DR. FRANK PETRUZIELO, as )
vs. ) CASE NO. 95-1936
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on July 19 and 20, 1995, in Fort Lauderdale, Florida.
For Petitioner: Carmen M. Rodriguez, Esquire
Whitelock, Soloff, Rodriguez and Williams, P.A.
At issue is whether respondent committed the offenses alleged in the administrative complaint and, if so, what disciplinary action should be taken.
By administrative complaint dated March 8, 1995, petitioner charged that respondent, who was employed by the School Board of Broward County as a Foreign Student Advisor, violated the provisions of Section 231.36(1)(a), Florida Statutes. The gravamen of petitioner's charge is twofold. First, petitioner contends that "[r]espondent, for his personal gain and advantage, charged students a fee to translate the foreign diplomas and certificates which he is required to translate and evaluate in the performance of his duties," that "[e]xchanges of money in furtherance of [such activity] were conducted on school time and on school property," and that "[r]espondent gave these documents . . . to School Board employees to notarize in their official capacity as employees of the Broward County School Board and on school time." Second, that "[r]espondent submitted forged/fraudulent claims for medical reimbursement to the administrator of the School Board's medical reimbursement account." Based on
such allegations, petitioner contends respondent violated the provisions of Section 231.36(1)(a), Florida Statutes, and Rules 6B-4.009(2), (3), and (4), Florida Administrative Code, by committing an act or acts evidencing "misconduct in office," "gross insubordination or willful neglect of duties," or "immorality," and seeks to terminate respondent's employment with the School Board of Broward County.
At hearing, petitioner called as witnesses: Josue Narvaez, Catherine Simeon, Mayra Menendez, Robert Crawford, Richard Thomas, Kelly Furlong, Jerry Siegel and Ronald Wright. Petitioner's exhibits 1-9 were received into evidence. Respondent called as witnesses: Angie Pollock, Robert Crawford, Lynne Husted and Gladys Allen. Respondent's exhibits 1 and 2 were received into evidence, as well as joint exhibit 1.
The transcript of hearing was filed August 11, 1995, and the parties were granted leave until August 21, 1995, to file proposed findings of fact. The parties' proposed findings have been addressed in the appendix to this recommended order.
The parties.
Petitioner, Frank Petruzielo, is the Superintendent of Schools, Broward County, Florida. Petitioner is obligated by law to recommend the placement of school personnel, require compliance and observance by all personnel with all law and rules, and report any violation thereof, with appropriate disciplinary action, against any school personnel failing to comply therewith to the School Board of Broward County, Florida.
Respondent, Josue Narvaez, was at all times material hereto an employee of the School Board of Broward County, Florida, holding a professional services contract as a teacher, and was employed as the Foreign Student Advisor at Atlantic Vocational Technical Center.
The charges.
By administrative complaint dated March 8, 1995, petitioner has charged respondent with "immorality," "misconduct in office," and "gross insubordination or willful neglect of duties," based on his contention that respondent charged students a fee to translate foreign diplomas and certificates which he was required to translate and evaluate as part of his job duties, accepted monies for such services during school hours and on school property, and had such documents notarized by School Board employees during school hours; and, that respondent submitted false claims for medical reimbursement to the administrator of the School Board's medical reimbursement account. Respondent, although admitting that he charged students a fee for translating documents, has denied that such activity was improper, and further denied that he submitted false claims for medical reimbursement.
The proof relating to the charge that respondent charged for translation services.
Atlantic Vocational Technical Center is an educational unit of the Broward County School Board which provides educational opportunities for
residents of Broward County. Among those residents is a large population of foreign speaking students including, inter alia, students of Haitian and South American origin.
In the case of Haitian students, their predominate language is Creole, and their previous educational experiences are generally reflected in documentation written in the French language. On the other hand, the students of South American origin are generally speakers of Spanish, and their previous educational experiences are generally reflected in documentation written in the Spanish language.
To properly place this population of foreign speaking students in the school's vocational programs, it is necessary to provide a language assessment, as well as an assessment of the documentation reflecting their previous educational experiences, to assure that each student has the basic credentials or prerequisites for any particular vocational program. Respondent, who is fluent in English, French, and Spanish, and conversational in Creole, was initially engaged part-time and ultimately full-time as the school's foreign student advisor and, as such, functioned as the "point person" for any foreign student entering the school.
As the foreign student advisor, it was respondent's obligation to counsel and intake such students, provide needed language assessments, and to review or evaluate the documentation they possessed reflecting their previous educational experiences to validate their level of attainment, and to provide the school with a written evaluation or statement of educational credentials certifying the student's level of academic education, i.e., that the student had "attained a level of academic education which is at least equal to that of high school completion in the United States System of education." 1/
Given respondent's fluency in French and Spanish, coupled with his job related responsibility to validate, as necessary, a foreign student's prior level of academic achievement, it was reasonable for the school to expect that respondent would utilize his language skills to provide the needed evaluation without the need to resort to a written translation of the student's documentation reflecting previous educational experience. Indeed, written translations of such documents, where the school had on staff employees fluent in the student's language, was not a requirement for evaluation or entry into the school's programs.
Notwithstanding the expectations of his employment, respondent routinely advised students who sought such an evaluation and validation that he would not provide the service absent a written translation of their foreign certificates, diplomas or other documentation into the English language. According to respondent, he advised the students that he could, for a fee, provide the translation service or they could use the services of an outside translator. Where he provided the service, respondent routinely did the translations at his home during his off-duty hours, but had the written translation notarized by one of the registrars at the school during the school day, and delivered the documents to the student at the school during the school day. For such services, respondent generally charged from $20.00 to $50.00, depending on the number of documents that were translated.
That respondent was charging for such services was apparently reported by various students to Marie Marseille, a teacher assistant in the SAIL (System of Applied Individualized Learning) program, who in turn reported such statements to Lynne Husted, the department head for the SAIL program at the
school. Ms. Husted was apparently of the opinion that she "could do nothing unless a student would come to [her] directly," and took no action until late September 1994 following a conversation with a former student, Baron Pyram.
In September 1994, Baron Pyram, a former student, approached Que Nghiem at the school to seek assistance in securing a written translation of a diploma he had received in auto mechanics while a resident in Haiti. According to Baron, he needed the translation by the next day so he could seek employment. Mr. Nghiem, a teacher, referred Baron to the respondent.
Ms. Husted, hearing of the referral, told Baron to follow Mr. Nghiem's direction but if respondent requested a fee for the service to return to her and she would see that it was translated for free.
Baron did request that respondent translate his diploma, but notwithstanding Ms. Husted's advice, agreed to pay respondent a fee of $25.00 and gave respondent an $8.00 deposit.
The following day, Baron picked up the translation from respondent at the school, duly notarized by one of the registrars, and paid respondent the balance owed.
Following the transaction, Mr. Crawford, the school principal, met with respondent in respondent's office and asked him about the transaction. Respondent freely admitted he had done the translation for Baron for $25.00, and refused, despite Mr. Crawford's request, to return the $25.00 to Baron. Given the circumstances, it was respondent's opinion that there was no impropriety in his accepting a fee from Baron for such service.
With regard to the Baron Pyram transaction, the proof fails to demonstrate any impropriety in respondent's acceptance of a fee for his translation services. Baron was not a student at the time, Baron specifically requested the translation, the translation was unrelated to respondent's job duties as a foreign student advisor, and the translation itself was done at respondent's home and not during school hours. That respondent accepted the fee for the service on school property has not been shown to be improper, and his use of a school registrar to notarize his translation has likewise not been shown to be improper. 2/ Indeed, respondent's testimony that the registrar's notarization of documents for school employees was a routine courtesy is accepted, and the provision of such courtesy was not shown to have been time- consuming or disruptive of the registrar's regular duties.
Notwithstanding the lack of impropriety in the Baron Pyram matter, the proof does support the conclusion that respondent's refusal to evaluate and validate the prior level of academic achievement of foreign students, absent a written translation into English, was contrary to his job duties as foreign student advisor. The proof further supports the conclusion that his advice to foreign students that such translations were required for an evaluation was false and deceptive, and that the use of such deception was instrumental in his attracting fees for translation services that were otherwise not required by the school or for an evaluation of their educational status.
The proof relating to the charge that respondent submitted forged/fraudulent claims for medical reimbursement.
Incident to his employment with the School Board, respondent was accorded the opportunity to participate in the School Board's reimbursement
account. Such account is a voluntary program where employees may allocate pretax dollars under the Internal Revenue Service Code for medical expenses, and from which they may seek reimbursement for medical expenses that are not covered by insurance and thereby save tax dollars.
For the 1993 tax year, respondent elected to participate in the program at a rate of $100.00 each month for a total of $1,200.00 annually. Notably, under the program, as regulated under the Internal Revenue Service Code, respondent's entire $1,200.00 annual commitment, although sheltered at
$100.00 each month, is available on January 1st of the tax year to pay nonreimbursed medical expenses. The School Board, as respondent's employer, essentially funds the account as of January 1st of the tax year, and recovers the monies over the course of the year by monthly salary redirection, provided respondent continues to be employed.
On or about January 7, 1993, respondent submitted to First Benefits, Inc., the administrator of the School Board's medical reimbursement account, a claim for $1,165.00 for eye care services respondent claimed were rendered by Dr. Jerry Siegel. Attached to the claim were two statements, one reflecting a date of service of January 4, 1993, for respondent at a total charge of $595.00, and a second reflecting a date of service of January 6, 1993, for respondent's daughter at a total charge of $570.00. Notably, at $1,165.00, the claim respondent submitted in January was only $35.00 short of his annual participation and, if accepted for payment, would have required the School Board to effectively pay respondent the amount of the claim, with the expectation that such sums would be recovered over the course of the year from respondent's monthly salary reduction.
On January 25, 1993, First Benefits, Inc., denied respondent's claim for reimbursement predicated on advice from Dr. Siegel that "the services in question were not rendered on the dates enclosed."
At hearing, the proof demonstrated that the statements for services to respondent and his daughter for January 4, 1993, and January 6, 1993, were fabrications, and that Dr. Siegel had rendered no such services to respondent or his daughter. Accordingly, the proof supports the conclusion, as alleged by petitioner, that "[r]espondent submitted forged/fraudulent claims for medical reimbursement to the administrator of the School Board's medical reimbursement account."
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57(1), Florida Statutes.
At issue in this proceeding is whether respondent should be dismissed from his employment as a foreign student advisor and his continuing contract status as an instructional employee terminated, or otherwise disciplined, with the School Board of Broward County as a consequence of the allegations set forth in the administrative complaint. In cases of this nature, petitioner bears the burden of proving his charges by a preponderance of the evidence. Allen v. School Board of Dade County, 571 So.2d 568 (Fla. 3d DCA 1990).
Pertinent to this case, Section 231.36(4)(c), Florida Statutes, provides:
Any member of the district administrative or supervisory staff and any member of the instructional staff, including any
principal, who is under continuing contract may be suspended or dismissed at any time during the school year; however, the charges against him must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude. Whenever such charges are made against any such employee of the school board, the school board may suspend such person without pay; but, if the charges are not sustained, he shall be immediately reinstated, and his back salary shall be paid. . . .
Here, respondent has been suspended without pay pending the resolution of the charges against him. Those charges involve two claims of misconduct. First, petitioner charges that "[r]espondent for his personal gain and advantage, charged students a fee to translate the foreign diplomas and certificates which he is required to translate and evaluate in the performance of his duties," that "exchanges of money in furtherance of [such activity] were conducted on school time and on school property," and that "[r]espondent gave these documents . . . to School Board employees to notarize in their official capacity as employees of the Broward County School Board and on school time." Second, petitioner charges that "[r]espondent submitted forged/fraudulent claims for medical reimbursement to the administrator of the School Board's medical reimbursement account." Such conduct, petitioner contends, evidences "immorality," "misconduct in office" and "willful neglect of duty" or "misconduct in office."
Relevant to the foregoing charges, Rule 6B-4.009(2), Florida Administrative Code, defines "immorality" 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.
In addressing the issue of "immorality," it is axiomatic that the moral standard to be upheld must be viewed in context with the profession at issue. See Adams v. Professional Practices Council, 406 So.2d 1170 (Fla. 1st DCA 1981). Teachers "charged by Sections 23.109 and 231.28(1) with providing leadership and maintaining effectiveness as teachers . . . are traditionally held to a high moral standard in the community." Adams, supra, at page 1172. Accord, Tomerlin v. Dade County School Board, 318 So.2d 159 (Fla. 1st DCA 1975), wherein the court observed at page 160:
A school teacher holds a position of great trust. We entrust the custody of our children to the teacher. We look to the teacher to educate and to prepare our children for their adult lives.
To fulfill this trust, the teacher must be of good moral character; to require less would jeopardize the future lives of our children.
Also pertinent to this case, Rule 6B-4.009(3), Florida Administrative Code, defines "misconduct in office" as:
. . . a violation of the Code of Ethics of the Education Professional 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 individuals effectiveness in the school system.
The Principles of Professional Conduct for the Education Profession in Florida provide at Rule 6B-1.006, Florida Administrative Code, the following principles to guide an educator's conduct:
Obligation to the student requires that the individual:
* * *
(h) Shall not exploit a relationship with a student for personal gain or advantage.
* * *
Obligation to the public requires that the individual:
* * *
(c) Shall not use institutional privileges for personal gain or advantage.
* * *
Obligation to the professional of education requires that the individual:
Shall maintain honesty in all professional dealings.
* * *
(h) Shall not submit fraudulent information
on any document in connection with professional activities. 3/
Webster's Ninth New Collegiate Dictionary (1986), defines "honest" as being "free from fraud or deception," and "honesty" as:
. . . a: fairness and straight forwardness of conduct b: adherence to the facts:
SINCERITY . . .
syn HONEST, HONOR, INTEGRITY, PROBITY mean
uprightness of character or action. HONESTY implies a refusal to lie, steal, or deceive in any way. . . .
It further defines "fraudulent" as "characterized by, based on, or done by fraud: DECEITFUL," and "fraud" as:
. . . a: DECEIT, TRICKERY; specif: intentional perversion of truth in order to induce another
to part with something of value or to surrender a legal right b: an act of deceiving or misrepresenting. . . .
Therefore, to establish that respondent failed to "maintain honesty" in his professional dealings or that he submitted "fraudulent information" when he submitted the subject reimbursement request, it was incumbent upon petitioner to show not only that respondent provided false or misleading information regarding a material fact, but also that he knowingly did so with the intent to deceive. See, Gentry v. Department of Professional Occupational Regulation, 293 So.2d 95, 97 (Fla. 1st DCA 1974) (statutory provision prohibiting physician from "[m]aking misleading, deceptive and untrue representations in the practice of medicine" held not to apply to "representations which are honestly made but happen to be untrue"; "[t]o constitute a violation, . . . the legislature intended that the misleading, deceptive and untrue representations must be made willfully (intentionally)"), and Naekel v. Department of Transportation, 782 F.2d 975, 978 (Fed. Cir. 1986) ("a charge of falsification of a government document requires proof not only that an answer is wrong, but also that the wrong answer was given with intent to deceive or mislead the agency").
Finally, Rule 6B-4.009(4), Florida Administrative Code, defines "Gross insubordination or willful neglect of duties" as:
. . . a constant and continuing intentional refusal to obey a direct order, reasonable
in nature, and given by and with proper authority.
Applying the foregoing standards to the facts of this case compels the conclusion that respondent has, by charging students a fee to translate the foreign documents which he was required to translate and evaluate in the performance of his duties, violated the provisions of Section 231.36(4)(c), Florida Statutes, by committing "misconduct in office," as that term is defined by Rules 6B-4.009(3) and 6B-1.006(3)(h), (4)(c), and (5)(a), Florida Administrative Code. The proof further supports the conclusion that respondent has, by submitting a fraudulent claim for medical reimbursement to the administrator of the School Board's medical reimbursement account, violated the provisions of Section 231.306(4)(c), Florida Statutes, by committing an act of "immorality," as defined by Rule 6B-4.009(2), Florida Administrative Code, as well as "misconduct in office," as defined by Rules 6B-4.009(3) and 6B- 1.006(5)(a) and (h), Florida Administrative Code. The proof fails, however, to support the conclusion that respondent's conduct constituted "gross insubordination or willful neglect of duty" as proscribed by Section 231.36(4)(c), Florida Statutes, and Rule 6B-4.009(4), Florida Administrative Code.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered sustaining respondent's
suspension, and terminating his employment with the School Board of Broward County, Florida.
DONE AND ENTERED this 11th day of September 1995 in Tallahassee, Leon County, Florida.
WILLIAM J. KENDRICK
Filed with the Clerk of the Division of Administrative Hearings this 11th day of September 1995.
1/ That respondent's job duties included such responsibilities is supported by the testimony of Robert Crawford, the principal of Atlantic Vocational Technical Center, Mayra Menendez, the director of the English for Speakers of Other Languages (ESOL) program, and respondent's job description. As to the job description, it is observed that it includes the responsibility to "perform [such] other duties as assigned by the Principal" which, with regard to respondent's position as the foreign student advisor at the school, included the following responsibilities which were memorialized in writing:
Provide for foreign student recruitment, advisement and placement within the guidelines of federal and state laws as well as school board policies.
Juxtaposed with such proof, respondent's testimony regarding his job duties and responsibilities as foreign student advisor was equivocal and, to the extent it is contrary to the conclusions reached regarding his responsibilities, such testimony is rejected as not credible.
2/ In reaching the conclusion that respondent's acceptance of the fee for translation services on school property was not improper petitioner's reliance on School Board Policy 3411 and the school's policy has not been overlooked. [Transcript, page 87 and 88.] Such policies are, however, inapposite to the circumstances of this case.
3/ Petitioner also relied upon the provisions of Rule 6B-1.006(3)(g) and 4(b) as a predicate for a Rule 6B-4.009(3) violation. Such provisions are, however, inapposite to the instant case.
Addressed in paragraph 22, otherwise rejected as contrary to the facts as found or argument.
Carmen M. Rodriguez, Esquire Whitelock, Soloff,
Rodriguez & Williams, P.A.
Mr. Josue Narvaez 7972 Orleans Street
Dr. Frank R. Petruziello Superintendent, Broward County Schools 600 Southeast Third Avenue
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.
