20-004747TTS Miami-Dade County School Board vs. Linda A. Moreau Status: Closed Recommended Order on Thursday, April 22, 2021.

Summary: School Board failed to prove by a preponderance of evidence that teacher's conduct constituted misconduct in office or a violation of School Board policies justifying her suspension.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

M IAMI - D ADE C OUNTY S CHOOL B OARD ,

Petitioner ,

vs. Case No. 20 - 4747TTS

L INDA A. M OREAU ,

Respondent .

/

R ECOMMENDED O R DER

This case came before Administrative Law Judge Darren A. Schwartz of

the Division of Administrative Hearings ( Ñ DOAH Ò ) for final hearing on

February 10, 2021, by Zoom conference.

A PPEARANCES

For Petitioner: Michele Lara Jones, Esquire

Miami - Dade County School Board

1450 Northeast 2nd Avenue, Suite 430

Miami, Florida 33132

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761 - 1526

S TATEME NT OF T HE I SSUE

Whether just cause exists for Petitioner to suspend RespondentÔs

employment as a teacher , without pay , for five days .

P RELIMINARY S TATEMENT

By letter dated September 10, 2020, Petitioner, Miami - Dade County

School Board ( Ñ School Board Ò ), n otified Respondent, Linda A. Moreau

( Ñ Respondent Ò ), of the School BoardÔs intent to suspend her employment as a

teacher , without pay , for five days. On September 11, 2020, Respondent

timely requested an administrative hearing. Subsequently, the School Boar d

referred the matter to DOAH to assign an Administrative Law Judge ( Ñ ALJ Ò )

to conduct the final hearing. The case was initially assigned to ALJ Cathy M.

Sellers.

The Notice of Specific Charges contains certain factual allegations, and ,

based on those fa ctual allegations, the School Board charged Respondent

with Misconduct in Office. The final hearing was initially set for

December 16, 2020. On December 8, 2020, the School Board filed a joint

motion to continue the final hearing. On December 8, 2020, ALJ Sellers

entered an Order granting the motion and resetting the final hearing for

February 10, 2021. On February 8, 2021, this matter was transferred to the

undersigned for all further proceedings. On February 9, 2021, the School

Board filed a motion to exc lude testimony regarding RespondentÔs character.

The final hearing was conducted on February 10, 2021, with all parties

present. At the outset of the hearing, the undersigned addressed the School

BoardÔs motion. RespondentÔs counsel indicated the witness es who were the

subject of the motion would not be called to testify. Accordingly, the

undersigned denied the motion as moot.

At the hearing, the School Board presented the testimony of Maria G.

Zabala, Mary Kate Parton, Dr. Charlene Olicker, Elvia Nunez , and Jason

Hocherman. The School BoardÔs Exhibits 1 through 6, 9 through 11, and 17

through 20 were received into evidence. Respondent testified on his own

behalf. RespondentÔs Exhibits 1, 2, 5, and 7 were received into evidence .

The one - volume final he aring Transcript was filed at DOAH on March 24,

2021. On March 30, 2021, Respondent filed an unopposed motion to extend

the deadline to file proposed recommended orders by seven days. On March

31, 2021, the undersigned entered an Order granting the motion. The parties

timely filed proposed recommended orders, which were considered in the

preparation of this Recommended Order.

On February 1, 2021, the parties filed their Pre - Hearing Stipulation, in

which they stipulated to certain facts. These facts have b een 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 Miami - Dade

County, Florida .

2. The School Board hired Respondent in 2004 as a teacher at Dr. Michael

M. Krop Senior High School, a public school in Miami - Dade County. Since the

2009 school year , and at all times relevant to this case, Respondent was

employed at David K. Lawrence, Jr. , K - 8 Center ( Ñ David Lawrence Ò ), a public

school in Miami - Dade County, pursuant to a professional services contract. 1

3. At all times relevant to this case, RespondentÔs employment with the

School Board was governed by Florida law, the School BoardÔs policies, and

the collective bargaining agreement between the School Board and the

United Teachers of Dade. The collective bargaining agreement provides that:

Ñ Any member of the instructional staff may be suspended or dismissed at any

time during the school year, provided that the charges against him/her are

based upon Florida Statutes. Ò

1 Respondent is no longer a teacher at David Lawrence. However , she is still employed by the

School Board as a teacher at another school.

4. The alleged conduct giving rise to the School BoardÔs proposed

suspension of Respondent occurred during the 2018 - 2019 school year, at

which time Respondent was a special education teacher at David Lawrence,

teaching fourth and fifth grade autistic students in the schoolÔs Ñ ESE Ò

special education prog ram. At that time, Mary Kate Parton was principal;

Dr. Charlene Olicker was assistant principal; Elvia Nunez was a classroom

paraprofessional assigned to RespondentÔs classroom; and Jason Hocherman

was a one - to - one paraprofessional assigned to another clas sroom.

5. The alleged conduct giving rise to the School BoardÔs proposed

suspension of Respondent is contained in paragraphs 16 and 18 of the Notice

of Specific Charges. 2

Allegations Involving Ms. Nunez on February 15, 2019

6. The School Board alleges in paragraph 16 of the Notice of Specific

Charges that Ñ [o]n February 15, 2019, a student under RespondentÔs

supervision hit Ms. Nunez in the face causing her face to swell and causing

Ms. Nunez to feel nauseous and dizzy. Ò According to the School Board, t he

incident Ñ occurred in RespondentÔs presence, however, Respondent prevented

Ms. Nunez from obtaining medical treatment, did not assist Ms. Nunez with

any treatment and prevented Ms. Nunez from reporting it to the

administration. Ò The School Board further alleges Respondent Ñ failed to write

a Student Case Management Form ( Ñ SCM Ò ) on the student for his actions

toward Ms. Nunez. Ò

7. On the day of the incident, Ms. Nunez wrote a statement detailing her

version of the events. In her statement, Ms. Nunez expla ined she was in the

classroom when a female student hit Ms. Nunez on her face with her elbow

2 At hearing, the School Board abandoned the allegations in paragraph 17 of the Notice of

Specific Charges related to a purported incident on February 22, 2019 . Accordingly, no

f indings are made with respect to the allegations in paragraph 17 of the Notice of Specific

Charges.

and fist. Ms. Nunez called the office on the radio for assistance, and Dr.

Olicker and Ms. Mejia came to the room to assist her. Ms. Mejia stayed with

Ms. Nunez un til Respondent finished what she was doing. They all took the

students to lunch. Ms. Nunez stayed outside the cafeteria and told another

assistant principal what had happened. In the meantime, another student

started running behind the bathroom in the cafe teria, and Ms. Nunez and

other employees went to catch the student. Ms. Nunez later returned to the

classroom and told another staff member she was not feeling well. Ms. Nunez

then went to the library and office and told Dr. Olicker she Ñ was feeling

dizzy. Ò Dr. Olicker called Ñ 911, Ò and Ms. Nunez was transported to the

hospital by fire rescue .

8. Respondent did not witness a student hit Ms. Nunez and she had no

knowledge of the incident at the time . Respondent did not prevent Ms. Nunez

from obtaining m edical treatment and she did not prevent Ms. Nunez from

reporting the incident to administration .

9. Respondent did not write an SCM referral for a student because she did

not witness the incident. There is no School Board rule or policy requiring

Respond ent to write an SCM referral on a student for an incident she did not

witness or have knowledge of at the time. 3

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

demonstrates that Respondent did not engage in any of the conduct as

allege d in paragraph 16 of the Notice of Specific Charges, which constitutes

misconduct in office .

Allegations Involving J.H. on February 25, 2019

11. In paragraph 18 of the Notice of Specific Charges, the School Board

alleges that Ñ[ o ] n February 25, 2019, Jas on Hocherman (ÓMr. HochermanÔ) , a

3 In any event, Dr . Olicker submitted an SCM referral on the student.

paraprofessional at Lawrence K - 8 while in the schoolÔs hallway [ , ] observed

J.H. in the hallway without Respondent . Ò

12. J.H. was a student in RespondentÔs class who frequently and

spontaneously ran from the classroom. A ccording to Respondent, J.H. would

run as often as 12 to 15 times a day. J.H. was well known as a Ñ runner Ò by

Mr. Hocherman, other staff members, and the schoolÔs administ rators . 4

13. On February 25, 2019, Mr. Hocherman was leaving his assigned

classroom f or the day at around 3:00 p.m. , when students were also being

dismissed for the day. At that time, he observed J.H. unsupervised standing

in the corner of the first floor interior hallway of the building by the doors

leading into the main lobby of the scho ol .

14. Mr. Hocherman does not know how long J.H. was standing in the

hallway without adult supervision. Mr. Hocherman asked J.H. if he was

alright , but J.H. did not respond. A few minutes after Mr. Hocherman first

observed J.H., Respondent came upon the scene. According to Mr.

Hocherman, J.H. became agitated or scared upon RespondentÔs arrival on the

scene. Mr. Hocherman tried to calm J.H. down, but J.H. took off running

towards the stairwell in the middle of the hallway.

15. J.H. often ran to the t hird floor. Respondent told J.H. she was not

going to chase after him, hoping that would stop him from running. J.H.

ignored Respondent and ran up the stairs to the third floor landing of the

stairwell.

16. Respondent and Mr. Hocherman followed in pursuit of J.H. Mr.

Hocherman got to J.H. first, was able to calm him down, and took him by the

hand directly to the bus loop in front of the school to get on his bus to go

home . The evidence presented at the hearing did not establish that J.H., a

known runner, w as eve r in any danger.

4 Notably, J.H. was the student who ran behind the bathroom in the cafeteria on

Fe bruary 15, 2019.

17. J.H. got on the bus, went home, and did not suffer any injuries as a

result of the incident .

18. Under the particular fact s of this case, RespondentÔs conduct was not

inappropriate. In sum, the persuasive and credible evidence adduced at

hearing demonstrates that on February 25, 2019, Mr. Hocherman Ñ observed

J.H. in the hallway without Respondent, Ò as alleged in paragraph 18 of the

Notice of Specific Charges. However, such conduct does not constitute

misconduct in office.

C ON CLUSIONS OF L AW

19. DOAH has jurisdiction of the subject matter and the parties to this

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

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

section 1012.01(2), Flo rida Statutes. The School Board has the authority

to suspend employees for Ñ just cause Ò pursuant to sections 1012.22(1)(f),

1012.33(1)(a), and 1012.33(6)(a).

21. The School BoardÔs allegations are limited to those contained within

the Notice of Specific Ch arges. M a cMillan v. Nassau Cty. Sch. Bd. , 629 So. 2d

226, 228 (Fla. 1st DCA 199 3 ); Trevisani v. DepÔt of Health , 908 So. 2d 1108,

1109 (Fla. 1st DCA 2005); Cottrill v. DepÔt of Ins. , 685 So. 2d 1371, 1372 (Fla.

1st DCA 1996). The School Board has the burde n of proving, by a

preponderance of the evidence, that Respondent committed the violations

alleged in the Notice of Specific Charges and that such violations constitute

Ñ just cause Ò for suspension. § § 1012.33(1)(a) and (6)(a), Fla. Stat.; Dileo v.

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

22 . The preponderance of the evidence standard requires proof by Ñ the

greater weight of the evidence Ò or evidence that Ñ more likely than not Ò 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 applicable to loss of a license or

certification. Cisneros v. Sch. Bd. of Miami - Dade Cty. , 990 So. 2d 1179

(Fla . 3d DCA 2008).

23. 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. Turlington , 480 So. 2d 150, 153 (Fla. 1st DCA

1985); McKinney v. Castor , 667 So. 2d 387, 389 (Fla. 1st DCA 1995).

24. Section s 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 Ñ just cause. Ò § § 1012.33(1)(a) and (6)(a), Fl a. Stat. Ñ Just

cause Ò is defined in section 1012.33(1)(a) to include Ñ misconduct in office. Ò

25. Section 1001.02(1), Florida Statutes, grants the State Board of

Education authority to adopt rules pursuant to sections 120.536(1) and

120.54 to implement pro visions of law conferring duties upon it.

26. Consistent with this rulemaking authority, the State Board of

Education has defined Ñ misconduct in office Ò in Florida Administrative Code

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

(2) Ñ Misconduc t in Office Ò means one or more of the

following:

* * *

(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.

27. Rule 6A - 5.056(2)(b) incorporates by reference Florida Administrative

Code Rule 6A - 10.081, which is titled Ñ Principles of Professional Conduct for

the Education Profession in Florida. Ò Rule 6A - 10.081(1)(a) and (2)(a)

provides, in pertinent part:

(1) Florida educators shall 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

achievement of these standards are the freedom to

learn and to teach and the guarantee of equal

opportunity to all.

(b) The educatorÔs primary professional concern will

always be for the student and for the development

of the studentÔs potential. The educator will

therefore strive for professional growth and will

se ek to exercise the best professional judgment and

integrity.

(c) Aware of the importance of maintaining the

respect and confidence of oneÔs colleagues, of

students, of parents, and of other members of the

community, the educator strives to achieve and

su stain the highest degree of ethical conduct.

(2) Florida educators shall comply with the

following disciplinary principles. Violation of any of

these principles shall subject the individual to

revocation or suspension of the individual

educatorÔs certifi cate, or the other penalties as

provided by law.

(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 healt h

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.

28. School Board Policy 3210, Standards of Ethical Conduct, pr ovides, in

pertinent 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 and the

school system.

A. An instructional sta ff 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 student to

unnecessa ry embarrassment or disparagement;

8. not intentionally violate or deny a student's legal

rights;

* * *

17. maintain honesty in all professional dealings;

* * *

33. report any criminal act, and/or disruptive,

and/or inappropriate b ehavior to the administrator

or designee to whom the employee is responsible;

29. School Board Policy 3210.01, Code of Ethics, provides, in pertinent

part:

All members of the School Board, administrators,

teachers and all other employees of the Distric t,

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

quality education to all District students.

* * *

Application

This Code 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, whi ch are incorporated

by reference and this Code of Ethics should be

viewed as additive to these laws, rules and

regulations. To the extent not in conflict with any

laws, Board policies, or governmental regulations,

this Code of Ethics shall control with reg ard 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:

* * *

C . Fairness Ï Treating peop le impartially, not

playing favorites, being open - minded, and

maintaining an objective attitude toward those

whose actions and ideas are different from our own;

* * *

E. Integrity Ï Standing up for their beliefs about

what is right and what is wrong and resisting

social pressures to do wrong;

F. Kindness Ï Being sympathetic, helpful,

compassionate, benevolent, agreeable, and gentle

toward people and other living things.

* * *

H. Respect Ï 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.

I. Responsibility Ï Thinking before acting and being

accountable for their actions, paying attention to

others and responding to their needs.

Responsibility emphasizes our positive obligation to

care for each other.

Each employee agrees and pledges:

A. To abide abide by this Code o f Ethics, making

the well - being of the students and honest

performance 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 an d human rights of all

individuals;

D. To treat all persons with respect and to strive to

be fair in all matters;

E. To take responsibility and be accountable for

his/her actions;

* * *

G. To cooperate with others to protect and advance

the Dis trict and its students;

* * *

Conduct Regarding Students

Each employee:

A. shall make reasonable effort to protect the

student from conditions harmful to learning and/or

to the studentÔs mental and/or physical health

and/or safety, including but not limited to, making

a report of suspected child abuse or neglect in

accordance with Policy 8462;

B. shall not unreasonably restrain a student from

independent action in pursuit of learning;

C. shall not unreasonably deny a student access to

div erse points of view;

30. As detailed above, Respondent did not witness a student hit Ms.

Nunez, and the School Board failed to prove that Respondent prevented Ms.

Nunez from obtaining medical treatment or reporting the incident, as alleged

in paragraph 18 of the Notice of Specific Charges. Moreover, there is no

School Board rule or policy requiring Respondent to write a n SCM referral on

a student for an incident she did not witness or have knowledge of at the

time. As such, the School Board failed to prove that Respondent engaged in

conduct which constitutes misconduct in office or a violation of School Board

Policy 3210 or 3210.01.

31. As detailed above, Mr. Hocherman Ñ observed J.H. in the hallway

without Respondent , Ò as alleged in paragraph 18 of the Not ice of Specific

Charges. However, Respondent came upon the scene within a few minutes

and joined in the pursuit of J.H. when he took off running towards the

stairwell and up to the third floor. The evidence did not establish that J.H., a

known runner, was ever in any danger , nor did he suffer any injuries as a

result of the incident . Under the particular facts o f this case, RespondentÔs

conduct was not inappropriate. In sum, the alleged conduct of Mr.

Hocherman observing Ñ J.H. in the hallway without Respond ent , Ò as alleged

in paragraph 18 of the Notice of Specific Charges , does not constitute

misconduct in office or a violation of School Board Policy 3210 or 3210.01 . 5

R ECOMMENDATION

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

R ECO MMENDED that Petitioner, Miami - Dade County School Board, enter a

final order rescinding the suspension of Respondent, Linda A. Moreau, with

full back pay.

5 In its P roposed R ecommended O rder, the School Board argues that Respondent violated

School Board Policy 3213 by failing to Ñ immediately report a harmful situation to the

administration. Ò However, the alleged conduct in paragraph 18 of th e Notice of Specific

Charges is not based on a failure to report; rather, the alleged conduct is solely that J.H. was

observed unsupervised in the hallway. Accordingly, any contention by the School Board that

Respondent engaged in misconduct in office or v iolated School Board policies based on a

failure to report J.H. being observed unsupervised in the hallway , is beyond the scope of the

charge.

Even if the School BoardÔs contention is not beyond the scope of the charge, however, J.H.

was never in any danger or harmed, and , therefore, any failure of Respondent to report the

incident does not constitute a violation of School Board Policy 3213 and does not constitute

misconduct in office .

D ONE A ND E NTERED this 21st day of April , 2021, in Tallahassee, Leon

County, Florida.

S

D ARREN A. S CHWARTZ

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 21 st day of April , 2021 .

C OPIES F URNISHED :

Christopher J. L a Piano, Esquire Mark Herdman, Esquire

Michele Lara Jones, Esquire Herdman & Sakellarides, P.A.

Miami - Dade County School Board Suite 110

1450 Northeast 2nd Avenue , Suite 430 29605 U.S. Highway 19 No rth

Miami, Florida 33132 Clearwater, Florida 33761 - 1526

Alberto M. Carvalho, Superintendent Matthew Mears, General Counsel

Miami - Dade County Public Schools D epartment of E ducation

1450 Northeast Second Avenue, Suite 912 Turlington Building, Suite 1244

Miami, Flor ida 33132 325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Richard Corcoran , Commissioner

of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

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 agency that will issue the Final Order in this

case.