STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 98-3949

)

MICHAEL DURRANT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on February 2, 1999, in Miami, Florida, before Administrative Law Judge Michael M. Parrish of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Madelyn P. Schere, Esquire

School Board of Miami-Dade County 1450 Northeast Second Avenue Suite 400

Miami, Florida 33132

For Respondent: Leslie A. Meek, Esquire

United Teachers of Dade 2929 Southwest Third Avenue Suite One

Miami, Florida 33129 STATEMENT OF THE ISSUES

At issue in this proceeding is whether the Respondent committed the offenses set forth in the Corrected Notice of

Specific Charges and, if so, what disciplinary action should be

taken against him.

PRELIMINARY STATEMENT

On August 16, 1998, the Petitioner, School Board of Miami- Dade County (School Board), suspended the Respondent, Michael Durrant, from employment and initiated dismissal proceedings against him. The Respondent filed a timely request for a hearing to challenge the School Board's action, and the matter was referred to the Division of Administrative Hearings for assignment of an administrative law judge to conduct a hearing pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

By Corrected Notice of Specific Charges, filed September 30, 1998, the School Board charged that the Respondent engaged in the following misconduct:

1. On or about February 26, 1987, after a report that Respondent had held a female student's hand, Respondent's principal directed him to refrain from coming into physical contact with students.

2. On or about December 5, 1988, a Conference-for-the-Record (CFR) was held with Respondent at which time he was provided a copy of the School Board's Employee Conduct Rule, 6Gx13-4A-1.21, and the Code of Ethics of the Education Profession in Florida (Ethics Code). He was directed to comply with these rules.

3. On or about February 27, 1996, a CFR was held with Respondent to discuss his performance. Respondent was advised of the

   availability of help through the Employee Assistance Program.

4. On or about February 27, 1996, after a previous informal conference about Respondent's serious tardiness problem, Respondent was directed by his principal to be punctual to school and meetings.

5. On or about January 31, 1997, Respondent was accused by two female students, I.R. (DOB 4/4/83) and A.C.(DOB 6/22/83) of having felt their breasts and having offered them money for a sexual act, in December 1996. As a result, on or about April 9, 1997, Respondent's principal met with him, advised him that the charges had been unsubstantiated, and provided him with a copy of the Ethics Code and the School Board's Employee Conduct Rule. Respondent was directed to abide by these rules.

6. From on or about January 16, 1997, through May, 1997, Respondent participated in am improper and intimate relationship with a female student, E.S-H. (DOB 12/23/82), which included, but was not limited to, hugging, kissing, sexual intercourse, oral sex, and fondling. These acts took place at Respondent's school and/or in his home.

7. On or about January 29, 1998, a CFR was held with Respondent to discuss the allegations referenced in 9 above. Respondent was again directed to comply with the School Board's Employee Conduct Rule, the Ethics Code, and Principles of Professional Conduct of the Education Profession in Florida (Principles). He was advised that his actions violated the directive to maintain a safe learning environment for all students. During the CFR, Respondent was directed to transmit to the School Board's Office of Professional Standards (OPS) a certified copy of the court's disposition in his criminal case within five days of the date of that CFR or, if the trial had not yet been held, to

   inform the OPS in writing of the scheduled trial date and all dates to which the trial is continued from that point on, and to transmit to the OPS a certified copy of the court's disposition within five days of the decision. He was advised that failure to comply with either of these directives would be deemed gross insubordination and would prompt a recommendation for disciplinary action.

8. On or about March 23, 1998, Respondent was advised that he had failed to comply with the directives issued at the January 29th CFR and that his continued acts of non-compliance were deemed gross insubordination.

9. On or about April 14, 1998, Respondent was again directed to comply with the previous directives and was formally apprised that failure to comply would be deemed gross insubordination.

10. On or about June 9, 1998, Respondent was not accessible via telephone as previously directed.

11. On or about June 10, 1998, Respondent was directed to attend a CFR on June 15, 1998, at 9:00 a.m.

12. On or about June 15, 1998, a CFR was held with Respondent to address his continual acts of non-compliance with administrative directives and the investigative report concerning the allegations referenced in 9 hereinabove. Respondent was tardy to the conference. As of the date of this CFR, Respondent still had not supplied court documentation to the OPS, as previously directed.

On the basis of the allegations quoted above, the School Board charged the Respondent with gross insubordination and/or willful neglect of duty, immorality, misconduct in office, conviction of crimes involving moral turpitude, and violation of

School Board rules, and requested the entry of an order "recommending the suspension of Respondent, Michael Durrant, without pay, and further recommending that Respondent be dismissed from his employment with the School Board of Miami- Dade County, Florida."

Here, the proof regarding the Respondent's sexual misconduct with a student is dispositive of the issue raised in this case (whether the Respondent should be suspended without pay, and whether he should be dismissed from his employment with the School Board), and it is unnecessary to address the several other grounds upon which the School Board urges the same disposition of this case. Accordingly, the findings of fact and conclusions of law in this Recommended Order do not address in any detail any of the allegations other than those related to sexual misconduct with a student.

At this final hearing on February 2, 1999, the School Board presented the testimony of nine witnesses and offered 11 exhibits. The School Board's Exhibit 2 was rejected; the other ten exhibits offered by the School Board were received in evidence. The Respondent testified on his own behalf and also presented the testimony of two other witnesses. The Respondent also offered one composite exhibit, which was received in evidence.1

At the conclusion of the hearing, the parties agreed to a deadline of March 5, 1999, for the submission of their respective proposed recommended orders.2 On March 4, 1999, the School Board filed a timely Proposed Recommended Order. On April 30, 1999, the Respondent filed a late Proposed Recommended Order.3 On May 5, 1999, the Petitioner filed a motion seeking the entry of an order striking the Respondent's Proposed Recommended Order.4 On May 21, 1999, the School Board filed a motion seeking to reopen the record in this case, and on May 24, 1999, the School Board filed a Notice of Filing Original Verdict Form.5

FINDINGS OF FACT

1. The Petitioner, School Board of Miami-Dade County (School Board), is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida.

2. The Respondent, Michael Durrant, was at all times material hereto, employed by the School Board (under a professional service contract),and assigned to North Miami Middle School, North Miami Senior High School, and other work locations.

3. During the 1996/97 school year, E. H. was a fourteen- year-old female student at North Miami Middle School. During

   that school year, E. H. was in the eighth grade and was an honors student. During that school year, the Respondent was one of her teachers. At the beginning of that school year, E. H. did not like the Respondent, but during the course of the school year, she became attracted to the Respondent.

4. On January 16, 1997, while E. H. was in the Respondent's classroom, the Respondent approached her seat to talk to her. During the course of their conversation, the Respondent put one of his arms around E. H. and asked her to give him a kiss. E. H. gave the Respondent a light kiss on the cheek. The Respondent then told E. H. that she should come back to his classroom after school. After school that same day,

   E. H. returned to the Respondent's classroom. When E. H. asked him what he wanted, the Respondent approached E. H. and gave her a "French" kiss, which involved inserting his tongue in E. H.'s mouth.

5. On January 23, 1999, E. H. again met the Respondent in his classroom after school. When E. H. arrived, two other students were also in his classroom. Eventually, the two other students left the classroom and E. H. and the Respondent were the only people in the classroom. Shortly thereafter, the Respondent gave E. H. a "French" kiss and began to fondle her vagina. The Respondent then inserted his penis in E. H.'s vagina and they engaged in sexual intercourse for a brief period

   of time. E. H. had not previously engaged in sexual intercourse and she began to bleed as a result of the sexual intercourse. Due to the bleeding, the sexual intercourse did not last very long. E. H. then cleaned herself up and went home.

6. From February 2, 1997, until April 9, 1997, the Respondent was assigned to work at the regional office. On April 9, 1999, the Respondent was returned back to his teaching position at North Miami Middle School. A few days later,6 the Respondent and E. H. planned a meeting. They met at a grocery store near North Miami Middle School on an early release day, and the Respondent then drove E. H. to his townhouse. At the townhouse, the Respondent and E. H. engaged in two episodes of sexual intercourse involving penile penetration of E. H.'s vagina.

7. On Monday, May 19, 1997, the Respondent took a day off from school and E. H. skipped school. The Respondent met E. H. near her home and drove her to the Respondent's townhouse. On this occasion, the Respondent and E. H. engaged in two episodes of sexual intercourse involving penile penetration of E. H.'s vagina. In addition, they engaged in two episodes of oral sexual activity; one episode involving the Respondent placing his mouth in contact with E. H.'s vagina, and the other episode

   involving E. H. placing her mouth in contact with the Respondent's penis.

8. During the summer of 1997, E. H. took some summer school classes at North Miami Senior High School. The Respondent was teaching at that school during the summer session. The Respondent and E. H. no longer continued their sexual relationship, but on the last day of summer school, they kissed each other.

9. Eventually, the sexual activity between the Respondent and E. H. was brought to the attention of the school authorities. The matter was investigated by school authorities and by two police departments. On November 5, 1997, the Respondent was arrested on three criminal charges: (1) unlawful sexual activity with a minor under sixteen years of age by an adult over twenty-four years of age; (2) sexual activity with a child in a custodial position; and (3) lewd and lascivious assault on a child.7

10. The news of the Respondent's arrest was widely published in local newspapers and on local television in the Miami-Dade area. News of the arrest resulted in a considerable amount of disruption at both North Miami Middle School and North Miami Senior High School. A number of students at both schools became aware of the fact that the Respondent had been arrested on charges related to sexual activity with a student. Some

    students became aware of the fact that E. H. was the student who had been sexually involved with the Respondent. A number of parents expressed concerns about the Respondent's conduct. The Respondent's effectiveness as a teacher has been seriously impaired.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.569, 120.57(1) and 231.36(b)(a)(2), Florida Statutes.

12. Pertinent to this case, Section 231.36(6)(a), Florida Statutes, provides:

    Any member of the instructional staff. . . [such as Respondent], may be suspended or dismissed at any time during the term of the contract for just cause as provided in paragraph (1)(a). . .

    
    

    Paragraph (1)(a) of the following section defines just cause as follows:

    . . . 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.

    
    

13. Rule 6B-4.009, Florida Administrative Code, defines "immorality," "misconduct in office," and "moral turpitude" as follows:

    1. 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.

       
       

    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, FAC, and the Principles of Professional Conduct for 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.

       
       

       * * *

       
       

       (6) Moral turpitude is a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.

       
       

14. Pertinent to the charge of "misconduct in office," Rule 6B-1-001, Florida Administrative Code, the Code of Ethics of the Education Profession in Florida, provides:

    (1) The educator values the worth and dignity of each person, the pursuit of truth, devotion to excellence. . . .

    
    

    * * *

    
    

    (3) Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents and of other members of the community, the

    educator strives to achieve and sustain the highest degree of ethical conduct.

    
    

15. Rule 6B-1.006, Florida Administrative Code, the Principles of Professional Conduct for the Education Profession in Florida, provides, in pertinent part:

    1. Obligation to the student requires that the individual:

       1. Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety.

          
          

          * * *

          
          

          1. Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

          2. Shall not intentionally violate or deny a student's legal rights.

          3. Shall not harass or discriminate against any student on the basis of . . . sex, age, . . . and shall make reasonable effort to assure that each student is protected from harassment or discrimination.

          4. Shall not exploit a relationship with a student for personal gain or advantage.

          
          

          * * *

          
          

    2. Obligation to the public requires that the individual:

    
    

    * * *

    
    

    (c) Shall not use institutional privileges for personal gain or advantage.

    
    

16. The Respondent's several acts of sexual activity with a student are, without doubt, "inconsistent with the standards of public conscience and good morals." Such conduct is also

    "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." Accordingly, such conduct constitutes "immorality" within the meaning of Rule 6B-4-009(2), Florida Administrative Code, and constitutes grounds for the termination of the Respondent's employment.

17. The Respondent's several acts of sexual activity with a student also violate numerous provisions of the Code of Ethics of the Education Profession and the Principles of Professional Conduct for the Education Profession adopted at Rules 6B-1.001 and 6B-1.006, Florida Administrative Code. Those violations are "so serious as to impair the individual's effectiveness in the school system."8 Accordingly, such conduct constitutes "misconduct in office," within the meaning of Rule 6B-4.009(3), Florida Administrative Code, and constitutes grounds for the termination of the Respondent's employment.

RECOMMENDATION

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

RECOMMENDED that a final order be entered which sustains Respondent's suspension without pay, and which dismisses him from employment with the School Board.

DONE AND ENTERED this 6th day of July, 1999, in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 1999.

ENDNOTES

1/ Respondent's Exhibit 1 was offered, objected to, and then withdrawn. Respondent's Exhibit 2 was received in evidence.

2/ See pages 336-37 of the transcript.

3/ The Respondent did not file a motion seeking an extension of the deadline for filing his proposed recommended order. The Respondent did not offer an explanation for the late submission of his Proposed Recommended Order.

4/ The motion to strike is denied.

5/ The motion to reopen the record is denied. Reasons for the denial include the fact that, in view of the disposition of other issues, it would serve no useful purpose to reopen the record.

6/ E. H. did not remember the exact date of the April episode, other than to note that it was on an early release day.

7/ At the time of the final hearing in this case, the trial in the criminal case had not yet taken place.

8/ Here, there was direct proof that Respondent's conduct adversely affected his effectiveness in the school system.

Moreover, such a conclusion may also be reasonably drawn in the absence of "specific evidence" of impairment of the teacher's "effectiveness as an employee," where, as here, the "personal conduct" in which the teacher engaged is of such nature that it "must have impaired [the teacher's] effectiveness." Summers v. School Board of Marion County, 666 So. 2d 175 (Fla. 5th DCA 1995); but see McNeill v. Pinellas County School Board, 678 So. 2d 476, 478 (Fla. 2d DCA 1996).

COPIES FURNISHED:

Madelyn P. Schere, Esquire Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Leslie A. Meek, Esquire United Teachers of Dade

2929 Southwest Third Avenue, Suite One Miami, Florida 33129

Roger C. Cuevas, Superintendent Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 403

Miami, Florida 33132

Tom Gallagher Commissioner of Education Department of Education

The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400

Michael H. Olenick, General Counsel Department of Education

The Capitol, Suite 1701 Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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.

Docket for Case No: 98-003949

Orders for Case No: 98-003949