STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3691

)

JIMMIE E. HARRIS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on October 11, 1989, and on December 21, 1989, in Miami, Florida.

APPEARANCES

For Petitioner: Frank R. Harder, Esquire

Suite 100 - Twin Oaks Building 2780 Galloway Road

Miami, Florida 33165

For Respondent: Jimmie D. Harris-pro se

13336 S.W. 112 Place

Miami, Florida 33176 STATEMENT OF THE ISSUES

Whether Respondent's continuing contract should be terminated by Petitioner on the grounds of misconduct in office and immorality and, if not, the relief, if any, to which Respondent is entitled.

PRELIMINARY STATEMENT

Respondent was employed by Petitioner as a continuing contract teacher and was assigned to Miami Senior High School as a math teacher for the school year 1988-89. In March 1989, Petitioner reassigned Respondent after receiving a complaint relating to Respondent's behavior with a 14 year old male student.

Following an investigation, Petitioner voted on June 28, 1989, to suspend Respondent's employment without pay and to terminate his employment, subject to his rights to an administrative hearing. Petitioner's actions were premised on Respondent's alleged misconduct in office and on his alleged immoral conduct.

Respondent filed a timely request for an administrative hearing and this proceeding followed.

The hearing was held on October 11, 1989, and on December 21, 1989. The hearing was reconvened on December 21 to allow the parties the opportunity to secure the attendance of witnesses who had been subpoenaed for, but who had failed to appear for, the hearing on October 11.

During the two days of hearing, Petitioner presented the testimony of J.R., Joyce Annuniziata, Diego Garcia, Charles Bethal, Consuelo Dominguez, Patrick Gray, and D.F. J.R. and D.F. are former students of the Respondent and will be referred to by their initials to protect their privacy. Dr. Annuniziata is the supervisor of Petitioner's office of professional standards. Mr. Garcia is the principal of Miami Senior High School. Mr. Bethal and Ms. Dominguez are assistant principals of Miami Senior High School. Dr. Gray is assistant superintendent for Petitioner in its office of professional standards. Dr. Gray was qualified and accepted as an expert in the fields of professional ethics, performance standards and performance appraisals. Respondent testified on his own behalf and called as additional witnesses the mother of D.F., Ken White, and David Snyder. Ms. Lanier is the mother of D.F. Mr. White is a teacher and coach at Miami Senior High School. Mr. Snyder is Petitioner's coordinating principal for personnel in the south central In addition to these witnesses, Respondent recalled J.R., Diego] Garcia, and Joyce Annuniziata. The parties stipulated as to the testimony of the mother of J.R. The parties introduced one joint exhibit, which was accepted into evidence. Petitioner introduced one exhibit, which was accepted into evidence. Respondent offered four exhibits, three of which were accepted into evidence. The fourth exhibit offered by Respondent was rejected because Respondent failed to establish that exhibit's relevance.

The notice of charges filed in this proceeding described three incidents involving Respondent and ;ale students. No competent evidence was presented as to two of the three incidents. The only incident at issue is the incident involving Respondent and J.R.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 22I-6.031, Florida Administrative Code. Rulings on the parties' proposed findings may be found in the appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material to this proceeding, Petitioner was a duly constituted school board.

   
   

2. At all times material to this proceeding, Respondent was employed by Petitioner as a continuing contract teacher. Respondent was assigned as a math teacher to Miami Senior High School, one of the schools in the school District of Dade County, Florida.

   
   

3. On March 20, 1989, Respondent and J.R., a 14 year old male who was one of Respondent's math students, entered into a discussion in Respondent's classroom regarding two musical keyboards that Respondent was trying to sell.

   J.R. Was interested in purchasing a musical keyboard and had been told by Respondent that he had at his home two musical keyboards that he wanted to sell.

   J.R. wanted to inspect the two keyboards to determine whether he might be interested in purchasing one of them, but he wanted to wait until the weekend to

   look at the keyboards so that his father could accompany him when he went to Respondent's house. Respondent had other commitments and advised the student on March 21, 1989, that he would have to look at the keyboards that afternoon.

   
   

4. On March 21, 1989, Respondent drove J.R. to Respondent's home for the stated purpose of allowing J.R. to examine the two keyboards. No one else was present at Respondent's home. Respondent showed J.R. the keyboards and quoted

   J.R. a price for each. When J.R. inquired as to terms of payment, Respondent asked J.R. if he wanted to watch a video with him and stated that he wanted to watch a video so that he could think.

   
   

5. Respondent then led J.R. into a darkened bedroom that had, in addition to video equipment, only a chair and a bed. Respondent lay down on the bed and

   J.R. sat in the chair. Respondent then asked J.R. if he talked a lot or whether he could keep a secret. After J.R. said he did not talk a lot, Respondent showed J.R. a pornographic movie that depicted nudity and sexual intercourse. While watching the movie, Respondent told J.R. that he had seen

   1. with a "hard on" during his math class. Respondent then asked J.R. if he had ever measured the size of his penis. When J.R. replied in the negative, Respondent told him that he should. Respondent then asked J.R. whether he "jerked off" often. J.R. replied in the negative and left the room because he was uncomfortable being with Respondent under those circumstances. During the course of the foregoing conversation, Respondent was lying on a bed in this darkened bedroom watching the pornographic movie with this 14 year old student. Respondent then drove J.R. to J.R.'s home after he asked to leave.

      
      

6. J.R. immediately reported the incident to his parents when he returned to his home. J.R.'s parents notified the police that evening and reported the incident to the appropriate school officials the next day.

   
   

7. This incident caused notoriety which has impaired Respondent's effectiveness as a teacher.

   
   

8. Respondent testified that nothing inappropriate occurred when J.R. inspected the keyboards at his home on March 21, 1989. Respondent testified that he and J.R. drove to his house after school so that J.R. could inspect the keyboards, that while at the house he and J.R. drank a soft drink, looked at the keyboards, and discussed watching a video of a popular movie. Respondent contended that he drove J.R. to J.R.'s home and that nothing else occurred. Respondent denied that he showed J.R. a pornographic video or that he engaged in sexually explicit conversations with J.R. Respondent contended that J.R. fabricated part of his testimony and offered two motives for J.R. to lie. First, Respondent contended that J.R. may have seen this situation as a means to get one of the keyboards from Respondent without having to pay for it. Respondent did not explain how J.R. expected to accomplish this. Second, Respondent contended that J.R. may have fabricated the story to avoid getting into trouble with his parents because they did not know J.R.'s whereabouts

   during the time he was at Respondent's house on March 21, 1989. These proffered motives as to why J.R. would lie lack credibility and are rejected. J.R. is a good student who had no motive to fabricate his testimony as to the events that occurred at Respondent's house. Respondent's version of the events of March 21, 1989, insofar as that version conflicts with J.R.'s testimony, lacks credibility and is rejected.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

   
   

10. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

11. Section 231.36(4)(c), Florida Statute's, provides that any member of the instructional staff who is under continuing contract may be suspended or dismissed at any time during the school year on the basis of immorality or on the basis of misconduct in office.

    
    

12. Rule 6B-4.009, Florida Administrative Code, provides, in pertinent part, as follows:

    
    

    The basis for charges upon which dismissal action against instructional personnel may be pursued are set forth in Section 231.36, Florida Statutes.

    The basis for each of such charge is hereby defined:

    * * *

    1. Immorality is defined as conduct that is inconsistent with the standards of public conscience and goods morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.

       * * *

    2. Misconduct in office is defined

       as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.001, F.A.C. and the Principles of Professional Conduct for the

       Education Profession in Florida as adopted in Rule 6B-1.006, F.A.C., which is so serious as to impair the individual's effectiveness in the school system.

13. The Principles of Professional Conduct for the Education Profession in Florida, found in Rule 6B-1.006, Florida Administrative Code, provides, in pertinent part, as follows:

    
    

    (1) The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida and shall apply to any individual holding a valid Florida teacher' s certificate.

    * * *

    1. Obligation to the student requires that the individual:

       1. Shall make reasonable effort to protect the student from conditions harmful to learning or to health or safety.

    * * *

    (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

    * * *

    (h) Shall not exploit a professional relationship with a student for personal gain or advantage.

    
    

14. Petitioner has established by cleared convincing evidence that Respondent engaged in conduct which meets the definition of immorality and the definition of misconduct in office.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that the School Board of Dade County, Florida, enter a final

order which finds Jimmie D. Harris guilty of immorality and of misconduct in office, which affirms the suspension of Jimmie D. Harris without pay, and which terminates the continuing contract of Jimmie D. Harris.

DONE AND ORDERED this 23rd day of March, 1990, in Tallahassee, Leon County, Florida.

COPIES FURNISHED:

Jimmie D. Harris 13336 S.W. 112 Place

Miami, Florida 33176

Frank R. Harder, Esquire

Suite 100 - Twin Oaks Building 2780 Galloway Road

Miami, Florida 33165

Madelyn P. Schere, Esquire School Board Administration

Building

1450 Northeast Second Avenue Miami, Florida 33132

Dr. Joseph A. Fernandez Superintendent of Schools 1444 Biscayne Boulevard

Suite 215

Miami, Florida 33132

APPENDIX TO THE RECOMMENDED ORDER IN CASE 89-3691

The following rulings are made on the proposed findings of fact submitted by Petitioner:

1. The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 1 of the Recommended Order.

2. The proposed findings of fact in paragraph 2 are adopted in material part by paragraphs 3-5 of the Recommended Order.

3. The proposed findings of fact in paragraph 4-6 are rejected as being subordinate to the findings made and to the conclusions reached. There is no paragraph numbered in Petitioner's post-hearing submittal.

The following rulings are made on the proposed findings of fact submitted by Respondent:

1. The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 3 of the Recommended Order. The proposed findings of fact in the second sentence of paragraph 1 are rejected as being unnecessary to the conclusions reached.

2. The proposed findings of fact in the first sentence of paragraph 2 are rejected as being subordinate to the findings made. The proposed findings of fact in the second sentence of paragraph 1 are rejected as being unnecessary to the conclusions reached.

3. The proposed findings of fact in paragraph 3 are rejected as being unnecessary to the conclusions reached.

4. The proposed findings of fact in the first sentence of paragraph 4 are rejected as being subordinate to the findings made. The remaining proposed findings of fact in paragraph 4 are rejected as being unnecessary to the conclusions reached.

5. The proposed findings of fact in paragraph 5 are rejected as being unnecessary to the conclusions reached.

6. The proposed findings of fact in paragraph 6 are rejected as being unclear and as being unnecessary to the conclusions reached.

7. The proposed findings of fact in paragraphs 7-9 are rejected as being unnecessary to the conclusions reached.

8. The proposed findings of fact in paragraph 10 are rejected as being conclusion of law.

Docket for Case No: 89-003691

Orders for Case No: 89-003691