22-000160TTS Miami-Dade County School Board vs. Warnell Green Status: Closed Recommended Order on Friday, September 2, 2022.

Summary: Petitioner established that just cause existed to suspend Respondent's employment for misconduct in office. Recommend 10 day 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. 22 - 0160TTS

W ARNELL G REEN ,

Respondent .

/

R ECOMMENDED O RDE R

This case came before Administrative Law Judge Todd P. Resavage of the

Division of Administrative Hearings (DOAH) for final hearing on May 13,

2022, by Zoom video teleconference.

A PPEARANCES

For Petitioner: Christopher J. La Piano, Esquire

Miami - Dade County School Board

1450 Northeast 2nd Avenue, Suite 400

Miami, Florida 33132

For Respondent: Branden M. Vicari, Esquire

Herdman & Vicari, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

S TATEMENT OF T HE I SSUE

Whether just cause exists for Petitioner to suspend RespondentÔs

employmen t as a teacher, without pay, for 20 days.

P RELIMINARY S TATEMENT

At a meeting on January 12, 2022, Petitioner, Miami - Dade County School

Board, voted to suspend Respondent, Warnell Green, from her position as a

teacher at Norma Butler Bossard Elementary Sc hool (NBB) for 20 workdays

without pay. On January 13, 2022, Maria G. Zabala, PetitionerÔs

administrative director, issued Respondent a written notification of the

decision, and informed Respondent she could contest the suspension by

requesting a hearing i n writing within 15 workdays of receipt of the notice.

Respondent timely requested an administrative hearing to challenge

PetitionerÔs proposed action, and the matter was referred to DOAH to conduct

a hearing pursuant to section s 120.569 and 120.57(1), Flo rida Statutes.

A Notice of Hearing by Zoom Conference was entered , scheduling a final

hearing on April 7, 2022. On March 23, 2022, the partiesÔ Joint Motion to

Continue and Reschedule Final Hearing was filed. The parties requested a

continuance to allow for additional discovery. Finding good cause for the

requested continuance, on March 25, 2022, the continuance was granted , and

the matter was rescheduled for May 13, 2022.

The hearing proceeded as scheduled. At the hearing, Petitioner presented

the tes timony of minors , D.A. , J.G. , S.S. , L.M. , as well as the testimony of

D.A.Ôs mother; NBB p rincipal , Concepcion Santana ; and Helen Pina, director

in the Office of Professional Standards. PetitionerÔs Exhibits 1 through 14

and 16 through 18 were admitted int o evidence. Respondent testified on her

own behalf at the hearing. RespondentÔs Exhibit 1 was admitted into

evidence.

A one - volume Transcript of the final hearing was filed on July 18, 2022.

On July 20, 2022, Respondent filed a motion for extension of ti me (to

August 17, 2022) to file proposed recommended orders, which was unopposed.

Finding good cause for the requested extension of time, the motion was

granted on July 21, 2022. The parties timely filed proposed recommended

orders , which have been duly co nsidered in the preparation of this

Recommended Order. All references to Florida Statutes are to the version

in effect at the time of the incidents giving rise to the proposed suspension

of RespondentÔs employment as a teacher.

F INDINGS OF F ACT

1. Petiti oner is the constitutional entity authorized to operate, control,

and supervise the public schools in Miami - Dade County, Florida.

2. Respondent has been a teacher for approximately 32 years and has

been employed by Petitioner for approximately 22 years.

3. At all times relevant, Respondent was employed with Petitioner as a

physical education (PE) teacher at NBB and her employment was governed

by the collective bargaining agreement (CBA) between Petitioner and the

United Teachers of Dade, PetitionerÔs poli cies, and Florida law.

4. During the 2020 - 2021 school year, two fifth - grade students, J.G. (male)

and A.G. (female), had been instructed by NBB administrative staff to avoid

contact with each other. This directive resulted from a complaint previously

file d by A.G. that J.G. was inappropriately communicating with her

electronically. J.G., as a result of the complaint and subsequent investigation,

received discipline. Specifically, he was required to serve a five - day in - school

suspension (ISS).

5. As J.G. a nd A.G. were enrolled in RespondentÔs fifth - grade PE class,

Ms. Santana had notified Respondent of the no contact directive between J.G.

and A.G.

6. On February 18, 2021, the PE class was engaged in a game of softball.

J.G. was not participating due to a prior injury and was sitting by a tree in

the shade. A.G. was also not participating in the game and was in the same

general location as J.G. One of J.G.Ôs friend s , D.A. (male), was also enrolled in

the same PE class. For all that appears from the evidenti ary record, D.A. had

been granted permission by Respondent to sit out of the softball game and

was with J.G. in the same location.

7. Towards the end of the class period, the balance of the class was moving

towards the tree to retrieve their water bottles . At this time, Respondent

observed J.G. and A.G. interacting with each other, in contravention of the no

contact directive. Respondent Ôs reaction to the contact and the subsequent

conversation between Respondent, J.G. , and D.A. is at the heart of the

inst ant dispute.

8. J.G., who is currently 13, conceded that due to the passage of time, he

did not have a perfect memory of the incident; however, he recalls some parts.

J.G. contends that he accidentally hit A.G. with his water bottle as he was

passing by h er. J.G. recalls that he apologized to A.G.; however, then

Respondent appeared and called him an Ñidiot,Ò Ñstupid,Ò and a Ñdumbass.Ò

He testified that Respondent also called D.A. a ÑfollowerÒ and, as an example,

said that if J.G. jumped off a building , so would he , or that if J.G. stepped in

Ñdog poop,Ò so would he.

9. Prior to this incident, J.G. testified that he had a good relationship with

Respondent and liked her. J.G. credibly testified that he Ñlooked at herÒ as Ña

different mother.Ò As a result of the incident, however, he felt frustrated and

confused.

10. D.A., who is currently 12, testified that J.G. and A.G. were close to

each other and they Ñstarted telling each other stuff.Ò He believes they were

arguing. D.A. then testified that Respondent Ñst arted coming at us and

saying the words that she said to us.Ò Specifically, he testified that Ñ[s]he

called us a dumbass, she said we were going to get beat up in middle school,

she called us stupid. She also said we were going to go to prison, and she sai d

I was a follower.Ò D.A. credibly testified that the comments hurt his feelings

and that he felt disrespected and embarrassed. He further testified that ÑI

felt like I wanted to cry.Ò He did not want to return to her class.

11. S.S., who is currently 13, was a fellow student in the PE class. S.S.

testified that the incident began because J.G. was not supposed to be around

A.G. Ð which was well known and Ñlike, a class rule.Ò S.S. conceded that she

just recalled Respondent use the term ÑdumbassÒ; however, sh e does not

know if this comment was directed to D.A. or J.G. She further recalled

Respondent telling J.G. and D.A. that Ñyou guys keep doing whatever youÔre

doing, you guys are go i ng to end up in jail.Ò During the incident, S.S. testified

that she felt sca red and nervous.

12. RespondentÔs version of events is in conflict with the above testimony.

Her testimony, in pertinent part, is as follows:

They were all sitting under a tree. [A.G.] was under

the tree, I want to say she had a girl problem and I

let he r sit out as well. As I look over, [A.G.] was

walking over towards [J.G.] and she kind of

spanked him on his butt. So I was like wait, hold

up. We got all this stuff going on and here you are,

youÔre doing this. And I kind of scolded her.

* * *

Because I was explaining to them that Ñyou all had

just went down to the principalÔs office and wrote

all these statements on these guys and here you

are, I see you with my own two eyes, youÔre making

the inappropriate moves on him.Ò And I saw her,

she eit her patted him on his butt, you know, on his

rear - end. And I said ÑThatÔs not appropriate either.

I mean, you just left the office writing statements

and here you are.Ò

And I explained to [J.G.], you know, ÑHey, donÔt let

those girls play with you like t hat, because when

you do that to them, you know youÔre going to be in

trouble, because theyÔre going to believe them and

youÔre going to be in a whole lot of trouble.Ò

Because [J.G.] was the kind of kid that I could talk

to. He said, ÑOkay, Coach, I unders tand.Ò Because

he knew I was helping him, he knew anything I

said to him was for the better of him.

13. Respondent denied that she called these students a ÑdumbassÒ or

Ñidiot,Ò and denied the use of any profanity.

14. With respect to D.A., Respondent desc ribed him as a Ñbig babyÒ in

the sense that at approximately 11 years old , he was tall for his age

(approximately 5Ô11Ò). She conceded that Ñ[s]he had conversations with himÒ

and would advise D.A. to Ñstop being a follower, you donÔt wanna follow J.Ò

She o pined that D.A. would do things that he should not just to please his

friend J.G.

15. Petitioner further denies that she ever advised the students that they

would go to jail. Her testimony on this point can be fairly summarized as

providing that, on this occasion, she was attempting to explain to the

students that when they matriculate to middle school, the consequences of

inappropriate behavior, if not corrected, are greater and can progress from

ISS, to placement in a resource center, and ultimately to t he Juvenile

Assessment Center.

16. Following this incident, J.G. and D.A. discussed the incident, and J.G.

credibly testified that he ÑdidnÔt want to say anything because IÔm not like

that.Ò D.A., however, did want to report the incident , and, therefore, J.G.

agreed to do so. It appears that the boys reported the incident to a homeroom

teacher, who then referred the students to Ms. Santana.

17. Ms. Santana testified that the boys came to her office and reported

that Respondent had cursed at them, called t hem stupid, dumbasses, and

that they would end up in jail one day. Because the school day was ending at

that time, Ms. Santana only obtained their verbal statements. She also

contacted the boysÔ parents to advise them of the complaint.

18. In response, D. A.Ôs mother requested that D.A. be removed from the

PE class. Thereafter, for approximately two weeks, in lieu of attending

RespondentÔs PE class, D.A. presented to Ms. SantanaÔs office or the library

media center to access his educational content. He then returned to

RespondentÔs PE class. J.G. was never removed from RespondentÔs PE class.

19. The following day, Ms. Santana requested the boys to return to her

office. Once there, the boys were asked to, and did, provide separate written

statements setting forth their recollection of the events. Ms. Santana further

obtained written statements from those students in the PE class who

purportedly had knowledge of the incident.

20. After obtaining statements, Ms. Santana forwarded information to

Petitioner Ôs in cident review team , who then forwarded the matter to

Petitioner Ôs civilian investigative unit. Ultimately, Petitioner proposed

discipline of 20 workdays without pay. Ms. Pina testified that because

Respondent has previously received multiple directives and reprimands, and

continues to have issues, the next step in progressive discipline is a

suspension. 1

21. On February 23, 2022, Ms. Santana hand - delivered Respondent a

written notification that she had been named as the subject in a complaint

arising from the above - described incident. The complainants were identified

as ÑJUVENILE CONFIDENTIAL.Ò This notice provided, inter alia , that

Respondent was Ñnot to discuss this matter with any witnesses, parents,

staff, students, or the complaining party to avoid int erference with the

investigation.Ò Respondent refused to sign the document acknowledging

receipt.

22. Petitioner presented the testimony of L.M., who , at the time of

hearing, was ten years old and in fourth grade. L.M. was in one of

RespondentÔs PE classe s. According to L.M., Respondent, at some time,

advised the class that Ms. Santana had Respondent suspended for something

she did not do and that Ñ[if] you say the truth, you will always win.Ò Finally,

he testified that Respondent told that class that she went to court to keep her

record clean. When questioned about this testimony, Respondent testified

that while she did have a conversation about Ñstanding on your truths,Ò she

never spoke to the class about the subject incident.

1 The undersigned has been unable to locate, from the evidentiary record, any document or

record addressing the progressive discipline policy.

23. S.S. testified that, ap proximately one week after the incident,

Respondent told her, but cannot recall who else (if anyone), that Ñshe never,

like, tried to insult them or anything, that she was just trying to talk to them

serious so they could, like, you know, mature up. And th at was basically it.Ò

Ultimate F actual F indings :

24. The persuasive and credible evidence adduced at hearing establishes

that Respondent used inappropriate, abusive , or profane language during the

interaction on February 18, 2021, with J.G., D.A., and A.G . Despite their

minority, the undersigned finds J.G. and D.A.Ôs testimony regarding the

language directed towards them by Respondent to be consistent. There was

no evidence presented that J.G. or D.A. had any prior negative interactions

with Respondent. To the contrary, at least from J.G.Ôs perspective, this was a

trusted adult Ð one he considered as a second mother. Their subsequent

action of reporting a teacher with whom they had a positive relationship

lends significant support to their version of events. The undersigned finds

RespondentÔs absolute denial of the stated language to be lacking in

credibility.

25. The persuasive and credible evidence establishes that, as a result of

the inappropriate, abusive , or profane language during the interaction , J.G.

a nd D.A. were exposed to unnecessary embarrassment and disparagement.

The persuasive and credible evidence establishes that the inappropriate,

abusive , or profane langu age used by Respondent during the interaction with

J.G. and D.A. was intentional.

26. P etitioner failed to present sufficient evidence to establish that

Respondent intentionally refused to obey a direct order or that Respondent

made malicious or intentionally false statements about a colleague. The

undersigned finds the testimony of L.M. and S.S. on these points to be

lacking in sufficient specificity or detail to support these allegations , and the

balance of the evidentiary record insufficient.

Prior Disciplinary History :

27. On or about May 17, 2012, Respondent received a written repriman d

for her alleged conduct related to two incidents. The first was making

inappropriate comments to a student regarding his sexuality , and the second

concerned taking a student on an unauthorized field trip. Respondent was

directed, among other things, to r efrain from making inappropriate

statements about students.

28. On April 18, 2013, Respondent received a professional responsibilities

memorandum regarding alleged claims of unprofessionalism in her

performance as an athletic coach. Specifically, the stud ents complained of

demeaning, abusive, and unprofessional conduct. Following a school - site

inquiry, Respondent was directed not to display inappropriate behavior that

insults or degrades others, directly or indirectly. She was further advised to

be aware o f her surrounds when speaking in her capacity as a professional.

29. On April 9, 2014, Respondent received a written reprimand for

allegedly engaging in a verbal confrontation with a coworker in the presence

of students. It was alleged that both were enga ged in inappropriate language

and demeaning each other. Respondent was directed to conduct herself in a

manner that will reflect credit upon herself and Petitioner and to refrain

from engaging in inappropriate activities.

30. Respondent received a written reprimand on December 11, 2014,

stemming from incidents dat ed April 17 and September 2, 2014. With respect

to the April incident, it was alleged that during PE class, Respondent

embarrassed, disclosed personal information, and threatened the students.

The September incident included allegations that Respondent was selling

folders for a fee to students during class. It was further alleged that during

the investigation, Respondent proceeded to confront the students regarding

the allegations despite being war ned to have no further contact with the

potential witnesses. Among other directives, Respondent was directed to

refrain from making disparaging comments to students and colleagues;

refrain from embarrassing students and disclosing their personal

informatio n; to cease and desist from threatening students, staff, and/or

parents; and to communicate appropriately with and relate to administrators,

colleagues, students , and parents in a professional manner.

31. On June 2, 2015, a conference - for - the - record was h eld with

Respondent to address two administrative review investigations that related

to two separate incidents. The first incident, i n April 2015, allegedly involved

Respondent using explicit language to insult the victimsÔ athletic abilities,

respective t eams, family members, coaches , and the athletic director. The

victims alleged Respondent would call them stupid, sorry , and use ethnic

insults to describe them and the school. The second incident, in May 2015,

concerned allegations that Respondent advised students to protest an

upcoming SuperintendentÔs Town Hall Meeting. Respondent was directed to

refrain from making disparaging comments to students and colleagues;

refrain from embarrassing students and disclosing their personal

information; to cease and d esist from threatening students, staff, and/or

parents; and to communicate appropriately with and relate to administrators,

colleagues, students , and parents in a professional manner.

32. On January 21, 2016, Respondent received a written reprimand

regard ing allegations that that she was campaigning and distributing flyers

to faculty members during school hours to vote for Respondent to be a union

steward. Inter alia , she was directed to refrain from engaging in political

activities during school work hour s; cease and desist from making

disparaging and/or threatening comments to colleagues and administration;

adhere to all directives given by the administrative staff; and to communicate

appropriately with and relate to administrators and colleagues in a

pro fessional manner.

33. Respondent received a written reprimand on August 24, 201 6 ,

regarding an allegation that, on March 16, 2016, she walked through the

boysÔ locker room while male students were changing clothes. She received

several directives includin g to cease and desist from all behavior which has

the appearance of impropriety and from going into the boysÔ locker room.

34. Finally, on December 6, 2016, Respondent received a written

reprimand regarding an allegation that, on September 22, 2016, Respo ndent

removed several items, without permission, from another teacherÔs classroom.

Among several directives, she was directed to adhere to all school site policies

and procedures, specifically as they relate to entering a school building after

hours or out side her assigned location.

C ONCLUSIONS OF L AW

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

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

36. A district school board employee against whom a d isciplinary

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

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

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

should Ñspecif y 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 C n ty. , 426 So. 2d 1149,

1151 (Fla. 3d DCA 1983) (Jor genson, J., concurring).

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

section 1012.01(2). Petitioner has the authority to suspend instructional

employees pursuant to sections 1012.22(1)(f), 1012.33(1)(a), and

1012.33(6)(a).

38. 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. Pin ellas C n ty. Sch. Bd. , 678 So. 2d 476, 477

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

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

(Fla. 1st DCA 1993). The preponderance of the evidence standard re quires

proof by Ñthe greater weight of the evidenceÒ or evidence that Ñmore likely

than notÒ tends to prove a certain proposition. Gross v. Lyons , 763 So. 2d 276,

280 n.1 (Fla. 2000).

39. The instructional staff memberÔs guilt or innocence is a question o f

ultimate fact to be decided 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).

40. Section 1012.33(1)(a) and (6)(a), provide s , in pertinent part, that

instructional staff may be terminated during the term of their employment

contract only for Ñjust cause.Ò £ 1012.33(1)(a) and (6)(a), Fla. Stat. ÑJust

causeÒ is defined in section 1012.33(1)(a) to include Ñmisconduct in officeÒ and

Ñgross insub ordination.Ò 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 provisions of law conferring duties upon

it.

Misconduct in Office :

41. Petitioner, in C ount I of PetitionerÔs Notice of Specific Charges,

contends that Respondent committed ÑMisconduct in Office.Ò This term is

defined in Florida Administrative Code Rule 6A - 5.056(2) as one or more of

the following:

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

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 ru les;

(d) Behavior that disrupts the studentÔs learning

environment; or

(e) Behavior that reduces the teacherÔs ability or his

or her colleaguesÔ ability to effectively perform

duties.

42. Petitioner first contends that Respondent committed misconduct in

office by violating rule 6A - 5.056(2)(b), the Principles of Professional Conduct

for the Education Profession in Florida, which are set forth in Florida

Administrative Code Rule 6A - 10.081. Specifically, Petitioner cites the

following provisions of rule 6A - 1 0.081:

(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 citizens hip. 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 educatorÔs primary professional concern will

always be for the student and for the development

of the studen tÔs 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 oneÔs colleagues, of

students, of pa rents, and of other members of the

community, the educator strives to achieve and

sustain the highest degree of ethical conduct.

(2) Florida educators shall comply with the

following disciplinary principles. Violation of any of

these principles shall subj ect the individual to

revocation or suspension of the individual

educatorÔs certificate, 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 con ditions harmful to learning and/or

to the studentÔs mental and/or physical health

and/or safety.

* * *

5. Shall not intentionally expose a student to

unnecessary embarrassment or disparagement.

* * *

7. Shall not harass or discriminate against any

student on the basis of race, color, religion, sex, age,

national or ethnic origin, political beliefs, marital

status, handicapping condition, sexual orientation,

or social and family background and shall make

reasonable effort to assure that e ach student is

protected from harassment or discrimination.

43. Petitioner next argues that Respondent committed misconduct in

office by violating rule 6A - 5.056(2)(b) and (c), in her violation of adopted

school board rules. Specifically, Petitioner cites t o School Board Policies 3210,

3210.01, and 3213.

44. School Board Policy 3210, entitled Standards of Ethical Conduct,

provides, in pertinent part (and as alleged by Petitioner ), as follows:

All employees are representatives of the District

and shall cond uct 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. make a reasonable effort to protect the student

from condit ions harmful to learning and/or to the

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

safety;

* * *

7. not intentionally expose a student to

unnecessary embarrassment or disparagement;

* * *

9. not harass or discriminate against any st udent

on any basis prohibited by law or the School Board

and shall make reasonable efforts to assure that

each student is protected from discrimination and

harassment, including but not limited to, making a

report of discrimination, harassment, or retaliat ion

for reporting discrimination and/or harassment, to

the administrator or designee to whom the

employee is responsible and/or the District's Office

of Civil Rights Compliance (CRC);

* * *

23. not make malicious or intentionally false

statements about a colleague [.]

45. School Board Ôs Policy 3210.01, entitled Code of Ethics, provides , in

pertinent part (and as alleged by Petitioner ) , as follows:

All members of the School Board, administrators,

teachers, and all other employees of the District,

r egardless 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

com mon mission of providing a safe and high -

quality education to all District students.

As stated in the Code of Ethics of the Education

Profession in Florida (State Board of Education

F.A.C. 6A - 10.081):

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 for 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

seek to exercise the best professional judgment and

integr ity;

C. Aware of the importance of maintaining the

respect and confidence of oneÔs colleagues, students,

parents, and other members of the community, the

educator strives to achieve and sustain the highest

degree of ethical conduct.

Further, nonacademic a nd elected officials are

bound to accept these principles since these groups

reflect critical policy direction and support services

for the essential academic purpose.

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,

a nd 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 E mployees, found in F.S. Chapter 112,

Part III, and Policy 3129, which 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 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 pr edicated are as follows:

* * *

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 acti ng and being

accountable for their actions, paying attention to

others, and responding to their needs.

Responsibility emphasizes our positive obligations

to care for each other.

Each employee agrees and pledges:

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

well - being of the students and the 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 and 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;

F. To avoid conflicts of interest or any appearance

of impropriety;

G. To cooperate with others to protect and advance

the District and its students;

H. To be efficient and effective in the performance

of job duties.

46. School Board Policy 3213, entitled Student Supervision and Welfare,

provides (and as alleged by Petitioner ) as follows: Ñ Protecting t he 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 of f school property.Ò

47. Based on the Findings of Fact above, the undersigned concludes that

Respondent is guilty of misconduct in office. Specifically, Petitioner met its

burden of establishing RespondentÔs violation of rule 6A - 10.081(5) and School

Board P olicy 3210(7). The balance of the alleged violations fail either as a

matter of fact or law.

Gross Insubordination :

48. Petitioner, in Count II of PetitionerÔs Notice of Specific Charges,

contends that Respondent committed ÑGross insubordination.Ò This te rm is

defined in r ule 6A - 5.056(4) as Ñthe intentional refusal to obey a direct order,

reasonable in nature, and given by and with proper authority; misfeasance,

or malfeasance as to involve failure in the performance of required duties.Ò

49. Based on the F indings of Fact above, the undersigned concludes that

Petitioner failed to meet its burden of establishing that Respondent

committed gross insubordination, as alleged.

Discipline to B e I mposed :

50. The undersigned finds and concludes that RespondentÔs act ions do

constitute misconduct in office and is, therefore, worthy of discipline. The

undersigned further finds and concludes that Respondent has earned a

suspension, the next step in progressive discipline. It is recommended,

however, that the suspension s hould be for a period of ten days, which the

undersigned is confident will convey a sufficient message to Respondent that

her actions here have serious consequences.

R ECOMMENDATION

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

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

finding that Ñjust causeÒ exists to discipline Respondent by suspending her,

without pay, for ten days.

D ONE A ND E NTERED this 2nd day of September , 2022 , in Tallahassee,

Leon County, Flo rida.

S

T ODD P. R ESAVAGE

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 2nd day of September , 2022 .

C OPIES F URNIS HED :

Christopher J. La Piano, Esquire Branden M. Vicari, Esquire

(eServed) (eServed)

James Richmond, Acting General Counsel Dr. Jose Dotres, Superintendent

(eServed ) (eServed)

Manny Diaz, Jr., Commissioner of

Education

(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 agency that will issue the Final Order in this

case.