21-000066TTS Miami-Dade County School Board vs. Chermona L. Francois-Smith Status: Closed Recommended Order on Thursday, July 29, 2021.

Summary: School Board proved by a preponderance of the evidence that just cause exists to suspend without pay for 15 days Respondent's employment as a teacher for misconduct in office and violation of School Board policies.

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. 21 - 0066TTS

C HERMONA L. F RANCOIS - S MITH ,

Respondent .

/

R EC OMMENDED O RDER

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

the Division of Administrative Hearings (ÑDOAHÒ) for final hearing on

May 7, 2021, by Zoom conference.

A PPEARANCES

For Petitioner: Christopher J. La Piano, Esquire

Miami - Dade County School Board

1450 Northeast 2nd Avenue, Suite 430

Miami, Florida 33132

For Respondent: Mark Herdman, Esquire

Herdm an & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761 - 1526

S TATEMENT OF T HE I SSUE

Whether just cause exists for Petitioner to suspend RespondentÔs

employme nt as a teacher, without pay, for 15 days.

P RELIMINARY S TATEMENT

By letter dated December 10, 2020, Petitioner, Miami - Dade County School

Board (ÑSchool BoardÒ), notified Respondent, Chermona L. Francois - Smith

(ÑRespondentÒ), of the School BoardÔs action t o suspend her employment as a

teacher, without pay, for 15 days. Respondent timely requested an

administrative hearing. Subsequently, the School Board referred the matter

to DOAH to assign an Administrative Law Judge to conduct the final

hearing.

The Not ice of Specific Charges contains certain factual allegations, and,

based on those factual allegations, the School Board charged Respondent

with Misconduct in Office. The final hearing was initially set for March 22,

2021. On March 10, 2021, the parties fil ed a joint motion for continuance . On

March 10, 2021, the undersigned entered an Order granting the motion and

resetting the final hearing for May 7, 2021.

The final hearing was conducted on May 7, 2021, with all parties present.

At the hearing, the Scho ol Board presented the testimony of Marvell Buck,

Mark Fabel, and Dr. Monefe M. Young. The School BoardÔs Exhibits 1

through 7 were received into evidence. Respondent testified on her own

behalf and presented the additional testimony of Cynthia Serure. Res pondent

did not offer any exhibits into evidence.

The one - volume final hearing Transcript was filed at DOAH on June 28,

2021. On July 8, 2021, the School Board filed an unopposed motion to extend

the deadline for the parties to file proposed recommended orders. On July 9,

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 May 5, 2021, the parties filed their Joint Pre - Hea ring Stipulation, in

which they stipulated to certain facts. These facts have been incorporated

into this Recommended Order as indicated below. Unless otherwise indicated,

all rule and statutory violations are to the versions in effect at the time of the

a lleged 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. Respondent has been a teacher for over 17 years. Most of her career has

involved teaching special education ÑESEÒ and/or ÑEBDÒ students.

Respondent was first hired by the School Board in 2002 and worked at

different schools over the years, including in Broward County, Florida. In

2015, Respondent return ed to the School Board.

3. Since the 2019 school year, and at all times relevant to this case,

Respondent has been employed at Linda Lentin K - 8 Center , a public school in

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

4 . At all times re levant 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.

Disciplinary History

5 . Respon dent has not been the subject of any prior discipline from the

School Board.

The September 24, 2019, Fight Involving A.J. and A.B.

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

suspension of Respondent occurred on September 24, 2019, during the 2019 -

20 20 school year, at which time Respondent was an EBD teacher at

Linda Lentin K - 8 Center. At that time, Ms. Buck, a paraprofessional, was

assigned to RespondentÔs classroom.

7. EBD students have emotional and/or behavioral disabilities an d often

exhibit behavioral problems . Respondent Ôs EBD class was held in a

self - contained classroom and consisted of a total of nine male students

ranging from grades six to eight . A.J. and A.B. were two of the students in

RespondentÔs class.

8. On Septe mber 24, 2019, while Respondent was conducting a lesson , A.J.

and A.B. began arguing . The argument quickly developed into a physical

altercation between A.J. and A.B.

9. A 43 - second video captured relevant portions of the incident. A t the

start of the vid eo, A.J and A.B. can be seen squaring off against each other.

As they squar ed off, Respondent walk ed by A.J. and pushed him toward A.B.

10. At hearing, Ms. Buck persuasively and credibly testified that as

Respondent pushed A.J. toward A.B., she heard Respo ndent state words to

the effect of ÑmoveÒ or Ñget out of my way . Ò

11. After pushing A.J. toward A.B., Respondent retreated to her desk area

and distanced herself from the incident .

12. In the meantime, with Respondent out of the way, A.J.Ôs and A.B.Ôs

s quaring off against each other escalated to a full - blown physical altercation

in the classroo m last ing at least 30 seconds .

13. After the fight commenced, Ms. Buck pushed the security call button

and ultimately intervened by pulling the boys apart with t he help of another

student. Respondent did not take any action to try and stop the altercation

between A.J. and A.B., or call security herself.

14. Mr. Fabel is an ESE staffing specialist with the School Board who

trains district employees in Safe Crisi s Management (ÑSCMÒ). All EBD

teachers and paraprofessionals employed by the School Board are required to

attend SCM training to learn how to deal with the behaviors of EBD

students. EBD training lasts three days and instructs employees on how to

manage st udent behaviors via non - physical and verbal interventions and, if

necessary, physically. Both Respondent and Ms. Buck attended the required

SCM training prior to the 2019 - 2020 school year.

15. Without objection, Mr. Fabel was qualified , at hearing , as an expert in

the School BoardÔs SCM training. Mr. Fabel watched the video and

persuasively and credibly testified at hearing regarding interventions

Respondent could have used to rectify the situation when A.J. and A.B. were

squaring off. For example, Respond ent could have given the students clear

and firm verbal commands to move away from each other and return to their

seats. Respondent also could have utilized a Ñguided assistÒ -- taking the

students by the arm and moving them to another part of the classroom.

Respondent also could have positioned herself in between A.J. and A.B. so

that the studentsÔ avenue of approach toward each other , and eye contact

with each other , w as blocked.

16. Mr. Fabel testified that when students are just squaring off , like A.J.

and A.B. were at the beginning of the video, ÑtheyÔre looking for somebody to

intervene and keep them from getting into it.Ò However, Mr. Fabel

persuasively and credibly testified that when Respondent walked away from

the situation and went to her desk , it was a Ñgreen light for them to then go

at one another.Ò

17. RespondentÔs conduct on September 24, 2019, was inappropriate,

reflected poorly upon herself and the School Board, and reduced RespondentÔs

ability to effectively perform her duties. Respo ndent could certainly have

responded to A.J. 's and A.B. 's squaring off through means other than pushing

A.J. toward A.B. and retreating to her desk.

18. The persuasive and credible evidence adduced at hearing

demonstrates that Respondent is guilty of misco nduct in office in violation of

Florida Administrative Code Rules 6A - 5.056(2)(b) through (e) and

6A - 10.081(2)(a)1. By pushing A.J. toward A.B. and retreating to her desk on

September 24, 2019 , Respondent violated rules 6A - 5.056(2)(b) through (e)

and 6A - 10 .081(2)(a)1. , by disrupting the students ' learning environment, thus

reducing Respondent Ô s ability to effectively perform her duties; failing to

make reasonable effort to protect the student s from conditions harmful to

learning and/or to the students ' ment al and/or physical heath and/or safety.

Respondent also violated School Board Policy 3210, Standards of Ethical

Conduct, section A.3., which mirror s rule 6A - 10.081(2)(a)1. Respondent also

violated School Board Policy 3213, Student Supervision and Welfare, which

requires that teachers protect the physical and emotional well - being of

students by maintaining the highest professional, moral, and ethical

standards in dealing with the supervision, control and protection of students

on or off school property , and reporting immediately to a building

administrator any safety hazard or other potentially harmful condition or

situation she detects .

C ONCLUSIONS OF L AW

1 9 . DOAH has jurisdiction of the subject matter and the parties to this

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

(2019).

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

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

suspend instructional employees pursuant to sections 1012.2 2(1)(f),

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

21 . The School Board has the burden 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 caus e Ò for

dismissal. §§ 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 mor e 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 violati on . 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 . Sections 1012.33(1)(a) and (6)(a) provide, in pertinent part, that

instructional staff may be suspended during the term of t heir employment

contract only for Ñ just cause. Ò §§ 1012.33(1)(a) and (6)(a), Fla. 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 author ity to adopt rules pursuant to sections 120.536(1)

and 120.54 to implement provisions 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 rule 6A - 5.056(2), whi ch

provides:

(2) Ñ Misconduct in Office Ò 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

Conduc t 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 Ô s learning

environment; or

(e) Behavior that reduces the teacher Ô s ability or hi s

or her colleagues Ô ability to effectively perform

duties.

27 . Rule 6A - 10.080, titled Ñ Code of Ethics of the Education Profession in

Florida, Ò was repealed, effective March 23, 2016, and reenacted in

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

(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 d emocratic 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 Ô s primary professional concern will

always be for the student and for the develop ment

of the student Ô s potential. The educator will

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 Ô 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 8. While rule 6A - 5.056(2)(a) still provides that violation of the Code of

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

frequently noted that the precepts set forth in the Ñ Code of Ethics Ò are Ñ so

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

defining normative behavior. Ò Miami - Dade Cty. Sch. Bd. v. Zumeta ,

Case No. 20 - 5179TTS (Fla. DOAH June 16 , 2021; MDCSB July 21, 2021);

Miami - Dade Cty. Sch. Bd. v. Quarles , Case No. 20 - 5137TTS ( Fla. DOAH

June 23, 2021; MDCSB July 21, 2021); Broward Cty. Sch. Bd. v. Miller , Case

No. 20 - 1335TTS (Fla. DOAH Nov . 10, 2 020; BCSB Feb . 9, 2021); Broward

Cty. Sch. Bd. v. Beckham , Case No. 19 - 4589TTS (Fla. DOAH Ma r. 9, 2020;

BCSB Apr. 30 , 2020) . School Board Policy 3210.01, titled Ñ Code of Ethics, Ò

mirrors the precepts set forth in rule 6A - 10.081(1)(a) through (c) .

2 9 . Rule 6A - 5.056(2)(b) incorporates by reference rule 6A - 10.081, which is

titled Ñ Principles of Professional Conduct for the Education Profession in

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

(a) Obligation to the student requires that the

indivi dual:

1 . Shall make reasonable effort to protect the

student from conditions harmful to learning and/or

to the student Ô s mental and/or physical health

and/or safety.

30 . School Board Policy 3210, Standards of Ethical Conduct, provides, 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 staff member shall:

* * *

3 . m ake a reasonable effort to protect the student

from conditions harmful to learning and/or to the

student Ô s mental and/or physical health and/or

safety;

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

in pertinent 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 stu dents on or off school property .

A. Staff members shall report immediately to a

building administrator any accident, safety hazard,

or other potentially harmful condition or situation

s/he detects.

32 . Turning to the present case, the School Board proved by a

preponderance of the evidence that Respondent is guilty of misconduct in

office in violation of rule s 6A - 5.056(2) (b) through (e) and 6A - 10.081(2)(a)1.

As detailed above, by pushing A.J. toward A.B. and retreating to her desk,

Respondent failed to make reasonable effort to protect her student s from

conditions harmful to learning and engaged in conduct which disrupted the

student Ô s learning environment and reduced Respondent Ô s ability to

effectively perform her duties. Respondent also violated Sch ool Board

Policy 3210, Standards of Ethical Conduct, section A.3., and School Board

Policy 3213, Student Supervision and Welfare.

R ECOMMENDATION

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

R ECOMMENDED that the Miami - Dade County School Board enter a final order

upholding the suspension of RespondentÔs employment as a teacher, without

pay, for 15 days.

D ONE A ND E NTERED this 29 th day of July , 2021 , in Tallahassee, Leon

County, Florida.

S

D ARREN A. S CHWARTZ

Administrative Law Jud ge

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 29 th day of July , 2021 .

C OPIES F URNISHED :

Christopher J. La Piano, Esquire Mark Herdman, Esquire

Miami - Dade C ounty School Board Herdman & Sakellarides, P.A.

1450 Northeast 2nd Avenue , Suite 430 29605 U.S. Highway 19 North , Suite 110

Miami, Florida 33132 Clearwater, Florida 33761 - 1526

Alberto M. Carvalho, Superintendent Richard Corcoran

Miami - Dade County Public Schools Commissioner of Ed ucation

1450 Northeast Second Avenue, Suite 912 Department of Education

Miami, Florida 33132 Turlington Building, Suite 1514

325 West Gaines Street

Matthew Mears, General Counsel Tallahassee, Florida 32399 - 0400

Department of Education

Turlington Building, Suite 1244

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 Rec ommended Order. Any exceptions to this Recommended

Order should be filed with the agency that will issue the Final Order in this

case.