STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3662

)

CHICO J. ARENAS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Michael M. Parrish, conducted a formal hearing in this case on November 10, 1992, at Miami, Florida. Appearances for the parties at the hearing were as follows:

APPEARANCES

For Petitioner: James C. Bovell, Esquire

75 Valencia Avenue

Coral Gables, Florida 33134

For Respondent: David Rothman, Esquire

Thornton, Rothman & Emas, P.A.

200 South Biscayne Boulevard Miami, Florida 33131

STATEMENT OF THE ISSUES

This is a case in which the Petitioner seeks to suspend and terminate the Respondent's employment on the basis of allegations of misconduct set forth in a Notice of Specific Charges. The allegations of misconduct charge the Respondent with immorality, misconduct in office, and gross insubordination.

PRELIMINARY STATEMENT

At the formal hearing in this case, the Petitioner presented the testimony of five witnesses. The Petitioner also offered two exhibits which were received in evidence.

Relying on Chapter 934, Florida Statutes, and on cases such as State v.

Tsavaris, 394 So.2d 418 (Fla. 1981), the Respondent argued at the hearing and in his post-hearing memorandum that all, or substantially all, of the Petitioner's evidence should have been excluded on the grounds that it was derived from an illegally intercepted communication. The Respondent's arguments in this regard were sustained in part and overruled in part. They were sustained to the extent of excluding any testimony by the witness who intercepted one of the subject telephone calls. The arguments were overruled with regard to the testimony of the other witnesses called by the Petitioner. Specifically, E. W., who was the

person the Respondent had called and intended to speak to at the time of the interception, was permitted to testify as to what she said and heard during the telephone conversation and during two earlier telephone conversations which were not intercepted.

At the formal hearing the Respondent presented the testimony of eleven witnesses. The Respondent also offered one exhibit which was received into evidence. The Respondent did not testify.

At the conclusion of the formal hearing, the parties requested, and were granted, 15 days from the filing of the transcript within which to file their proposed recommended orders. The transcript was filed with the Hearing Officer on December 31, 1992. Thereafter, on January 15, 1993, both parties filed proposed recommended orders containing proposed findings of fact and conclusions of law. The parties' proposals have been carefully considered during the preparation of this Recommended Order. Specific rulings on all proposed findings of fact submitted by all parties are contained in the appendix hereto.

FINDINGS OF FACT

1. At all times material to this proceeding, the Respondent, Chico J. Arenas, was employed as a teacher by the Dade County Public Schools pursuant to a professional services contract.

   
   

2. At the time of the hearing in this case, K. F. was a fifteen-year-old student in the 10th grade. She is a former student of the Respondent. At the time of the hearing, E. W. was a fifteen-year-old student in the 10th grade. She is also a former student of the Respondent. Both K. F. and E. W. are females.

   
   

3. Shortly after Halloween in 1990, one day when the Respondent and K. F. were alone in a classroom, the Respondent asked K. F. whether a male student named M. was "getting action." At that time M. was a close friend of K. F. The term "getting action" was a reference to sexual intercourse. When K. F. answered the question in the negative, the Respondent repeated the question and also made statements to the effect of, "M. is lucky," that he had "heard Jamaicans are wicked in bed," and that "older guys will show you more." The Respondent also told K. F. that she made him "excited." K. F. construed these statements as being sexual in nature. As a result of these statements by the Respondent, K. F. lost the trust she had in her teacher and never went back to his class.

   
   

4. The incident involving K. F. resulted in the Respondent being made formally aware of the School Board's policies with regard to inappropriate statements to female students containing expressed or implied sexual references and the Respondent was specifically directed to avoid sexual harassment of female students.

   
   

5. Beginning in February of 1992, on three separate Saturdays, at approximately 11:00 a.m. on each of those days, the Respondent telephoned E. W. at her home. At that time E. W. was one of the Respondent's students. On each of those occasions the Respondent's statements to E. W. were of a personal nature and had nothing to do with the fulfillment of Respondent's duties as a teacher.

   
   

6. On the first of the three telephone calls to E. W., the Respondent identified himself, but there was very little other conversation. Shortly after

   the Respondent identified himself to her, E. W. told him that she was doing something and asked if he could call back later.

   
   

7. During the course of the second telephone call, the Respondent made statements to E. W. to the effect that he "liked" her and that he had "feelings" for her. The Respondent also told E. W. that she was "a beautiful young lady" and that she "had a nice shape." After just a few such statements, E. W. told the Respondent to call back later and she hung up. The Respondent's statements during the second telephone conversation led E. W. to believe that the Respondent had a romantic or sexual interest in her.

   
   

8. During the course of his third Saturday telephone call to E. W., the Respondent repeated statements to the effect that he liked her, that she had a beautiful shape, and that she was a beautiful young lady. He went on to also tell her such things as that "he wanted to wrap his hands around [her] and hold [her] tight," that "he wanted to give [her] things," that her boyfriend "didn't have to know what was going on," and he also told her "not to tell her mamma [she] was talking to him on the phone." The Respondent also asked E. W. to meet him in the library near her home and to otherwise skip school so that she could be with him. The Respondent also made comments to the effect that he could do more for E. W. than her boyfriend could and that she was "a beautiful young lady, and [she] deserved beautiful things." As a result of the statements during the third Saturday telephone call, E. W. became convinced that the Respondent wanted to have a sexual relationship with her and she began taking steps to avoid the Respondent.

   
   

9. As a student, E. W. was doing well in the Respondent's class. If she had had any personal problems that came to the attention of the Respondent, it would have been his responsibility to have referred her to one of the school counsellors. The Respondent is not certified as a counselor or as a psychologist. At the time of the telephone calls to E. W. described above, the Respondent did not have any school related business which required him to call

   E. W. at home, nor was he trying to reach E. W.'s mother.

   
   

10. When the events described above were reported to school officials, the Respondent was removed from a school based employment site and reassigned to work elsewhere. The reassignment and the reasons for it became known to a number of administrators, teachers, parents, and students. The disclosure of information about the matter resulted in part from statements the Respondent made to others.

    
    

11. The Respondent's effectiveness as a teacher has been impaired as a result of his conduct with E. W. and his prior principal would be reluctant to rehire him as a teacher. The Respondent's conduct with E. W. also constitutes misconduct in office and is a breach of his professional relationship of trust with students because it exposed a student to embarrassment and disparagement. The Respondent's conduct with E. W. also constitutes immorality.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. In a case of this nature, the Petitioner has the burden of establishing by a preponderance of the evidence the allegations against the Respondent. Dileo v. School Board of Dade County, 15 FLW 2781 (Fla 3d DCA Nov.

    13, 1990); Allen v. School Board of Dade County, 16 FLW 69 (Fla. 3d DCA Jan. 4, 1991). As reflected in the foregoing findings of fact, the Petitioner has met its burden in this case.

    
    

14. Section 231.36, Florida Statutes, provides, in pertinent part, as follows:

    
    

    (1)(a) Each person employed as a member of the instructional staff in any district school system shall be properly certificated and shall be entitled to and shall receive a written contract as specified in chapter 230. All such contracts, except continuing contracts as specified in subsection (4), shall contain provisions for dismissal during the term of the contract only for just cause. Just cause includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.

    * * *

    (6)(a) Any member of the instructional staff, excluding an employee specified in subsection (4), may be suspended or dismissed at any time during the term of the contract; however the charges against him must be based on just cause as provided in paragraph (1)(a). . . .

    
    

15. With regard to the charge that the Respondent is guilty of "immorality," the School Board contends that the Respondent's acts constitute immoral conduct and that "immorality" should be considered as a basis for the termination of the Respondent's employment as a professional services contract teacher because the statutory definition of "just cause" found in Section 231.36(1)(a), Florida Statutes, is not all inclusive. The Petitioner's construction of the term "just cause" is supported by Sherburne v. School Board of Suwannee County, 455 So.2d 1057 (Fla. 1st DCA 1984). Accordingly, immorality is one of the grounds upon which a professional services contract teacher may be dismissed.

    
    

16. Rule 6B-4.009(2), Florida Administrative Code, defines the term "immorality" as follows:

    
    

    Immorality is defined as conduct that is inconsistent with the standards of public conscience and good 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.

    
    

17. The facts established in this case constitute "immorality" within the meaning of the above-quoted definition. Accordingly, the Respondent is guilty of the violation charged in Count I of the Notice of Specific Charges.

18. With regard to the charge that the Respondent is guilty of misconduct in office, it is first noted that "misconduct in office" is one of the statutory grounds for dismissal of a teacher employed under a professional services contract. See Section 231.36(1)(a), Florida Statutes. Rule 6B-4.009(3), Florida Administrative Code, defines "misconduct in office" as follows:

    
    

    Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, FAC, and the Principles of Professional Conduct of the Education Profession in Florida as adopted in Rule 6B- 1.006, FAC, which is so serious as to impair the individual's effectiveness in the school system.

    
    

19. Rule 6B-1.006, Florida Administrative Code, is entitled "Principles of Professional Conduct for the Education Profession in Florida" and 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 and safety.

       * * *

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

       
       

20. The evidence in this case establishes that the Respondent's conduct regarding E. W. constitutes misconduct in office within the meaning of Section 231.36(1)(a) and (6)(a), Florida Statutes. Accordingly, the Respondent is guilty of the violation charged in Count II of the Notice of Specific Charges.

    
    

21. With regard to the charge that the Respondent is guilty of gross insubordination, it is first noted that the term "gross insubordination," is defined at Rule 6B-4.009(4), Florida Administrative Code, as follows:

    
    

    Gross insubordination or willful neglect of duties is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.

    
    

    And in Johnson v. School Board of Dade County, 578 So.2d 387 (Fla. 3d DCA 1991), on facts somewhat similar to the facts in this case, the court applied the term "gross insubordination" as follows:

    
    

    Two charges were leveled against Johnson: (1) misconduct in office; and (2) gross

    insubordination. The hearing examiner found the evidence sufficient to support the first charge, but found, implicitly, that the second charge was not proved by a preponderance of the evidence. While accepting all the hearing examiner's findings of fact, the School Board's attorney took exception to the conclusion that the facts did not support a finding of gross insubordination.

    
    

    We have examined those parts of the record referred to by the School Board, and find competent and substantial evidence that the teacher had been instructed, following previous incidents of improper physical contact, to refrain from touching or publicly demeaning students, even as a disciplinary measure. The specific incident for which Johnson was charged not only supported the misconduct charge, but was also a violation of direct orders previously given to refrain from such conduct. In light of our agreement with the School Board that the facts as found by the hearing examiner will support the gross insubordination charge as a matter of

    law, the Final Order appealed from must stand.

    
    

22. Like the employee in the Johnson case, supra, the Respondent in this case was earlier instructed to refrain from certain conduct. His later act of engaging in the type of conduct he had been directed to avoid, "not only supported the misconduct charge, but was also a violation of direct orders previously given to refrain from such conduct." Accordingly, as in the Johnson case, supra, the facts in this case are sufficient to prove the charge of gross insubordination in Count III of the Notice of Specific Charges.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that the School Board issue a final order in this case concluding that the Respondent is guilty of immorality, misconduct in office, and gross insubordination as charged in the Notice of Specific Charges and, on the basis of those conclusions, terminating the Respondent's employment.

DONE AND ENTERED this 10th day of January 1994 in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of January 1994.

APPENDIX

The following are the Hearing Officer's specific rulings on all proposed findings of fact submitted by all parties:

Findings of Fact submitted by Petitioner:

Paragraphs 1, 2, and 3: Accepted in substance with some details modified in the interest of clarity.

Paragraph 4: Rejected as irrelevant because the conduct described here was not charged in the Notice of Specific Charges.

Paragraphs 5, 6, 7, the unnumbered paragraphs following 7, 8, and 9: Accepted in substance with some details modified in he interest of clarity and accuracy.

Paragraphs 10 and 11: The essence of these paragraphs has been accepted, but most details have been omitted as unnecessary.

Findings of Fact submitted by Respondent:

By way of clarification, it is noted that the Respondent submitted two post-hearing documents in support of his positions on the issues: one titled RESPONDENT'S MEMORANDUM IN SUPPORT OF HIS PROPOSED ORDER RECOMMENDING REINSTATEMENT, and the other titled RESPONDENT'S PROPOSED FINDINGS OF FACT AND

ORDER. The first of these two documents includes an extensive summary of the testimony, which summary has been carefully reviewed by the Hearing Officer. However, because those summaries do not constitute proposed findings of fact, they are not specifically addressed below. Here, as in the usual course of events, it would serve no useful purpose to recite at length the extent to which the summaries are or are not accurate and to do so would add to this Recommended Order voluminous subordinate and unnecessary details; details which have been carefully considered during the fact-finding in this case.

Specifically addressed below are the paragraphs contained in the "Findings of Fact" portion of the RESPONDENT'S PROPOSED FINDINGS OF FACT AND ORDER.

Paragraphs 1, 2 and 3: Rejected as contrary to the greater weight of the evidence. (This disposition of the proposed findings is, in any event, irrelevant in view of the Hearing Officer's disposition of the immorality charge).

Paragraph 4: Rejected as contrary to the greater weight of the evidence. The evidence is sufficient to prove the acts alleged by a preponderance of the evidence.

Paragraph 5: Rejected as contrary to the greater weight of the evidence and as constituting a proposed conclusion of law, rather than proposed findings of fact. (On the basis of Johnson v. School Board of Dade County, 578 So.2d 387 (Fla. 3d DCA 1991), the Hearing Officer has reached a conclusion different from the one proposed here.)

COPIES FURNISHED:

David Rothman, Esquire

Thornton, Rothman and Emas, P.A.

200 South Biscayne Boulevard Miami, Florida 33131

James C. Bovell, Esquire

75 Valencia Avenue

Coral Gables, Florida 33134

Dr. Joyce Annunziata, Director Office of Professional Standards Dade County Public Schools

1444 Biscayne Boulevard

Miami, Florida 33132

Octavio J. Visiedo, Superintendent Dade County School Board

1450 Northeast Second Avenue #403

Miami, Florida 33132-1308

Madelyn P. Schere, Esquire

School Board Administration Building 1450 Northeast Second Avenue

Miami, Florida 33122

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 ten 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: 92-003662

Orders for Case No: 92-003662