persuasive and cre dited over the live testimony of R.D. and E.P. The live testimony of

Respondent is also credited over the hearsay statement of J.B., who did not testify .

certification. Cisne ros v. Sch. Bd. of Miami - Dade C ty ., 990 So. 2d 1179 (Fla.

3rd DCA 2008).

25 . Whether Respondent committed the charged offenses is a question of

ultimate fact to be determined by the trier of fact in the co ntext of each

alleged violation. Holmes v. Turlington , 480 So. 2d 150, 153 (Fla. 1985);

McKinney v. Castor , 667 So. 2d 387, 389 (Fla. 1st DCA 1995).

26 . Sections 1012.33(1)(a) and (6)(a) provide , in pertinent part , that

instructional staff may be suspended during the term of their employment

contract only for " just cause. " §§ 1012.33(1)(a) and (6)(a ), Fla. Stat. " Just

cause " is defined in section 1012.33(1)(a) to include " misconduct in office " and

" incompetency. "

27 . Section 1001.02(1), Florida Statutes, gr ants the State Board of

Education authority to adopt rules purs uant to sections 120.536(1)

and 120.54 to implement provisions of law conferring duties upon it.

2 8 . Consistent with this rulemaking authority, the State Board of

Education has defined " miscond uct in office " in Florida Administrative Code

Rule 6A - 5.056(2), which provides:

(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 6A - 10.080 , F.A.C .;

(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;

(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.

29 . Florida Administrative Code Rule 6A - 10.080, titled " Code of Ethics of

the Education Profession in Florida, " was repealed, effective Ma r ch 23, 2016,

and reenacted in Florida Administrative Code R ule 6A - 10.081(1)(a) - (c).

Rule 6A - 10.081(1)(a) - (c) provides :

(1) Florida educators shall be guided by the

following ethical principles:

(a ) The educator values the worth and dignity of

every perso n, 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 learn and to teach and the guarantee of equal opportunity for all.

(b ) 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 growth and will

seek to exercise the best professional judgment and

integrit y.

(c ) Aware of the importance of maintainin g the

respect and confidence of one’s colleagues, of

students, of parents, and of other members of the

community, the educator strives to achieve and sustain the highest degree of ethical conduct.

30 . W hile rul e 6A - 5.056(2)(a) still provides that violation of the Code of

Ethics , " as adopted in [ r ] ule 6A - 10.080 , " constitutes " misconduct, " it has been

frequently noted that the prece pts set forth in the " Code of Ethics " are " so

general and so obviously aspirational as to be of little practical use in

defining normative behavior. " Miami - Dade C ty. Sch. Bd. v. Lantz , Case

No. 12 - 3970 (Fla. DOAH July 29, 2014).

31 . Rule 6A - 5.056(2)(b) incorporates by reference rule 6A - 10.081, which is

titled " Principles of Professional Conduct for the Education Profession in

Florida. " Rule 6A - 10.081(2)(a) provides, in pertinent part:

(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.

32 . Consistent with its rulemaking authority, the State Board of

Education has defined " incompetency " in rule 6A - 5.056(3), which provides, in

pertinent part:

(3) " Incompetency " means the in ability, failure or

lack of fitness to discharge the required duty as a

result of inefficiency or incapacity.

33 . Consistent with its rulemaking authority, the State Board of

Education has defined " inefficiency " in rule 6A - 5.056(3)(a), which provides, in

pertinent part:

(a) " Inefficiency " means one or more of the

following:

1. Failure to perform duties prescribed by law;

2. Failure to communicate appropriately with and

relate to students.

34 . School Board Policy 4008 is a " rule " within the m eaning of

rule 6A - 5.056(2)(c). School Board Policy 4008 provides, in pertinent part:

B. DUTIES OF INSTRUCTIONAL PERSONNEL

The members of instructional staff shall perform

the following functions:

1. Comply with the Code of Ethics and the

P rinciples of Professional Conduct of the Education

Profession in Florida.

* * *

4 . Treat all students with kindness, consideration

and humanity, administering discipline in

accordance with regulations of the State Board and

the School Board; provided that in no case shal l

cruel or inhuman punishment be administered to

any child attending the public schools.

* * *

8. Conform to all rules and regulations that may be

prescribed by the State Board and by the School

Board.

3 5 . Turning to the instant case, the School Board failed to prove, by a

preponderance of the evidence, that Respondent’s conduct with regard to R.D.

on April 18, 2018, in the gym , constitutes misconduct in office, incompetency,

inefficiency, or a violation of School Board Polic y 4008. As detailed a bove,

Respondent did not push, pull, trip, or otherwise make physical contact with R.D., which caused her to fall to the floor as alleged in the Administrative

Complaint.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that Petitioner, Broward County School Board, enter a final

order rescinding the three - day suspension of Respondent, Antonio Dwight

Beckham, and provide Respondent with back pay.

D ONE A ND E NTERED this 9th day of March , 2020 , in Tallahassee, Leon

County, Florida.

D ARREN A. S CHWARTZ

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 9th day of March, 2020 .

C OPIES F URNISHED :

Robert F. McKee, Esquire

Robert F. McKee, P.A.

1718 East Seventh Avenue , Suite 301

Tampa, Florida 33675

(eServed)

Douglas G. Griffin, Esquire

School Bo ard of Broward County

600 Southeast 3rd Avenue , 11th Floor

Fort Lauderdale, Florida 33301

(eServed)

Katherine A. Heffner, Esquire

Robert F. McKee, P.A.

1718 East 7th Avenue , Suite 301

Tampa, Florida 33605

(eServed)

Andrew Carrabis, Esquire

Broward Cou nty School Board

600 Southeast 3rd Avenue , 11th Floor

Fort Lauderdale, Florida 33301

(eServed)

Robert W. Runcie, Superintendent

Broward County School Board

600 Southeast Third Avenue , Tenth Floor

Ft. Lauderdale, Florida 33301

Matthew Mears, General Cou nsel

D epartment of E ducation

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)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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 ag ency that will issue the Final Order in this

case.