20-004552TTS Broward County School Board vs. Halyna Shvank Status: Closed Recommended Order on Tuesday, May 11, 2021.

Summary: School Board failed to prove that teacher verbally or physically abused two of her students; recommend that three-day suspension be rescinded.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

B ROWARD C OUNTY S CHOOL B OARD ,

Petitioner ,

vs. Case No. 20 - 4552 TTS

H ALYNA S HVANK ,

Respondent .

/

R ECOMMENDED O RDER

This case came before Administrative Law Judge John G.

Van Laningham , Division of Administrative Hearings ( Ñ DOAH Ò ) , for final

hearing by Zoom teleconference on February 1 1 , 20 2 1 .

A PPEARANCES

For Petitioner: Andrew Carrabis, Esquire

Broward County School Board

600 Sout heast Third Avenue , Eleventh Floor

Fort Lauderdale , Florida 3 3301 - 3125

For Respondent: Robert F. McKee , Esquire

Robert F. McKee , P.A.

1718 East Seven th Avenue , Suite 3 0 1

Tampa , Florida 33 605

S TATEMENT OF T HE I SSUE

The issue is whether the district school board has just cause to suspend an

instructional employee for three days without pay , where it has alleged that

the teacher verbally and physically abused two of her exceptional education

students .

P RELIMINARY S TATEMENT

On October 6 , 2020 , Petitioner Broward County School Board (the ÑSchool

BoardÒ or ÑDistrictÒ ) approved the issuance of an Amended Administrative

Complaint against Respondent Halyna Shvank ( Ñ Shvank Ò ) , charging the

instructional employee with disciplinable offe nse s based upon allegations

that, on September 18, 2019, s he yelled at and roughly handled two of her

students, both of whom have autism and receive special education services .

Believing that these alleged incidents constitute just cause for a three - day

suspension of ShvankÔs employment, without pay , the District imposed the

punishment subject to further administrative proceedings .

Shvank timely requested a formal administrative hearing . B y letter dated

October 1 4 , 20 20, the School Board referred the matter to DOAH . Upon

assignment, the undersigned set the final hearing for December 10 , 2020, a

date which was later continued to February 1 1, 202 1 .

At the final hearing, the District called as witnesses Diego Balin, Galina

Markevich, Kelly Walker, and Elizabeth Williams. Petitioner Ô s Exhibits 1

through 17 were received in evidence without objection . Shvank testified on

her own behalf and offered the testimony of Emma Hirsch, Linda Silvi tella,

and Jocelyn Cosme . Shvank did not offer any exhibits .

The final hearing transcript was filed on March 2 , 20 2 1 . Each party

timely filed a Proposed Recommended Order , and these submissions were

considered in the preparation of this Recommended Orde r.

Unless otherwise indicated, citations to the off icial statute law of the state

of Florida refer to Florida Statutes 20 20 , except that all references to statutes

or rules defining disciplinable offenses or prescribing penalties for

committing such offenses are to the versions that were in effect at th e time of

the alleged wrongful acts .

F INDINGS OF F ACT

1 . The School Board is the constitutional entity authorized to operate,

control, and supervise the Broward County Public School System . At all

times relevant, it was ShvankÔs employer.

2 . A s an instructional employee of the School Board , Shvank holds a n

annual contract , and she may be dismissed or suspended during the term of

the contract only for just cause . Shvank is certified to teach exceptional

student education, and du ring the relevant scho ol year, 2019 - 2020, she was

assigned to Dania Elementary School, where s he taught a first - grade class

composed of nine students with autism .

3 . In this proceeding, the School Board seeks to suspend Shvank for three

days without pay based up on three separa te incidents, which occurred in her

classroom on September 18 , 2019 . Two of these incidents involved a student

named M.S. , while the third was an interaction with L.G., another student .

4 . The only evidence against Shvank having any meaningful probative

value in the judgment of the fact - finder are video s recorded by a college

student who used his iPhone to film Shvank while observing her class

pursuant to his own studies as an education major . He later edited the raw

footage, which was reduced t o three brief clips, hereafter the ÑChin Segment,Ò

the ÑWords Segment, Ò and the ÑDance Segment. Ò Before turning to these

clips , some findings about how the video s came to be made are in order.

5 . In September 2019, Diego Balin was a student at Broward Coll ege in

his final year of a program leading to a degree in education . As part of his

studies, Mr. Balin needed to complete a practicum , whereby he would be

placed in a classroom to observe an experienced teacher in action . Mr. Balin

was assigned to ShvankÔs classroom.

6 . As a student teacher, Mr. Balin was present in ShvankÔs classroom on

two different days , the first being a date before that of the subject incidents .

There is some dispute as to how long Mr. Balin stayed that first day , but he

saw enough to conclude that Shvank was too aggressive with the students for

his taste . It should be added that t he two other adults in the classroom

(besides Shvank and Mr. Balin), namely a paraprofessional and a speech -

language pathologist, did not observe any questionable behavior on ShvankÔs

part, either that day or at any time .

7 . The next time that Mr. Balin was in ShvankÔs classroom turned out to

be September 18, 2019 . Within about ten minutes after arriving, Mr. Balin

saw what he perceived as aggressive behavior by Shvank, so he began

secretly video recording her using the iPhone in his shirt pocket as a

concealed body camera . In total, Mr. Balin recorded approximately two hoursÔ

worth of footage , capturing about half of his time in the classro om that day.

8 . Reviewing the video later, Mr. Balin identified three incidents that

bothered him . He reported his concerns to Kelly Walker, the professor

overseeing his practicum , and told her that he had made a video recording .

Professor Walker asked for a copy of the video.

9 . Mr. Balin edited the footage by cutting out three short clips, as

mentioned , which together comprise a bout three and a half minutes of

playing time . The Chin Segment is 23 seconds long . The Words Segment runs

for one minute, 23 sec onds . The Dance Segment is one minute, 46 seconds in

duration . Mr. Balin sent these clips to Professor Walker . After seeing the

video clips, Professor Walker reported her suspicion of possible child abuse to,

among others, the principal of ShvankÔs school and the Department of

Children and FamiliesÔ abuse hotline .

10 . The DistrictÔs case depends almost entirely upon the persuasiveness of

these three clips . For that reason, the undersigned notes that, as a fact -

f inder, he must interpret the videos , which do not convey an obvious ,

unambiguous meaning . Indeed, t hese videos are neither objective nor

definitive . Heavily edited for length, thereby potentially depriv ing the viewer

of important context, th ey afford only one visual perspective, which is

sometimes obs tructed , m aking it impossible to know what is being missed or

possibly misperceived . Crucially, t he most relevant actions of Shvank, i.e.,

the ones which the District contends are disciplinable, take place literally

within fractions of a second, a mere bli nk of the eye . It is not an

overstatement to say that a viewer can see what he or she wants to see in

these video clips.

11 . With that in mind, the undersigned notes, further, that as a fact -

finder, he is troubled by the provenance of these clips . T here is a narrative at

work here , which the undersigned believes might tend to bias some viewers

against Shvank , making them more likely to ÑseeÒ abuse in the videos .

12 . To begin, we have the apparently altruistic whistleblower , Mr. Balin,

who is shocked by what he perceives as child abuse which no one else seems

to notice, impliedly because the classroom ÑregularsÒ have grown accustomed

or indifferent to ShvankÔs aggressive manner . He is appalled , but i nstead of

reporting his concerns to the school administratio n , which could have

investigated the matter in the ordinary course if the allegations warranted

such attention, Mr. Balin decide s unilaterally that there is a reasonable basis

for an investigation, which he will personally carr y out .

13 . To gather evidence, Mr. Balin conduct s covert electronic surveillance

of Shvank , effectively deputiz ing himself as an undercover agent of the

District . This was a questionable decision for several reasons, and one the

District should be hesitant to condone . Some of the reasons are legal in

nature , others practical.

14 . From a legal standpoint, the question as to whether the secret

recording of Shvank constituted an illegal interception under section 943.03,

Florida Statutes, is one that could be fairly debated . Becau se Shvank did not

object pursuant to section 934.06 to the admission of the videos into evidence,

however, the question need not be decided here . Even if the covert

interception of her oral communications was legal, however, as it might have

been, there is something unsavory about secretly videotaping a teacher on a

fishing expedition for evidence of wrongdoing that has yet to occur , based on

suspicions that have not been vetted for reasonableness, either by the

teacherÔs supervisors or by law enforcement .

15 . Another legal issue arising from these circumstances is whether

Mr. BalinÔs videos constitute education records subject to the privacy

protections afforded under the Family Educational Rights and Privacy Act .

See 20 U.S.C . § 1232g . There are , after all , identifiable student images in

these video clips . The students shown in the clips , moreover, are enrolled in

the DistrictÔs special education program, which means that the videos might

also come under the confidentiality provisions of the Individuals wit h

Disabilities Education Act . See 20 U.S .C. § 1417 (c) . These issues need not be

decided here . The point is that the decision to covertly videotape Shvank and

her students is one that Mr. Balin should not have made on his own

authority, and it is one that the District might want to distance itself from,

given that the lawfulness of such surveillance is not free from doubt.

16 . Practically speaking, this case might have a ch illing effect on teachersÔ

willingness to welcome student teachers into their classrooms . Shvank had a

spotless record until the student teacher arrived . But then, h er life was

upended by Mr. BalinÔs brief appearances in her classroom . In addition to

this disciplinary action, the Balin videos wound up in the news, generating

bad publicity for Shvank, which surely damaged her professional reputation .

She was forbidden from entering a classroom to teach for nearly one and a

half years . None of this would have happened if Shvank had refused to let the

student teacher observe her at work . Considering Shvank Ôs experience , it

takes no imagination to foresee that, in the future, some teachers might

think twice about hosting a student teacher . (In the absence of evi dence to

the contrary, of which there is none, the undersigned presumes that a teacher

would not be required to host a teaching student if he or she preferred not to.)

17 . None of the foregoing factors impugn the credibility of the video clips

per se, but they do shed light on Mr. BalinÔs credibility . Mr. Balin is not, in

the fact - finderÔs view, as disinterested a witness as he appear s to be at first

blush . Rather, Mr. Balin was a motivated witness, as shown by the fact that

he decided personally to gather evidence of anticipated wrongdoing on

ShvankÔs part . While there is no evidence that he had any preexisting animus

towards Shvank, Mr. Balin secretly recorded her because he wanted to find

proof that she was being abusive with her students , to corroborate his own

perception of ShvankÔs conduct . As stated above , if , like Mr. Balin, you want

to see abusive behavior in these videos , then that is what you will likely see.

18 . Mr. Balin testified credibly as to his opinion about what the video

c lips show . Mr. Balin , however, sincerely and honestly believe d before

September 18, 2019, that Shvank was overly aggressive with her students ,

a nd , to repeat, he wanted his surveillance videos to prove him right .

Mr. Balin, therefore, was primed to see abu se in the footage he shot .

Mr. BalinÔs evident sincerity and obvious conviction , moreover, may have

primed other viewers to see what he sees in the videos . The undersigned , in

watching the videos, has made a conscious effort neither to expect to see, nor

to ignore, evidence of wrongdoing .

19 . The Chin Segment . At the beginning of this clip, Shvank is standing

behind her desk . She looks up and sees M.S. doing something that attracts

her attention , whereupon s he walks briskly over to the student . Standing

before M.S., Shvank exclaims , ÑDidnÔt I say ÓnoÔ? Ò As she speaks , she reaches

out and places her finger under M.S.Ôs chin, lifts the finger, and wags it in a

gesture signaling Ñno, no, no. Ò As this happens, M.S.Ôs head jerks backwards .

Th e District contends that Shvank snapped M.S. Ôs head back by forcefully

pushing his chin upwards .

20. A casual viewer might agree with the District . The entire Ñhead

snappingÒ episode takes place within the eight - second mark of the video clip .

It happens fa st , and M.S.Ôs head does appear to jerk backwards .

Unfortunately, the video does not afford a clear line of sight , and the angle of

the shot is less than ideal . By watching the clip in slow motion, frame by

frame, however, the undersigned has determined that Shvank did not likely

snap M.S.Ôs head back . For one thing, her fingertip barely touches his chin ,

doing so only glancingly at best . For another, there is simply little or no

visual evidence of e xertion or use of force on ShvankÔs part, sufficient to

produce M.S.Ôs reaction . Neither her hand nor her arm moves with the kind of

sudden , propulsive force that would be required to transfer enough energy to

M.S.Ôs chin to propel his head backwards . In c ontrast, M.S.Ôs shoulders

appear to shrug simultaneously , a flinching movement consistent with the

theory that M.S. jerked his head back under his own power , perhaps because

he was startled or su r prised .

21 . It is found that, more likely than not, M.S. him self threw his head

back when Shvank place d her finger under his chin .

2 2 . After this, the video shows Shvank reposition ing M.S. in his chair so

that he is sitting upright with his arms on the desk . While doing this, Shvank

says , ÑNow, close your mouth, IÔ m going to watch you. Ò The District contends

that Shvank Ñmanhandle[d]Ò M.S. as she situated him at his desk . The

undersigned sees no persuasive evidence of such rough treatment in the

video . Rather, Shvank appears to be making sure that M.S. is properly

s eated.

23 . Shvank testified credibly that she had observed M.S . pushing his chair

away from the desk, which caught her eye because he did this sort of thing

ahead of engaging in self - injurious behavior, i.e., head banging . So, she

rushed over to stop him . B ecause M.S. is nonverbal and low - functioning,

Shvank put her finger under his chin as a signal for him to look up at her and

pay attention . She repositioned him at the desk to prevent him from trying

again to harm himself . ShvankÔs testimony is consistent with the video clip

and is credited as truthful .

24 . The Words Segment . This clip shows Shvank working one - on - one with

M.S. to teach him ÑBÒ words such as ÑbusÒ and Ñbird. Ò She and the student

are sitting in chairs next to each other at a round table . S hvank speaks a

word, e.g., Ñbus,Ò and instructs M.S. to touch the flashcard having a picture of

a bus . ShvankÔs voice is loud, but the classroom is a noisy environment, and

she is clearly trying to keep the studentÔs attention focused on the exercise .

The District argues that Shvank was ÑyellingÒ at, and being ÑaggressiveÒ

with, M.S., but the undersigned finds that she was merely instructing M.S. in

a raised voice appropriate to the setting and the purpose .

2 5 . At one point, Shvank says, ÑThis is working . Y ou donÔt want to hear

it? Ò M.S. appears to have leaned away from the flashcards and stopped

participating in the exercise . Shvank puts her arm around M.S.Ôs shoulder

and then pats his head, pulling him closer, so that he can get back to the

lesson . The Dis trict contends that Shvank slapped M.S.Ôs head out of

frustration, but the video clip does not support such a finding . When the clip

is viewed frame by frame, ShvankÔs gestures are seen, not as aggressive, but

as affectionate . She was not frustrated but, r ather, was trying to redirect

M.S. and put him back on task .

26 . The Dance Segment . In this clip, Shvank is dancing with the students

to a recording of the Mexican Hat Dance . She is standing behind, and

dancing with, L.G . Most of this video is unremarkable . At about the one

minute, 30 second mark, L.G. drops from view, having flopped to the floor .

Shvank gets him up and they continue with the dance, until L.G. does

something with his hands that the camera fail s to capture . Possibly, L.G.

reach es out for the student next to him . Whatever L.G. has done , Shvank

reprimand s him, saying, ÑNo! No food. Ò Shvank testified that this meant she

would withhold L.G.Ôs snack as a punishment . When she tells L.G. Ñno,Ò

Shvank cups his cheeks with her open hands and points h is face upwards to

look at her . The District contends that Shvank Ñgrab[bed] L.G. under the

jawline and yank[ed]Ò his head up . The video does not support this

characterization . To the contrary, the video shows that ShvankÔs hand did not

grab or otherwise t ake hold of L.G.Ôs face . Her hands are open, fingers

straight ahead . ShvankÔs touch was appropriate to the situation and not

aggressive or punitive .

27 . The District claims that L.G. immediately covered his ears after

Shvank touched him, implying that Shva nk had hurt his ears . L.G. does

indeed briefly cover his ears, but the video does not support a finding that he

did so because Shvank injured him . There is little or no visual evidence that

Shvank made any contact with L.G . Ôs ears, much less sufficient con tact to

cause harm . The undersigned credits ShvankÔs testimony that L.G. covered

his ears in reaction to being told that he would not be receiving a snack, a

gesture meaning he did not want to hear that message .

D ETERMINATION OF U LTIMATE F ACT

28 . The School Board has failed to prove its allegations against Shvank by

a preponderance of the evidence.

C ONCLUSIONS O F L AW

29 . DOAH has personal and subject matter jurisdiction in this proceeding

pursuant to sections 1012.33(6)(a)2., 120.569, and 120.57(1), F lorida Statutes.

30 . A district school board employee against whom a disciplinary

proceeding has been initiated must be given written notice of the specific

charges prior to the hearing . Although the notice Ñ need not be set forth with

the technical nicety or formal exactness required of pleadings in court, Ò it

should Ñ specify the [statute,] rule, [regulation, policy, or collective bargaining

provision] the [school board] alleges has been violated and the conduct which

occasioned [said] violation. Ò Jacker v. Sch. Bd. of Dade Cty. , 426 So. 2d 1149,

115 0 - 51 (Fla. 3d DCA 1983) (Jorgenson, J. concurring).

31 . Onc e a school board, in its notice of specific charges, has delineated

the offenses alleged to justify termination, those are the only grounds upon

which di smissal may be predicated . See Lusskin v. Ag. for Health Care

Admin. , 731 So. 2d 67, 69 (Fla. 4th DCA 1999); Cottrill v. Dep Ô t of Ins. ,

685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Klein v. Dep Ô t of Bus. & Prof Ô l

Reg. , 625 So. 2d 1237, 1238 - 39 (Fla. 2d DCA 1 993); Delk v. Dep Ô t of Prof Ô l

Reg. , 595 So. 2d 966, 967 (Fla. 5th DCA 1992); Willner v. Dep Ô t of Prof Ô l Reg.,

Bd. of Med. , 563 So. 2d 805, 806 (Fla. 1st DCA 1990), rev. den . , 576 So. 2d 295

(Fla. 1991).

32 . In an administrative proceeding to suspend or dismiss a member of

the instructional staff, the school board, as the charging party, bears the

burden of proving, by a preponderance of the evidence, each element of the

charged offense(s) . See McNeill v. Pinellas Cty. Sch. Bd. , 678 So. 2d 476, 477

(Fla. 2d DCA 1996); Sublett v. Sumter Cty. Sch. Bd. , 664 So. 2d 1178, 1179

(Fla. 5th DCA 1995); MacMillan v. Nassau Cty. Sch. Bd. , 629 So. 2d 226

(Fla. 1st DCA 1993).

33 . The instructional staff member Ô s guilt or innocence is a question of

ultimate fact to be de cided in the context of each alleged violation . McKinney

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

653 So. 2d 489, 491 (Fla. 1st DCA 1995).

34 . In its Amended Administrative Complaint, the D istrict charged

S hvank with m iscon duct in o ffice and other offenses, based on Mr. BalinÔs

videos, which it alleges show Shvank being verbally or physically abusive to

her students M. S. and L.G.

35 . The School Board , however, failed to prove, by a preponderance of the

evidence, that Shvank behaved as alleged . Thus, the charges against Shvank

necessarily fail, as a matter of fact . Due to this dispositive failure of proof, it

is not necessary to render additional conclusions of law.

R ECOMMENDATION

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

R ECOMMENDED that the Broward County School Board enter a final order

exonerating Halyna Shvank of all charges brought against her in this

proceeding and awarding her back salary and bene fits as required under

section 1012.33(6)(a) .

D ONE A ND E NTERED this 11th day of May , 202 1 , in Tallahassee, Leon

County, Florida.

S

J OHN G. V AN L ANINGHAM

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of May , 202 1 .

C OPIES F URNISHED :

Andrew Carrabis, Esquire Matthew Mears, General Counsel

Broward County School Board Department of Education

600 Southeast Third Avenue , Eleventh Floor Turlington Building, Suite 1244

Fort Lauderdale, Florida 3330 1 - 3125 325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Robert F. McKee, Esquire

Robert F. McKee, P.A. Richard Corcoran, Commissioner

1718 East Seven th Avenue, Suite 301 of Education

Tampa, Florida 33605 Department of Education

Turlington Building, Suite 1514

Robert W. Runcie, Superintendent 325 West Gaines Street

Broward County School Board Tallahassee, Florida 32399 - 0400

600 Southeast Third Avenue, Tenth Floor

Fort Lauderdale, Florida 33301 - 3125

N OTICE O F 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 agency that will issue the Final Order in this

case.