STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. )

)

ISMAEL DELGADO, )

)

Respondent. )

Case No. 05-1786

)

RECOMMENDED ORDER

This case came before Administrative Law Judge John G. Van Laningham for final hearing on October 6 and 7, 2005, in Miami, Florida.

APPEARANCES

For Petitioner: Luis M. Garcia, Esquire

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 ISSUE

The issue in this case is whether a district school board is entitled to dismiss a teacher for just cause based principally upon the allegation that he failed to prevent or stop two students from engaging in oral sex in his classroom.

PRELIMINARY STATEMENT

At its regular meeting on May 18, 2005, Petitioner School Board of Miami-Dade County suspended Respondent Ismael Delgado without pay pending his dismissal as a member of the district's instructional staff. This action resulted from the allegation that on December 6, 2004, Mr. Delgado had failed to prevent or stop two students from engaging in oral sex in his classroom.

Having been notified in advance of Petitioner's likely decision, Mr. Delgado's legal counsel already had requested a formal hearing, by letter dated May 12, 2005. Thus, on May 19, 2005, the matter was referred to the Division of Administrative Hearings ("DOAH") for further proceedings. Thereafter, on

June 20, 2005, the School Board filed its Notice of Specific Charges.

At the final hearing, which took place on October 6 and 7, 2005, Petitioner called the following witnesses: Detective Lisa Rodriguez; Pamela Garman; Victor Lopez; Rosann Sidener; Aaron Roberts; La'Shan Coglin; Carl Smith; Lucy Iturrey; and four students, whose names are being kept confidential. With the undersigned's permission, Petitioner filed the deposition of Telicia McQueen after the hearing, and her testimony was made part of the evidentiary record. Petitioner's Exhibits 1 through

20 were received in evidence.1

Mr. Delgado testified on his own behalf, and he presented the testimony of Thomas Wright as well. In addition,

Mr. Delgado offered Respondent's Exhibits 1 through 3, and these were admitted.

The two-volume final hearing transcript was filed on January 17, 2006. Each party timely filed a Proposed Recommended Order before the established deadline, which was enlarged to February 3, 2006.

Unless otherwise indicated, citations to the Florida Statutes refer to the 2005 Florida Statutes.

FINDINGS OF FACT

1. The Miami-Dade County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System.

2. As of the final hearing, Respondent Ismael Delgado ("Delgado") had been employed as a teacher in the Miami-Dade County Public School System for approximately 12 years. At all times relevant to this case, Williams was assigned to Booker T. Washington Senior High School, where he taught students with disabilities.

3. The alleged events giving rise to this case allegedly occurred on December 6, 2004. The School Board alleges that on that date, during Delgado's fourth-period class, a female

   student named R. B. fellated a male student named D. B., while Delgado busied himself on the computer, paying no attention to the brazen carnality on display in his presence. The School Board charges that at about 11:15 a.m., a young man named

   K. M.——who was not a student of Delgado's——chanced to enter Delgado's locked classroom (somehow without attracting Delgado's attention) to check up on R. B. at precisely the moment she happened to be orally stimulating D. B.'s penis. K. M. was purportedly shocked to see this behavior——too shocked, evidently, to mention anything about it to Delgado, who allegedly remained glued to his computer, oblivious. K. M. later reported the alleged incident to another teacher, investigations ensued, and Delgado ended up being accused effectively of causing the students' sexual misconduct, for which the School Board now wants to fire him.

4. Delgado consistently has maintained——and testified at hearing——that nothing extraordinary occurred in his classroom on December 6, 2004. He claims that he neither saw nor heard R. B. and D. B. engage in any sexual activity; indeed, Delgado insists that such behavior could not possibly have taken place in his presence. The undersigned fact-finder believes Delgado's testimony in this regard, which is more credible and persuasive than the evidence to the contrary, and finds, on the record as a

   whole, that the evidence is insufficient to establish that R. B. and D. B. engaged in oral sex in Delgado's presence, as charged.

5. Because Delgado witnessed nothing of the sort alleged, it is difficult to make affirmative findings concerning what, if anything unusual, occurred in Delgado's classroom on December 6, 2004. Compounding this difficulty, the students who testified were poor witnesses.

6. The School Board called four purported eyewitnesses to the alleged sexual act: R. B. and D. B., the alleged participants; K. M., the student who serendipitously caught the two flagrante delicto; and A. S., another student in Delgado's class. Each one individually came across as an unreliable witness. None seemed to possess (or was able to articulate) a clear and precise memory of the remarkable alleged events, yet each recounted details that struck the undersigned as being implausible at best. Moreover, taken together, their stories are inconsistent and, in material respects, irreconcilable. In support of these general observations, the undersigned will add the following particular findings, to underscore the care with which the evidence has been weighed.

7. As mentioned, the students who testified gave conflicting accounts about what occurred. The points in conflict are not mere minor details, as the School Board argues, but rather involve material facts, such as when the alleged

   sexual act took place and what Delgado was doing at that time. The details are critical because it is not enough for the School Board to prove that R. B. and D. B. engaged in oral sex on December 6, 2004. In addition, the School Board alleged and must prove that the sex act took place in Delgado's classroom, while he was present; that Delgado knew or should have known what was going on; and that Delgado failed to take reasonable steps to prevent or stop the students from having oral sex.

8. The following table presents a summary of the eyewitness testimony regarding six basic questions raised at hearing:

   	R. B.	D. B.	A. S.	K. M.
   When did act occur?	In the morning, right before, and continuing after, the bell rang.	In the middle of class. It was at the end of class, when the bell rings. Class was over.	Before lunch; the bell rang at 11:50 a.m., so between 11 a.m. and 11:30 a.m., but witness is unsure.	Before the bell rang. Between 11 a.m. and 11:15 a.m. Before 12:15 p.m.
   		K. M. came after the class was over.
   Where did	At R. B.'s desk, in the	At the front of	At the	At a desk.
   act occur?	front of the class.	the room.	teacher's desk
   			in the back.
   			(A. S. had to
   			turn around to
   			see.)
   Where was Delgado?	Before the bell rang, at his desk, in the back of the room. After the bell, he was in hallway.	At the board, on one side of the classroom, facing away from the students.	At the board.	Behind the computer.
   What was Delgado doing?	Before the bell, looking at "perfume" on the computer; he didn't see the act. After the bell, Delgado was in the hallway, watching students.	Writing on the board with a marker; he didn't know that students were having sex. Not looking at the computer.	Writing a science problem (or something) on the board. He didn't see what was happening.	Busy looking at the computer.
   		He didn't see any sexual activities.

   	R. B.	D. B.	A. S.	K. M.
   What did other students do?		No one said anything. Students were standing up to shield R. B. and D. B., so Delgado couldn't see the act.		Students were not standing up to block Delgado's view. They were playing cards or something.
   Were other	Yes, K. W. & S. J.	Yes. T. H. did	Doesn't	Didn't see that.
   students	Their pants were down	something	remember;
   having sex	at their ankles. They	(unclear).	didn't see
   too?	stood by the wall,	Also, K. W.	that.
   	having regular sex.	"jacked" S. J.
   	Students told hem to	while they were
   	stop. Delgado couldn’t	sitting down at
   	see the couple, but	one of the
   	heard the students and	teacher's desks.
   	told S. to get off K.	No one said
   	They ignored Delgado and continued.	anything.

   
   

9. Although many discrepancies are obvious, focus on the question of Delgado's whereabouts. Two students placed Delgado behind his computer at the relevant moment. Two others recalled that he was writing on the board. The School Board insists that Delgado was engrossed in his computer; it became invested in this theory during the investigative phase when an examination of the cookies on the hard drive of Delgado's classroom computer turned up electronic evidence that the Yahoo website might have been opened at 11:37 a.m.2 If Delgado were at the computer, however, then both D. B. and A. S. gave unreliable testimony on this significant point.3 Conversely, if D. B. and A. S. were believed, then the reliability of the accounts of R. B. and

   K. M. would be brought into question. The inconsistencies ultimately undermine the credibility of each of the student witnesses.

10. Apart from the testimonial inconsistencies, none of the students, considered individually, impressed the undersigned as being a trustworthy witness. R. B.'s testimony was vague and childlike, offering little on which the fact-finder could get any traction. Her story, in a nutshell, is that D. B. and some other students goaded her into performing oral sex on D. B., to which she reluctantly consented in the vain hope that compliance would put an end to persistent prodding. R. B. also testified that while she was sucking on D. B.'s penis, two other students (S. J. and K. W., a male and female) were standing by the wall, their pants down at their ankles, having regular sex. This latter is beyond belief and suggests to the undersigned that

    R. B. has difficulty distinguishing fantasy from fact. That being the case, the undersigned considers her testimony unreliable and has discounted it accordingly.

11. D. B.'s version of the alleged event differs from

    
    

    R. B.'s in one immediately apparent respect: as D. B. tells it, he was practically the victim, R. B. the aggressor who pulled down his pants and commenced sucking on his penis against his wishes. This is unlikely——almost absurd, the undersigned thinks——but D. B.'s testimony in this regard is notable insofar as it exposes a desire (also evident, incidentally, in R. B.'s testimony) to shift the blame——for whatever happened——to someone else. Like R. B., D. B. testified that other students also

    engaged in sexual activity that morning in Delgado's classroom. In particular, D. B. asserted that K. W. had "jacked" S. J. (i.e. masturbated his penis) while the couple had been sitting down at one of the teacher's desks. The undersigned believes that D. B.'s testimony about K. W. and S. J. is most likely a fabrication.4 Having given testimony that is probably untrue,

    D. B.'s credibility is suspect and his testimony as a whole must be discounted.

12. A. S. testified that on the morning in question, he turned around and saw R. B. and D. B. at the teacher's desk in the back of room, R. B.'s mouth on D. B.'s penis. Apparently witnessing two classmates openly engaging in a sexual act was not a remarkable event for A. S., for he claims to have looked away and said nothing to the teacher (who was, according to

    A. S., writing a problem on the board at the time). The undersigned considers this to be implausible. He can scarcely believe that a student in A. S.'s supposed position would react in the blasé manner that A. S. described. The testimony as a whole is not credible.

13. K. M.'s testimony is full of improbabilities. To begin, the undersigned is skeptical that K. M. just happened to be running an errand for his teacher in the middle of fourth period, allowing him to detour to Delgado's classroom to check up on R. B.——whom, he said, he treated "like a sister"——at the

    very moment she was performing fellatio on D. B. This is too contrived to be believable. Second, the undersigned does not believe that K. M. could have entered Delgado's classroom—— which, it is undisputed, was locked while class was in session—— without Delgado knowing about it, which is what K. M. claims occurred. Third, the undersigned rejects as incredible K. M.'s testimony that he stood watching R. B. suck on D. B.'s penis for a considerable period of time (several minutes), unobserved by Delgado, without saying anything to the teacher. Fourth, the undersigned disbelieves K. M.'s testimony that he slipped out of the secure classroom unnoticed by Delgado. Finally, K. M. testified at hearing with some certainty that he had reported the incident the next day, after carefully considering whether to do so. Yet, the contemporaneous written record reflects that he reported the matter within hours after its alleged occurrence. Standing alone, this latter would be a relatively minor discrepancy. But viewed in the light of other facially improbable details, this discrepancy is more troubling. All things considered, the undersigned harbors genuine doubt regarding K. M.'s reliability as a witness.

14. The School Board offered the unsworn written statements of eight students, including the four who testified at hearing. These are hearsay and hence can be used, if at all, only to supplement or explain other admissible evidence.5 To

    give a flavor of the nature and quality of the evidence presented in support of the charges against Delgado, the undersigned will reproduce the statements of the non-testifying students below.6

15. S. J.7 gave a statement dated December 8, 2004, wherein he recounted:8

    it happen when [R. B.] was siting between [D. B.] legs and when I went to get my paper from the printer and I turn around I seen [R. B.] sucking [D. B.] penis I was not the only one seen them [K. M.] seen them also this happen 2 minutes before the bell rang that how the other person which is [K. M.] seen them when he walk into the room and seen them thats how everything started. I was not involved with them.

    
    

    1. J. signed another statement, dated December 14, 2004, in which he wrote:

       When the problem happen the teacher was right in front of them but he told her to stop but she wouldnt. He told her plenty of times to go down stairs to see Ms. Thomas but she wouldnt. but when they were doing it in the corner in he see them crowed around he gets up to see what's going on thats the only time he gets up to see. the problem doesn't occur now scense she not in the class anymore.

       
       

16. K. W.'s9 December 7, 2004, statement provides as follows:

    when she came in she started to play with [nickname deleted] and he said to leave him and still cap playing with and he got up side on the other side of the classroom and teacher her to stop she cap on playing with

    him and I when to sleep after that I does not know that they had sex or not.

    
    

17. T. H. gave two written statements. The first, dated December 7, 2004, states:

    I was seating down on the char in I sha [D. B.] in [R. B.] [R. B.] was sukin [D. B.] penis two times.

    
    

    1. H.'s second statement is dated December 10, 2004. Therein he

    
    

    wrote:

    
    

    Mr. Dilgado trys to stop hus from having six bet we keep on going in he call ower house bet we cap on going.

    
    

18. N. H. provided two statements, neither of which is dated. In one he wrote:

    [D. B.] in [R. B.] was having sex in the classroom. I was go to the computer lab.

    
    

    In the other, N. H. added:

    
    

    I feel I Mr. Delgado did not see [R. B.] in [D. B.] have sex in the class.

    
    

19. These written statements do not explain or supplement the admissible evidence; to the contrary, if accepted they would create additional inconsistencies. Thus, the undersigned has not based any findings of fact on their contents. The undersigned has taken note, however, that out of 15-17 students in Delgado's fourth-period class, fewer than half (seven, to be exact) testified at hearing and/or signed a written statement about the alleged incident that was produced at hearing. This

    causes the undersigned to wonder what, if anything, the other 8-

    
    

    10 students in the class witnessed on December 6, 2004.

    
    

20. Given the paucity of persuasive evidence, the undersigned is better able to find what was not proved to have happened, than to find what likely happened in Delgado's classroom on December 6, 2004, if anything out of the ordinary. To repeat the key finding above, the School Board failed to prove that R. B. and D. B. engaged in oral sex in Delgado's classroom while he was present.

21. While these students probably did not engage in oral sex, the undersigned believes that there is a slightly better than even chance, and thus he finds, that D. B. briefly exposed his penis in Delgado's classroom after the bell had rung and class had been dismissed, when Delgado was outside of the room monitoring the hallway, which is what he was supposed to be doing at the time.10 The undersigned thinks, based on the evidence presented, that it is reasonably possible (the probability being between, roughly, 25 percent and 35 percent) that R. B. might have placed her mouth on D. B.'s penis, but he cannot make this finding because he is not persuaded that this likely occurred. What is likely, and what the undersigned finds, is that D. B.'s exhibition was a type of taunting, teasing, or sexually harassing behavior directed at R. B.

22. It is found that K. M. likely did enter Delgado's classroom, not during the class period as K. M. claimed, but after fourth period had ended, when Delgado was properly in the hallway and the door to his room was unlocked. It is found that, more likely than not, K. M. then learned about D. B.'s harassment of R. B. It is possible that the incident was already being exaggerated in discussions about what had happened. At any rate, by the time K. M. reported the incident, the facts had become distorted.

23. There is no persuasive evidence that Delgado saw or knew about, or reasonably should have seen or known about,

    D. B.'s misbehavior, which occurred while Delgado was properly monitoring the hallway between classes. There is no persuasive evidence that Delgado reasonably should have foreseen D. B.'s misconduct or that he reasonably could have stopped or prevented it.11 There is no persuasive evidence that Delgado was in any way the cause of, or responsible for, D. B.'s bad behavior.

24. In sum, the undersigned determines as a matter of ultimate fact that, to the extent anything unusual occurred on December 6, 2004, in Delgado's classroom, it was student misbehavior that took place outside the teacher's presence and beyond the reach of his senses. Delgado neither knew nor should have known that anything untoward was occurring. The student or

    students who engaged in the misbehavior should have been punished, not the teacher.

    CONCLUSIONS OF LAW

    
    

25. DOAH has personal and subject matter jurisdiction in this proceeding pursuant to Sections 1012.33(6)(a)2., 120.569, and 120.57(1), Florida Statutes.

26. In an administrative proceeding to suspend or dismiss a teacher, the school board, as the charging party, bears the burden of proving, by a preponderance of the evidence, each element of the charged offense(s). See McNeill v. Pinellas

    County School Bd., 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Sublett v. Sumter County School Bd., 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995); MacMillan v. Nassau County School Bd., 629 So. 2d

    226 (Fla. 1st DCA 1993).

    
    

27. Delgado's guilt or innocence is a question of ultimate fact to be decided in the context of each alleged violation. McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995).

28. In its Notice of Specific Charges served on June 20, 2005, the School Board advanced four theories for dismissing Delgado: Misconduct in Office (Counts I); Gross Insubordination or Willful Neglect of Duty (Count II); Violation of School Board Rules (Count III); and Conduct Unbecoming a School Board Employee (Count IV).12

29. Each of the School Board's several counts depends on the alleged facts that, on December 6, 2004, two students engaged in oral sex in Delgado's classroom, and that Delgado, though present, was inattentive and failed properly to respond to the situation.13 The School Board, however, failed to prove these essential allegations. Thus, all of the charges against Delgado necessarily fail, as a matter of fact. Due to this dispositive failure of proof, it is not necessary to render additional conclusions of law.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order: (a) exonerating Delgado of all charges brought against him in this proceeding; (b) providing that Delgado be immediately reinstated to the position from which he was suspended without pay; and (c) awarding Delgado back salary, plus benefits, that accrued during the suspension period, together with interest thereon at the statutory rate.

DONE AND ENTERED this 2nd day of March, 2006, in Tallahassee, Leon County, Florida.

S

JOHN G. VAN LANINGHAM

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 2nd day of March, 2006.

ENDNOTES

1/ There was, at hearing, considerable controversy over the admissibility of a videotape of the forensic interview of R. B., the female student who allegedly performed fellatio on a male classmate. The School Board argues that this videotape——which is part of Petitioner's Exhibit 9——is admissible under the hearsay exception for the statements of child victims. See § 90.803(23), Fla. Stat. This raises an interesting evidentiary question, which the undersigned declines to resolve because the videotape——which the undersigned has viewed——is cumulative evidence. R. B.'s out-of-court statements, as captured on the videotape, are consistent with, and add nothing of substance to, her sworn testimony at hearing. Thus, whether the videotape is considered independent, substantive evidence pursuant to

§ 90.803(23), Fla. Stat., or, alternatively, corroborative hearsay under § 120.57(1)(c), Fla. Stat., makes no difference: the findings and conclusions herein are the same, either way.

2/ The testimony about this cookie and its import was unimpressive. The bottom line is that the cookie's presence in Delgado's machine shows, at most, that his computer was on and a

browser open at 11:37 a.m.; it does not establish that Delgado was actually viewing the Internet at that time, much less prove that he was so engaged in surfing the Web that he could ignore two students having oral sex in his classroom.

3/ Delgado's location at the time of the alleged sex act is clearly a material fact. The School Board naturally urges that Delgado was at the computer as opposed to the board because the resulting image is that of an indifferent, neglectful teacher who was not even instructing his students, let alone controlling the classroom. If, however, he were busy writing problems on the board, as both D. B. and A. S. testified, then Delgado at least would have been engaged in a proper pedagogic activity, raising the question whether he reasonably could have missed the alleged sex act, assuming the latter occurred. And if Delgado were in the hallway (as R. B. suggested) when the alleged sex act took place, then he reasonably might not have seen the alleged sex act, assuming it occurred——a situation which would constitute an exculpatory alternative to the School Board's theory.

4/ This testimony——insinuating everyone was doing it——strikes the undersigned as tactical blame shifting.

5/ See § 120.57(1)(c), Fla. Stat.

6/ The written statements of the students who testified are cumulative evidence.

7/ This is the same S. J. who, according to R. B. and D. B., either had regular sex with, or was masturbated by, K. W. on the morning in question.

8/ The spelling and grammar are poor throughout the students' written statements. Rather than attempt to clean them up or point out each mistake with a "sic," the undersigned simply has reproduced the contents of the students' respective statements as they appear in the record.

9/ K. W. is the student who supposedly engaged in some sort of sexual activity with S. J. in Delgado's classroom on December 6, 2004, according to R. B. and D. B.

10/ D. B.'s penis, it is found, was exposed for a matter of seconds at most. To be very clear, moreover, the evidence persuades the undersigned that D. B. did not ejaculate.

11/ At some point before December 6, 2004, Delgado had disciplined R. B. for "grabbing" the boys, sending her to the office, where nothing was done about her misbehavior. The evidence is sketchy as to what R. B. actually did to warrant the referral, but it is reasonable to infer that her misconduct entailed acting out in a sexually inappropriate way. It is not reasonable to infer, however, that her previous misconduct signaled a propensity to engage in oral sex in class, which deviant behavior would be not only different in degree but also in kind. Further, the fact that Delgado actively disciplined R.

B. when she merely "grabbed" the boys suggests that he would not passively have allowed her to perform fellatio on a student in his classroom.

12/ The School Board based some of its charges, in part, on the allegation that Delgado had brought "false and frivolous complaints" against school district personnel. The School Board abandoned this allegation at hearing, however, and thus no findings or conclusions pertaining to the "false claims" theory have been made in this Recommended Order.

13/ The School Board also contends that Delgado failed to attend some training sessions as directed by the principal of a school where he had worked in the year 2000 (not Booker T. Washington), and that this alleged failure constituted gross insubordination. The evidence, however, does not establish that Delgado constantly and willfully disobeyed reasonable directives. See Fla. Admin. Code. R. 6B-4.009(4). Consequently, this particular allegation does not merit further consideration.

COPIES FURNISHED:

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

Luis M. Garcia, Esquire

Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Daniel J. Woodring, General Counsel Department of Education

325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400

John L. Winn, Commissioner Department of Education Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

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

1450 Northeast Second Avenue, No. 912

Miami, Florida 33132-1394

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: 05-001786

Orders for Case No: 05-001786