20-000431TTS Miami-Dade County School Board vs. Verdell L. Jackson Status: Closed Recommended Order on Friday, November 20, 2020.

Summary: The School Board showed, by a preponderance of the evidence, that Respondent?s actions justified a 10-day suspension of her employment.

P RELIMINARY S TATEMENT

In correspondence dated January 16, 2020, Miami - Dade County

School Board (“Petitioner” or “School Board”) issued a letter informing

Verdell L. J ackson (“Respondent”) that the School Board had taken action at

its January 15, 2020 , meeting to suspend her employment for ten (10)

workdays without pay. On the same day, Respondent requested a hearing.

Because the initial letter from the School Board lac ked sufficient detail, the

undersigned ordered Petitioner to file a Notice of Specific Charges (“Notice”),

which Petitioner did on February 14, 2020. The basis for the School Board’s

action, as stated in the Notice , was that just cause existed for Responde nt to

be disciplined for Misconduct in Office pursuant to violations of Florida Administrative Code Rules 6A - 5.056(2) and 6A - 10.081 ; and School Board

Policies 3210 , 3210.01, 3213, and 5630.

The final hearing took place on September 16, 2020. At the heari ng,

Petitioner offered the testimony of J.A., who was a student in Respondent’s

kindergarten class. Petitioner’s Exhibits 1 through 6 and 8 through 10 were

admitted into evidence. Respondent testified on her own behalf and did not

introduce any exhibits. B oth parties submitted proposed recommended

orders, which have been duly considered in this Recommended Order.

All references to the Florida Statutes are to the 2018 version which was in

effect at the time of the matters relevant to these proceedings.

F I NDINGS OF F ACT

1. Petitioner is a duly constituted School Board charged with the duty to

operate, control , and supervise all free public schools within the school

district of Miami - Dade County, Florida.

2. At all relevant times, Respondent was employed by Petitioner as a

teacher at Brentwood Elementary School (“Brentwood ”) and was subject to

the Florida Statutes, the regulations issued by the Florida State Board of

Education, and the policies and procedures of the School Board.

3. On March 8, 2013, prior to the events that are the subject of this case, it

w as reported that Respondent took the arm of a second - grade student who

was not following directions and scratched the student’s face. As a result , on

April 18, 2013, Respondent was issued a Reprimand and g iven directives to

prevent this type of behavior from recurring , specifically , to refrain from

engaging in inappropriate physical contact of any kind with students and to

provide close supervision to students in order to maintain a safe learning

environmen t.

4 . During the 201 8 - 2019 school year, J.A. was a kindergarten student in

Respondent’s class at Brentwood. At the time of the final hearing, J.A. was

an eight - year - old second grader.

5 . A linear narrative of what transpired leading up to Respondent’s

act ions in this case was not established. The material facts were, however,

clearly established based on J.A.’s credible testimony . J.A. testified

consistently and credibly that he was crawling on the floor when Respondent pulled his shirt and scratched him o n the right side of his face. He then sat at

his desk, put his book bag over his face, and cried.

6 . J.A. was accompanied by his mother when he testified. J.A.’s mother

offered guidance during J.A.’s testimony, but not as to any material fact that

is in di spute. J.A.’s mother did not in terfere or lead him to make any

statement s during his substantive testimony about the events of the incident

involving Respondent. J.A. maintained eye contact with the undersigned in the video monitor during the pertinen t por tions of his testimony. He

displayed a high level of intelligence and a mature demeanor for his age.

J.A.’s testi mony that he was crawling on the floor when Respondent pulled

his shirt and scratched his face was credible and is accepted.

7 . In Respondent’s retelling of events, she denied grabbing J.A.’s shirt or

scratching his face at all, whether intentionally or by accident. Respondent’s

credibility was undermined by her claim that she never struck J.A. , or any

other student, in any manner . On cross - exami nation, howe ver, she

acknowledged that “ there was a scratching incident” involving a student in

2013. Respondent’s general denial of the incident was no t credible and is

rejected to the extent that it conflicts with J.A. ’s testimony.

8 . When Respondent ha s a student in class who is not focused or is being

disruptive, she some times asks the student to stand in a corner or doorway to

regroup until the student is ready to return to his or her desk and

participate. Respondent has required J.A. to stand in the corner based on his

behavior and has yelled at him.

C ONCLUSIONS OF L AW

9 . DOAH has jurisdiction over the par ties and subject matter of this

proceeding pursuant to sections 120.569, 120.57(1), and 1012.33 (6)(a)2 . ,

Florida Statutes.

10 . The School Board is responsible for the operation, control,

administration, and supervision of all free public schools within the d istrict.

Art. IX, § 4(b), Fla. Const.; §§ 1001.30 and 1001 .32, Fla. Stat. The School

Board’s powers and duties include providing f or the suspens ion of employees.

§ 1012.22(1)(a), (f), Fla. Stat.

11 . Petitioner bears t he burden of proving its charge of Misconduct in

Office against Respondent by a preponderance, or great er weight, of the

evidence. See McNeil l v. Pinellas Cty. Sch. Bd ., 678 So. 2d 47 6, 477 (Fla. 2d

DCA 1996).

12 . Section 1012.01(2) classifies Respondent as “instructional personnel.”

13 . Section 1012.33(6)(a) states that, “[a]ny mem ber of the instructional

staff … may be suspended or dismissed at any time during the term of the

contra ct for just cause as provided in paragraph (1)(a).”

14. Rule 6A - 5.056 (2) defines Misconduct in Office as one or more of the

following:

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

Education Profession in Florida adopted in Rule 6A - 10.080, F. A. C;

(b) A violation of the Principles of Professional conduct for the Education Profession 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) B ehavior that reduces the teacher’s ability or his

or her colleagues’ ability to effectively perform duties.

15. Rule 6A - 10.081, Principles of Professional Conduct for the Education

Profession in Florida, states , in relevant part:

(1) Florida educators sh all be guided by the

following ethical principles:

(a) 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 achieveme nt 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 wil l

therefore strive for professional growth and will

seek to exercise the best professional judgment and

integrity.

(c) 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 achieve and

sustain the highest degree of ethical conduct.

* * *

(2)(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.

6. Shall not intentionally violate or deny a student’s legal rights.

16. School Bo ard Policy 3210, Standards of Ethical Conduct, provides , in

relevant part:

All employees are representatives of the District

and shall conduct themselves, both in their

employment and in the community, in a manner

that will reflect credit upon themselves a nd the

school system.

A. An instructional staff member shall:

3. 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;

7. not intentionally expose a studen t to

unnecessary embarrassment or disparagement;

8. not intentionally violate or deny a student’s legal rights;

21. not use abusive and/or profane language or

display unseemly conduct in the workplace.

17. School Board Policy 3210.01, Code of Ethics, pr ovides , in relevant part:

All members of the School Board, administrators, teachers and all other employees of the District,

regardless of their position, because of their dual

roles as public servants and educators are to be

bound by the following Code of Ethics. Adherence

to the Code of Ethics will create an environment of

honesty and integrity and will aid in achieving the common mission of providing a safe and high

qu ality education to all District students.

* * *

Application

This Co de of Ethics applies to all members of the

Board, administrators, teachers, and all other

employees regardless of full or part time status. It

also applies to all persons who receive any direct economic benefit such as membership in Board

funded insurance programs. Employees are subject

to various other laws, rules, and regulations

including but not limited to The Code of Ethics for

the Education Profession in Florida and the

Principles of Professional Conduct of the Education

Profession in Florida, F.A.C. Chapter 6A - 10.081,

the Code of Ethics for Public Officers and

Employees, found in F.S. Chapter 112, Part III, and

Policy 3129, which are incorporated herein by reference and this Code of Ethics should be viewed

as additive to these laws, rules and regulati ons. To

the extent not in conflict with any laws, Board policies or governmental regulations, this Code of

Ethics shall control with regard to conduct. In the

event of any conflict, the law, regulation or Board

policy shall control.

Fundamental Principles

The fundamental principles upon which this Code of Ethics is predicated are as follows:

E. Integrity - Standing up for their beliefs about

what is right and what is wrong and resisting

social pressures to do wrong.

F. Kindness - Being sympathetic, helpf ul,

compassionate, benevolent, agreeable, and gentle

toward people and other living things.

H. Respect - Showing regard for the worth and

dignity of someone or something, being courteous

and polite, and judging all people on their merits. It

takes three (3 ) major forms: respect for oneself,

respect for other people, and respect for all forms of

life and the environment.

* * *

Each employee agrees and pledges:

A. To abide by this Code of Ethics, making the

well - being of the students and the honest

pe rformance of professional duties core guiding

principles.

B. To obey local, State, and national laws, codes

and regulations.

C. To support the principles of due process to

protect the civil and human rights of all

individuals.

D. To treat all persons with respec t and to strive to

be fair in all matters.

E. To take responsibility and be accountable for

his/her actions.

F. To cooperate with others to protect and advance

the District and its students.

* * *

Conduct Regarding Students

Each employee:

A. shall mak e 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;

E. shall not intentionally expose a student to

unnecessary embarrassment or disparagement;

F. shall not i ntentionally violate or deny a

student’s legal rights.

18 . School Board Policy 3213, Student Supervision and Welfare, provides ,

in relevant part: “Protecting the physical and emotional well - being of

students is of paramount importance. Each instructional staff member shall

maintain the highest professional, moral, and ethical standards in dealing

with the supervision, control, and protection of students on or off school

property.”

19 . Petitioner proved by a preponderance of the evidence that

Respondent’s c onduct constitutes Misconduc t in Office as contemplated by

r ule 6A - 5.056 (2). Petitioner proved that Respondent engaged in conduct

directly proscribed by r ule 6A - 5.056 (2) as well as violations of the

incorporated provisions of r ule 6A - 10.081 ; and School Boa rd Policies 3210 ,

3210.01, and 3213 .

2 0 . Respondent’s conduct violated r ule 6A - 5.056(2) (a) - (d) based on a plain

and ordinary reading of the r ule . When Respondent pulled J.A.’s shirt and

scratched his face, she violated the Code of Ethics of the Education Profession

in Florida; the Principles of Professional Conduct for the Education Profession in Florida; the adopted school board rules; and displayed behavior

that disrupted J.A.’ s learning environ ment.

21 . Respondent’s actions violated r ule 6A - 10.081, Pri nciples of

Professional Conduct for the Education Profession in Florida , based on a

plain and ordinary reading of the r ule . When Respondent pulled J.A.’s shirt

and scratched his face, she failed to meet her obligation to make a

“ reasonable effort to protec t the student from conditions harmful to learning

and/or to the student’s mental and/or physical health and/or safety. ”

Respondent’ s inappropriate contact with J.A. created a condition harmful to

his physical safety. School Board Policy 3210, Standards of Ethical Conduct,

and School Board Policy 3210.01, Code of Ethics, both include an identical

provision, which Respondent also violated.

22 . Respondent’s conduct violated School Board Policy 3213, Student

Supervision and Welfare, based on a plain and ordina ry reading of the Policy.

When Respondent pulled J.A.’s shirt and scratched his face, she failed to

observe the directive to place paramount importance upon the protect ion of

his physical and emotional well - being. She also failed to maintain the highest

pr ofessional standard with respect to the protection of J.A. in violation of the

Policy.

23 . Additionally, Petitioner alleges that R espondent’s actions exposed J.A.

to unnecessary embarrassment. However, t he record lacks evidence to

support that claim . The record is also devoid of sufficient evidence of

Misconduct in Office as it relates to Respondent’s disciplinary practice with

J.A. and other students whereby Responden t directed them to stand in a

doorway or corner following disruptive behavior. Similarly, there is

insufficient detail in the record to find any violation with respect to J.A.’s

testimony that Respondent yelled at him.

24 . As to the appropriate discipline for Respondent’s violations, the

Progressive Discipline Policy set forth in Article XXI o f the UTD Contract,

Employee Rights and Due Process, section 1, Due Process, paragraph A.1., states, in pertinent part:

The [Miami - Dade County School] Board and Union

recognize the principle of progressive discipline.

The parties agree that disciplinary ac tion may be consistent with the concept of progressive discipline

when the Board deems it appropriate, and that the

degree of discipline shall be reasonably related to the seriousness of the offense.

2 5 . The record evidence substantiates that the School B oard has followed

progressive discip line regarding Respondent’s prior incident of ina ppropriate

contact with a student, and Respondent received a written reprimand for

such conduct in 2013. Accordingly, the seriousness of Respondent having a

second inciden t of inappropriate contact with a student, and the specific

misconduct of pulling a kindergarten student’s shirt and scratching his face,

warrants imposing a ten - workday suspension from employment as

reasonable discipline for the offense at issue.

R ECOMME NDATION

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

R ECOMMENDED that The School Board of Miami - Dade County, Florida, enter

a Final Order suspending Respondent’s employment with the School Board

for ten ( 10 ) workdays without pay .

D ONE A ND E NTERED this 20th day of November , 2020 , in Tallahassee,

Leon County, Florida.

B RITTANY O. F INKBEINER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(85 0) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of November , 2020 .

C OPIES F URNISHED :

Cristina Rivera, Esquire

Christopher J. La Piano, Esquire

Michele Lara Jones, Esquire

Miami - Dade County School Board

1450 Northeast 2nd Avenue , Suite 430

Miami, Florida 33132

(eServed)

Branden M. Vicari, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North , Suite 110

Clearwater, Florida 33761

(eServed)

Matthew Mears , General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Alberto M. Carvalho, Superintendent

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 912

Miami, F lorida 33132

Richard Corcoran, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submi t 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.