STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, ) FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 92-0172

)

HECTOR VALDEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on June 3, 1992, at the School Board Administration Building in Miami, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES:

For Petitioner: Gerald A. Williams, Esquire

Labor Attorney

Haygood & Williams, P.A. The School Board of Dade

County, Florida Suite 562

1450 Northeast Second Avenue Miami, Florida 33132

For Respondent: William Du Fresne, Esquire

Du Fresne and Bradley

2929 Southwest Third Avenue Miami, Florida 33129

STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent should be dismissed from his position of employment as a School Monitor on the basis of conduct which is alleged to constitute conduct unbecoming an employee, willful neglect of duty, and misconduct in office.

PRELIMINARY STATEMENT

By letter dated December 20, 1991, the Respondent was advised that he had been suspended and that dismissal proceedings were being initiated against him "for conduct unbecoming a School Board employee, willful neglect of duty, and misconduct in office." The Respondent timely requested a hearing and in due course the School Board referred the matter to the Division of Administrative Hearings for assignment of a Hearing Officer. Thereafter, on March 25, 1992,

the Respondent was served with a Notice Of Specific Charges, which contains detailed allegations of the factual basis upon which the School Board proposes to dismiss the Respondent.

At the hearing on June 3, 1992, the School Board presented the testimony of the Respondent and four other witnesses. At the conclusion of the School Board's evidence, the Respondent testified further on his own behalf, but did not call any additional witnesses. Neither party offered any exhibits. At the conclusion of the hearing both parties stated that they did not intend to file a transcript with the Hearing Officer. The parties were allowed until June 18, 1992, within which to serve their proposed recommended orders. Both parties filed proposed recommended orders containing proposed findings of fact and conclusions of law. Specific rulings on all proposed findings of fact submitted by both parties are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material to this case, the Respondent, Hector Valdez, was employed by the School Board as a School Monitor and was assigned to work at Hialeah Miami Lakes Senior High School. At all times material to this case, Michael Bowers (who is not a party to this proceeding) was also employed as a School Monitor and was assigned to work at Hialeah Miami Lakes Senior High School. The Respondent and Michael Bowers were coworkers; neither was supervisor over the other.

   
   

2. On September 25, 1991, for the first time ever, the Respondent gave Bowers a ride in the Respondent's car after work. First they went to the union office. Bowers' beeper went off and Bowers asked the Respondent to drive him to Bowers' mother's house. The Respondent complied. While the two men were at the residence of Bowers' mother, Bowers' beeper went off again.

   
   

3. Bowers told the Respondent that the last beeper call was from a runaway girl or from a girl who had been thrown out of the house by her mother. Bowers went on to explain that he needed to meet the girl to talk to her and try to convince her to go home. To that end, Bowers asked the Respondent to drive him to one of the Metro stations. The Respondent complied with Bowers' request.

   
   

4. At the Metro station Bowers met two girls. The Respondent had never seen either of the two girls before. From their age and appearance, they looked like they might be students, but the Respondent did not know whether they were students. The oldest of the two girls appeared to be pregnant. Bowers explained to the Respondent that he (Bowers) needed to go somewhere to talk to the girls and try to convince them to go home. Purportedly to that end, Bowers asked the Respondent to drive him and the two girls to a motel. The Respondent complied with the request.

   
   

5. When they arrived at the motel, Bowers and the girls went into the motel and Bowers obtained a motel room. The Respondent remained in his automobile and played no part in obtaining the motel room. A few minutes later, Bowers asked the Respondent to take him to buy a pizza. The Respondent drove Bowers to a pizza shop and then drove Bowers and the pizza back to the motel. The Respondent left Bowers at the motel and did not see Bowers or the two girls again until the next morning at work. The Respondent did not know that Bowers intended to spend the night at the motel with the two girls, nor was he aware that Bowers intended to engage in any other form of improper conduct with either of the two girls.

6. On September 26, 1991, when Bowers reported to work at Hialeah Miami Lakes Senior High School, he brought with him the same two girls who had been with him at the motel the previous day. The Respondent did not play any role in transporting the two girls from the motel to the high school on September 26, 1991, and did not find out until several days later that Bower had spent the night at the motel with the two girls and had brought them to the school. 1/

   
   

7. On September 26, 1991, after the Respondent reported to work at Hialeah Miami Lakes Senior High School, he saw the two girls who had been with Bowers at the motel the previous evening. The girls were on the school campus and the Respondent knew they were not supposed to be there because they were not students at Hialeah Miami Lakes Senior High School. 2/ As soon as he saw the two girls on September 26, 1992, the Respondent went looking for Bowers. When the Respondent found Bowers he told him the girls were on campus, reminded him that the girls weren't supposed to be there, and told him that he (Bowers) needed to do something about it. Bowers assured the Respondent that he would so something to take care of the matter. Bowers did not do anything effective to take care of the matter, because the two girls remained at Hialeah Miami Lakes Senior High School all day on September 26, 1991. The Respondent knew that Bowers had not taken care of the matter because he saw the two girls on the school campus several times during the day on September 26, 1991.

   
   

8. On September 26, 1991, the Respondent did not report to the school administrators of Hialeah Miami Lakes Senior High School that the two girls who had been with Bowers at the motel were on the school campus. The Respondent's duties as a School Monitor required that he make a report to the school administrators of any trespassers on the school campus. The Respondent was aware of his duty to report trespassers on the school campus. At the hearing the Respondent candidly admitted that he failed to follow proper procedure on September 26, 1991, by failing to report the presence on campus of the two girls who had been with Bowers the previous evening.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Sec. 120.57(1), Fla. Stat.

   
   

10. Section 230.03(2), Florida Statutes, reads as follows:

    
    

    (2) In accordance with the provisions of s. 4(b) of Art. IX of the State Constitution, district school boards shall operate, control, and supervise all free public schools in their respective districts and may exercise any power except as expressly prohibited by the State Constitution or general law.

    
    

11. Section 231.02, Florida Statutes, requires that all employees of any district school system be of good moral character, and subsection (2)(b) of that statutory provision states, among other things:

    
    

    The Commissioner of Education shall provide guidelines regarding standards of good moral character for use in the development of these policies. Within these standards, the lack of good moral character shall be defined as having been convicted of a crime involving moral turpitude.

12. Section 230.23(5)(f), Florida Statutes, authorizes all school boards to suspend and/or dismiss any employee of a school board. However, that section of the statutes does not contain any provisions regarding the grounds for suspension or dismissal of non-instructional employees.

    
    

13. The letter of December 20, 1991, advising the Respondent of his suspension and proposed dismissal states that the action is being taken "in accordance with Sections 230.23(5)(f) and 231.02, Florida Statutes, and School Board Rule 6Gx13-4A-1.21(1), Responsibilities and Duties, Employee Conduct." In the Notice Of Specific Charges the Respondent is again advised (in Paragraph 10) that the School Board's action is "in accordance with" the statutes cited above, and in the last paragraph of each of the three counts in the Notice Of Specific Charges the Respondent is advised that his alleged conduct is "a ground warranting dismissal, pursuant to School Board Rule 6Gx13-4A-1.21(1)."

    
    

14. Preliminary to a discussion of the application of the facts in this case to the applicable law, it is important to note that the only conduct of the Respondent that arguably provides a basis for disciplinary action is his failure on September 26, 1991, to report the presence of the two trespassing girls. The facts regarding his conduct on September 25, 1991, reveal that, at most, the Respondent was an uninformed "patsy" for Bowers. There is no persuasive evidence that the Respondent even had any "guilty knowledge" as to what Bowers planned to do with the two girls at the motel; much less that he was a co- conspirator with Bowers to perpetrate some misconduct involving Bowers and the two girls. 3/

    
    

15. Directing attention now to the statutory provisions relied upon by the School Board, it is first noted that, although Section 230.03(2), Florida Statutes, authorizes all school boards to "exercise any power except as expressly prohibited by the State Constitution or general law," and Section 230.23(5)(f), Florida Statutes, authorizes all school boards to suspend and/or dismiss any employee of a school board, neither of these two cited provisions recites any grounds for disciplinary action, nor do they contain any standards by which to determine what conduct does and does not warrant disciplinary action. Accordingly, it must be concluded that the Respondent's conduct does not constitute a violation of any standards of conduct in Sections 230.03(2) and 230.23(5), Florida Statutes, because neither of those statutory provisions articulates any standards of conduct or grounds for discipline. Specifically, neither of them authorizes disciplinary action for conduct unbecoming an employee, willful neglect of duty, or misconduct in office.

    
    

16. Section 231.02, Florida Statutes, which is the other statutory provision relied upon in the Notice Of Specific Charges, does not afford any basis for taking disciplinary action against the Respondent. That statutory provision requires that all employees of a district school system be of good moral character. That provision has no bearing on this case, because the Respondent has not been charged with immorality or with lacking good moral character.

    
    

17. Turning at last to the rule provision relied upon by the School Board, it is first noted that the text of School Board Rule 6Gx13-4A-1.21(1) was not offered as an exhibit and was not the subject of a request for official recognition; nor was the text of the rule otherwise made a part of the evidentiary record in this case. Because the text of the rule was not made part of the evidentiary record in this case, it appears to be impermissible to rely

    on the rule as a basis for disciplinary action against the Respondent. See Poirier v. Div. of Health, Dept. of Health and Rehabilitative Services, 351 So.2d 50 (Fla. 1st DCA 1977), at 53-54.

    
    

18. Although not offered into the evidentiary record at the time of hearing, in its proposed recommended order the School Board asserts that its rule 6Gx13-4A-1.21(1) provides as follows: "All persons employed by The School Board of Dade County, Florida are representatives of the Dade County Public Schools. As such, they are expected to conduct themselves in a manner that will reflect credit upon themselves and the school system." Assuming that the text of the rule has been accurately asserted in the School Board's proposed recommended order, even if Poirier, supra, did not preclude use of the rule in this case, the rule would not provide a basis for disciplinary action against the Respondent because, like the statutory provisions discussed above, the rule fails to provide any objective standards of conduct or grounds for discipline. Specifically, as described in the School Board's proposed recommended order, the subject rule says nothing about conduct unbecoming an employee, willful neglect of duty, or misconduct in office.

    
    

19. In all likelihood there is some written provision somewhere that places School Board employees on notice that they are subject to disciplinary action if they fail to perform some important aspect of their job duties. If there is such a provision, the Respondent's failure to report trespassers on September 26, 1991, would probably warrant some disciplinary action, perhaps even a short suspension from duty. But no such provision has been shown to exist and the Respondent has not been charged with a violation of any such provision. Therefore, there is no record basis for taking any disciplinary action against the Respondent.

RECOMMENDATION

On the basis of all of the foregoing, it is recommended that the School Board issue a Final Order in this proceeding to the following effect: Dismissing all charges against the Respondent and restoring him to his former position of employment with back pay from the date of his suspension.

RECOMMENDED in Tallahassee, Leon County, Florida, this 2nd day of July 1992.

MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SC 278-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July 1992.

ENDNOTES

1/ The record in this case does not contain any competent substantial evidence as to the details of what transpired during the night at the motel. An

investigation into the matter led the School Board authorities to believe that Bowers had sexual intercourse with one of the two girls. Bowers was dismissed from his employment as a School Monitor as a result of his role in this matter.

2/ At that time the older of the two girls was enrolled at another public high school in Dade County and the younger girl was enrolled in a public middle school.

3/ The conduct allegedly engaged in by Bowers was very serious misconduct that clearly warranted severe disciplinary action. The School Board authorities were justifiably outraged by what they believe Bowers did. But the record in this case does not provide any proper basis upon which to take disciplinary action against the Respondent as a result of Bowers' outrageous conduct. The Respondent in this case did not knowingly aid or abet Bowers' misconduct on September 25, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-0172

The following are my specific rulings on the proposed findings of fact submitted by all parties.

Findings proposed by Petitioner:

Paragraph 1: Accepted.

Paragraph 2: Included in conclusions of law, rather than in findings of fact. Paragraph 3: Included in preliminary statement, rather than in findings of fact.

Paragraphs 4 through 11: Accepted in substance with some editorial modification and with some additional findings which cast a somewhat different light upon the matter.

Findings proposed by Respondent:

Paragraph 1: First sentence accepted. Second sentence included in preliminary statement, rather than in findings of fact.

Paragraphs 2 through 7: Accepted in substance with some additional findings.

COPIES FURNISHED:

Gerald A. Williams, Esquire Labor Attorney

Haygood & Williams, P.A. The School Board of Dade

County, Florida Suite 562

1450 Northeast Second Avenue Miami, Florida 33132

William Du Fresne, Esquire Du Fresne and Bradley

2929 Southwest Third Avenue Miami, Florida 33129

Octavio J. Viciedo Superintendent

Dade County School Board 1450 Northeast 2nd Avenue Miami, Florida 33132

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 92-000172

Orders for Case No: 92-000172