STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. )

)

ORLANDO CHAVEZ, )

)

Respondent. )

Case No. 05-0011

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on March 9, 2005, by means of a video teleconference link between Tallahassee and Miami, Florida, before Administrative Law Judge Michael M. Parrish, of the Division of Administrative Hearings. The parties were represented at the hearing as

follows:

APPEARANCES

For Petitioner: Madelyn P. Schere, Esquire

Alex Diaz, Certified Legal Intern Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684

STATEMENT OF THE ISSUES

The issues in this case are whether the Respondent committed the violations alleged in the Notice of Specific Charges and, if so, a determination of the appropriate penalty for such violations.

PRELIMINARY STATEMENT

This case began on December 15, 2004, when the School Board of Miami-Dade County, Florida (Board or School Board), took action to suspend the Respondent Orlando Chavez without pay for thirty workdays. The Respondent filed a request for hearing pursuant to Section 1012.33(6)(a), Florida Statutes, which was received by the Board on January 3, 2005. The case was promptly referred to the Division of Administrative Hearings on

January 4, 2005; and on January 11, 2005, the Board furnished its Notice of Specific Charges to the Respondent. These charges alleged that the Respondent was guilty of misconduct in office, as that term is defined by Florida Administrative Code Rule 6B-

1. and that the Respondent had violated School Board Rule 6Gx13-4A-1.21.

   At the hearing, the Board presented the testimony of the following witnesses: Orlando Chavez, the Respondent; Reinaldo Benitez, District Director in the Board's Office of Professional Standards (OPS); Monte Benjamin, sales representative for C & C International, a Dell Computer (Dell) partner and School Board

   vendor; Pedro Garcia, a computer technician; Detective Rafael Gomez, a School Board Police Officer; Alberto Iber, Assistant Principal; and Lorenzo Ladaga, Principal. The Board’s Exhibits 1, 2, 4 and 6 through 10 were admitted into evidence.

   The Respondent testified on his own behalf, but did not call any additional witnesses. The Respondent did not offer any exhibits.

   Neither party ordered a transcript of the final hearing.

   
   

   Both parties filed timely proposed recommended orders. The parties' proposals have been carefully considered during the preparation of this Recommended Order.

   FINDINGS OF FACT

   
   

   Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made:

   1. The School Board is responsible for the operation of the public schools within the school district of Miami-Dade County, Florida.

   2. At all times material to the facts of this case, the Respondent was a teacher employed by the School Board and was assigned to a public school within the district, Hialeah Senior High School (Hialeah High).

   3. The Respondent has been a teacher employed by the School Board for years. Respondent possesses a professional

      service contract pursuant to Section 1012.33, Florida Statutes. The Respondent is a business education teacher. Prior to the incident giving rise to this case, the Respondent had not been the subject of any disciplinary action by his employer.

   4. Prior to teaching at Hialeah High, the Respondent had been teaching adult students at another school. The adult students were highly motivated to learn and provided little in the way of classroom discipline problems. In December of 2003, the Respondent was assigned to teach English for Speakers of Other Languages (ESOL) classes to high school age students at Hialeah High. At Hialeah High the Respondent's classes were populated primarily by students who had very limited proficiency in the English language and who, for the most part, had very limited experience in an American classroom setting. Many of the students had only recently arrived from a variety of Spanish-speaking countries, including Mexico and many Central and South American countries. These students, both because of their limited English language skills and their limited exposure to an American classroom, presented more than the usual discipline challenges. At the time of the incident giving rise to this case, the Respondent had been teaching the ESOL classes at Hialeah High for only a few weeks.

   5. A frequently recurring problem in the Respondent's classroom was that some of the students would use the classroom

      computers to play music CDs and would interrupt the rest of the class by turning up the volume through the external speakers on the computers. This problem apparently came to a head on January 27, 2004, when an honor student asked the Respondent if it was necessary for the class to be interrupted by the students who were playing music CDs on the classroom computers.

   6. After school on January 27, 2004, the Respondent decided to solve the music problem by cutting the audio wires that ran from the monitor to the external speakers on each of the classroom computers. The Respondent chose to cut the audio wires because the wires were hardwired into the computer monitors and could not readily be unplugged. He cut the speaker wires on at least 25 of the computers in his classroom. The Respondent's conduct in this regard was not for the purpose of damaging school equipment, but was a misguided and poorly thought out effort to prevent further music playing by the misbehaving students.

   7. The cutting of the speaker wires was an inappropriate way in which to address student misconduct in the classroom. More appropriate ways to have prevented such misconduct or to have addressed such misconduct after it occurred would have been to take such measures as implementing and enforcing classroom rules when he first began teaching the ESOL classes, making disciplinary referrals, seeking assistance from the school

      administration, or assigning misbehaving students to indoor suspension.

   8. Although the computers are operable, they have no external speakers and, therefore, cannot make loud sounds. The inability to make loud sounds compromises the extent to which the computers can be used for certain applications.

   9. The Respondent's acts of cutting the speaker wires were intentional acts that damaged the computers. Damage to the computers caused by intentional acts is not covered by the warranties on the computers.

   10. A representative of the Dell computer company examined the damage to the computers and stated that Dell did not make repairs to that type of damage. The best solution the Dell representative could propose was to replace all of the monitors with cut speaker wires with new monitors that had new external speakers attached. The Dell representative stated that such replacement would cost $129.00 per computer.

   11. The damage caused by the Respondent's cutting of the computer wires can be readily and inexpensively repaired. The parts necessary to repair the computers cost about $2.00 for each computer. The time necessary to repair the damaged computers is approximately five minutes per computer.

   12. The Respondent has already purchased with his own funds the parts necessary to repair all of the computers in his

       classroom, and he has delivered those parts to the principal at Hialeah High. The Respondent volunteered on several occasions to perform the work necessary to repair the computers he damaged. The Respondent's offers to perform the repair work were declined. For reasons not adequately explained in the record in this case, the computer technicians at Hialeah High have not yet repaired the subject computers. It would take approximately two hours of technician time to repair all of the computers in the Respondent's classroom. The damage to the computers caused by the Respondent could have been repaired within a very few days of the date on which the damage occurred.

   13. When asked about the damage to the computer wires, the Respondent readily admitted what he had done and readily acknowledged that it was a foolish and inappropriate thing for him to have done. He did not hesitate to accept responsibility for the consequences of his conduct and, as mentioned above, bought the necessary parts and offered to do the necessary repair work.

   14. Respondent’s intentional destruction of School Board property failed to reflect credit upon himself and on the school system, and showed a lack of professional judgment.

   15. On September 21, 2004, the Respondent’s principal and the assistant superintendent who had authority over Hialeah High recommended a 30-work day suspension without pay. The School

       Board, at its regularly scheduled meeting of December 15, 2004, took action to suspend the Respondent without pay for 30

       workdays.

       
       

       CONCLUSIONS OF LAW

       
       

   16. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case.

   17. Section 1012.33, Florida Statutes, provides, in pertinent part:

       (1)(a) Each person employed as a member of the instructional staff in any district school system shall be properly certified pursuant to s. 1012.56 or s. 1012.57 or employed pursuant to s. 1012.39 and shall be entitled to and shall receive a written contract as specified in this section. 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, the following instances, as defined by rule of the State of Board of Education: 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 for just cause as provided in paragraph (1)(a). The district school board must notify the employee in writing whenever

       charges are made against the employee and may suspend such person without pay. . . .

       
       

   18. The criteria for suspension and dismissal in Florida Administrative Code Rule 6B-4.009 include the following:

       The basis for charges upon which dismissal action against instructional personnel may be pursued are set forth in Section 231.36, Florida Statutes [now recodified at § 1012.33, Fla. Stat.]. The basis for each of such charges is hereby defined:

       
       

       * * *

       
       

       (3) Misconduct in office is defined as 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.

       
       

   19. Pertinent provisions of the Code of Ethics of the Education Profession in Florida included in Florida Administrative Code Rule 6B-1.001 read as follows:

       1. The educator’s primary professional concern will always be for the student and for the development of the student’s potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity.

          
          

       2. 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 (emphasis added).

   20. Florida Administrative Code Rule 6B-1.006 contains the Principles of Professional Conduct for the Education Profession in Florida, which read as follows, in pertinent part:

       1. Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator’s certificate, or the other penalties as provided by law.

       2. 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 [emphasis added].

             
             

   21. School Board Rule 6Gx13-4A-1.21 provides, in pertinent

part:

RESPONSIBILITIES AND DUTIES

1. Employee conduct

   All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-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.

   
   

   1. It appears rather obvious that, by cutting the speaker wires on at least 25 computers, the Respondent has committed the violations charged in the Notice of Specific Charges. It is equally obvious that such violations warrant some form of disciplinary action. In cases of this nature, School Boards have a somewhat broad range of discretion in determining what disciplinary action should be imposed. In the exercise of that

      discretion, School Boards should keep in mind some sense of proportionality; i.e., in determining the seriousness of the punishment to be imposed, the School Boards should keep in mind the seriousness of the violation.

   2. Foolish and uncalled for as it was, the Respondent's conduct at issue here did not cause any serious harm and did not result in any serious consequences. Although it is true that the computers in the Respondent's classroom have lacked functioning external speakers for more than a year, the lengthy delay in repairing the computers was not a natural consequence of the Respondent's conduct. Rather, the computers in question could have been, and should have been, repaired within a matter of days following the event. During the course of the investigations into this matter, it appears that School Board administrators were of the view that they were dealing with a malicious destructive act that resulted in more than four thousand dollars worth of damage to school property. In reality, what we have here is a foolish act born of frustration that caused only minor damage to the computers, damage that could have been promptly repaired with a very small expenditure of money and effort.

   3. Upon consideration of all of the foregoing, the undersigned is of the view that a penalty proportionate to the severity of the Respondent's violations is a one-week suspension

without pay and a requirement that the Respondent pay for the repairs to the computers. (He has already paid for the parts, but should also be required to pay the reasonable cost of the computer technician's labor to repair the computers.)

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED that a final order be issued in this case suspending the Respondent without pay for one week and requiring the Respondent to pay for the cost of the repairs made necessary by his foolish conduct.

DONE AND ENTERED this 12th day of April, 2005, in Tallahassee, Leon County, Florida.

S

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 12th day of April, 2005.

COPIES FURNISHED:

Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684

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

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 912

Miami, Florida 33132

Honorable John Winn Commissioner of Education Department of Education The Capitol, Plaza Level 08

Tallahassee, Florida 32399-0400

Daniel Woodring, 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: 05-000011

Orders for Case No: 05-000011