STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MIAMI-DADE COUNTY SCHOOL BOARD, )
)
Petitioner, )
)
vs. ) Case No. 06-1208
)
ABNER REYES, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was conducted in this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes,1 before Stuart M. Lerner, a duly-designated administrative law judge of the Division of Administrative Hearings (DOAH), on December 21, 2006, by video teleconference at sites in Miami and
Tallahassee, Florida.
APPEARANCES
For Petitioner: Jean Marie Middleton, Esquire
Miami-Dade County School Board
1450 Northeast Second Avenue, Suite 400
Miami, Florida 33132
For Respondent: Lynn L. Audie, Esquire
Hermelee & Geffin, LLC
101 Northeast Third Avenue, Suite 1110 Fort Lauderdale, Florida 33301
STATEMENT OF THE ISSUE
Whether Respondent committed the violations alleged in the Notice of Specific Charges and, if so, what disciplinary action should be taken against him.
PRELIMINARY STATEMENT
On March 15, 2006, the Miami-Dade County School Board (School Board) took action to suspend Respondent from his teaching position and initiate dismissal proceedings against him. By letter dated March 30, 2006, from his attorney, Respondent "request[ed] . . . a hearing before an administrative law judge" on the matter. Respondent's hearing request was referred to DOAH on April 7, 2006.
On April 20, 2006, the School Board filed a Notice of Specific Charges (Notice). The Notice contained the following
Statement of Facts:
Statement of Facts
The School Board has employed Reyes since August 2000.
The School Board originally employed Reyes as a Driver Education Teacher.
He was assigned to Miami Lakes Educational Center until his suspension without pay.
Reyes admitted that he paid for and received transcripts for college credit from Eastern Oklahoma State College and submitted those transcripts to the District when he
knew that he had not completed any coursework to earn the college credits.
Count I of the Notice alleged that "Reyes's admission that he accepted and reported college credits that were not earned through academic effort does not reflect credit upon himself or the community and violates School Board Rule 6Gx13-4A-1.21." Count II of the Notice alleged that "Reyes has demonstrated a lack of good moral character by admitting he accepted college credit[s] and reported them without engaging in any academic effort" and that therefore his "actions violate [S]ection 1012.32, Florida Statutes." Count III of the Notice alleged that "Reyes's actions constitute a violation of the School Board Rule 6Gx13-[]1.213, as well as Rule 6B-1.001 and Rule 6B-1.006, Florida Administrative Code," and it further alleged that these violations "constitute[] just cause for termination." Count IV of the Notice alleged that "Reyes's violation of the code of ethics [referenced in Count III of the Notice] constitutes misconduct in office and constitutes just cause for termination."
The final hearing on the foregoing charges was held, as noted above, on December 21, 2006.2 Six witnesses testified at the hearing: Detective Michael Alexander; Charlene Burks; Respondent; David Reams, Ph.D.; James Parker; and Lucy Iturrey. In addition, 19 exhibits (Petitioner's Exhibits 1, 3 through 7,
and 10 through 15, and 17 through 21, and Respondent's Exhibits
1 and 23) were offered and received into evidence. At the close of the evidentiary portion of the hearing on December 21, 2006, the undersigned established a deadline (30 days from the date of the filing of the hearing transcript with DOAH) for the filing of proposed recommended orders.
The Transcript of the final hearing (consisting of two volumes) was filed with DOAH on January 5, 2007.
The School Board and Respondent both timely filed their Proposed Recommended Orders on February 5, 2007.
FINDINGS OF FACT
Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:
The School Board is responsible for the operation, control and supervision of all public schools (grades K through
12) in Miami-Dade County, Florida (including, among others, Miami Palmetto Senior High School (Palmetto) and the Miami Lakes Education Center (MLEC)) and for otherwise providing public instruction to school-aged children in the county.
At all times material to the instant case, Palmetto was the site from where William McCoogle, Ph.D., a School Board instructional employee, operated his own continuing education enterprise, Move on Towards Education and Training (M.O.T.E.T.),
which offered courses, including driver education courses, for which teachers could receive college credit.
MLEC opened in August 2000. It offers, among other things, classroom instruction in driver education, but, unlike Palmetto, it does not have a driving range (for practical instruction in driver education).
James Parker is now, and has been for approximately the past three years, the principal of MLEC.
From August 2000 until the end of the summer of 2006, James Willenborg was the "head" of the "driver's ed/health and physical education department" at MLEC, responsible for "lead[ing]" and "mentor[ing]" the teachers in the department. As part of his duties, he fielded questions from these teachers regarding a variety of matters, including certification/ endorsement requirements. When a question arose concerning driver education that he needed help answering, he consulted with the School Board's supervisor of driver education.
Mr. Willenborg was certified in physical education (grades six through 12) and middle school mathematics. He did not have an endorsement in driver education.
From 1996 until 2003, David Reams, Ph.D., was the School Board's supervisor of driver education. Among Dr. Reams' responsibilities as the supervisor of driver education was to make sure that the School Board's driver education teachers had
a driver education endorsement or received an appropriate waiver of the endorsement requirement.
Respondent graduated from Florida International University in 1992 with a Bachelor of Science degree in physical education (grades six through 12). In 2001, he received a Masters of Arts degree in religion from Trinity International University.
Respondent has been employed by the School Board as a teacher since August 2000, when he was hired to teach the "theory [or] academic portion" of driver education at MLEC.
Respondent remained at MLEC until his suspension, teaching driver education, as well as serving as the school's activities director and as a reading teacher. He was a dedicated, resourceful, and effective member of the school's instructional staff.
As a School Board employee, Respondent is expected to conduct himself in accordance with School Board rules, including School Board Rules 6Gx13-4A-1.21 and 6Gx13-1.213.
At all times material to the instant case, School Board Rule 6Gx13-4A-1.21I has provided as follows:
Permanent Personnel RESPONSIBILITIES AND DUTIES
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, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system.
Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited.
At all times material to the instant case, School Board Rule 6Gx13-4A-1.213 has provided, in pertinent part, as follows:
Permanent Personnel
CODE OF ETHICS
INTRODUCCTION
All . . . teachers . . ., because of their dual roles as public servants and educators are to be bound by the following Code of Ethics. Adherence to the Code of Ethics will create an environment of honesty and integrity and will aid in achieving the common mission of providing a safe and high quality education to all Miami-Dade County Public School students.
As stated in the Code of Ethics of the Education Profession in Florida (State Board of Education Rule 6B-1.001):
The educator values . . . the pursuit of truth . . . .
. . . . The educator . . . will seek to exercise the best professional judgment and integrity.
Aware of the importance of maintaining the respect and confidence of one's
colleagues, students, parents, and other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.
* * *
APPLICATION
This Code of Ethics applies to all . . . teachers . . . .
Employees are subject to various other laws, rules, and regulations, including but not limited to "The Code of Ethics for the Education Profession in Florida and the Principles of Professional Conduct of the Education Profession in Florida," Chapter 6B-1.001 and 1.006, F.A.C., . . . which are incorporated herein by reference and this Code of Ethics should be viewed as additive to these laws, rules and regulations. . . .
FUNDAMENTAL PRINCIPLES
The fundamental principles upon which this Code of Ethics is predicated are as follows:
* * *
Honesty – Dealing truthfully with people, being sincere, not deceiving them nor stealing from them, not cheating nor lying.
Integrity – Standing up for your beliefs about what is right and what is wrong and resisting social pressure to do wrong.
* * *
Responsibility – Thinking before you act and being accountable for your
actions . . . .
Each employee agrees and pledges:
To abide by this Code of Ethics, making the well-being of the students and the honest performance of professional duties core guiding principles.
To obey local, state and national laws, codes and regulations.
* * *
5. To take responsibility and be accountable for his or her actions.
* * *
As an instructional employee of the School Board, Respondent is a member of a collective bargaining unit represented by the United Teachers of Dade (UTD) and covered by a collective bargaining agreement between the School Board and UTD (UTD Contract).
Article V of the UTD Contract addresses the subject of "[e]mployer [r]ights."
Section 1 of Article V provides, in part, that the School Board has the exclusive right to suspend, dismiss or terminate bargaining unit employees "for just cause."
Article XXI of the UTD Contract addresses the subject of "[e]mployee [r]ights and [d]ue [p]rocess."
Section 1A of Article XXI provides, in part, as follows:
Conferences-for-the-Record- Disciplinary Action and Reprimand
The Board and Union recognize the principle of progressive discipline. The parties agree that disciplinary action may be consistent with the concept of progressive discipline when the Board deems it appropriate, and that the degree of discipline shall be reasonably related to the seriousness of the offense.
1. Any employee summoned to the office of a principal or immediate supervisor, where there exists no supervisor, ACCESS Superintendent, or the Senior Executive Director for Professional Standards, or their designees for a Conference-for-the- Record which may lead to disciplinary action or reprimand, shall have the right to request Union representation and shall be informed of this right. If Union representation is provided, the employee shall have the right to be accompanied at the Conference-for-the-Record by up to two representatives of the Union and shall be informed of this right.
* * *
A Conference-for-the-Record which may lead to disciplinary action or reprimand not held in accordance with these conditions, shall not be considered a part of the employee's personnel file of record, and neither the fact of the conference nor any statements made at the conference may be used in any subsequent proceedings or reprimand involving the employee.
Where Union representation is provided herein, the employee shall be represented by the bargaining agent. The bargaining agent shall have the right to refuse representation in accordance with its own internal, nondiscriminatory rules. An
employee may not be represented by an attorney in a conference-for-the-record.
* * *
Section 2 of Article XXI provides, in part, that "[d]ismissals and suspensions shall be effected in accordance with applicable Florida Statutes, including the Administrative Procedures Act (APA) "
At the time of his hire by the School Board in August 2000, although he held a teaching certificate in physical education (grades six through 12), Respondent did not have an endorsement in driver education; however, he was able to teach driver education at MLEC pursuant to, what was described to Respondent as, a "three-year waiver."
In the latter part of his third year of teaching driver education at MLEC, Respondent inquired as to what he needed to do to obtain an endorsement in driver education. He first asked the head of his department at MLEC, Mr. Willenborg, who advised him that taking coursework through Dr. McCoogle's continuing education enterprise, M.O.T.E.T., at Palmetto was an acceptable means of obtaining such an endorsement.4 Respondent then contacted the School Board's supervisor of driver education, Dr. Reams, to verify the accuracy of the information Mr. Willenborg had provided him. Dr. Reams told Respondent, consistent with what Mr. Willenborg had said, that it was
"acceptable for [Respondent] to go pursue [his] endorsement through attending the M.O.T.E.T. program." Dr. Reams mentioned only one other alternative: "go[ing] to the University of Florida in Gainesville . . . for the summer . . . and tak[ing] courses up there."
Respondent reasonably relied on this advice that the "M.O.T.E.T. [program] was an acceptable option available to [him]." After speaking with Dr. Reams, Respondent telephoned Dr. McCoogle (using the telephone number Mr. Willenborg had given him) to express his interest in taking the coursework he needed to obtain an endorsement in driver education.
Dr. McCoogle invited Respondent to meet him at Palmetto to further discuss the matter.
Respondent met with Dr. McCoogle at Palmetto on or about April 12, 2003, at which time Respondent registered for three three-credit courses (Driver Education I, Driver Education II, and Organization and Administration of Driver Traffic Safety Education) offered by Eastern Oklahoma State College through
M.O.T.E.T. During the registration process, he gave Dr.
McCoogle a check in the amount of $1,442.00, representing almost half of the $2,885.00 he had to pay to take these three courses. Respondent subsequently (on May 17, 2003) paid Dr. McCoogle (by check) the remaining $1,443.00 he owed.
Dr. McCoogle was Respondent's instructor for all three courses.
He promised Respondent syllabi for these courses, but never delivered on his promise.
For each of the three courses, Dr. McCoogle directed Respondent to go to the Palmetto driving range on three Saturdays when students were being taught and stay for two hours each visit (for a total of six hours) to observe the instruction taking place and "see how a driver's range was conducted."
Respondent did as he was told by Dr. McCoogle. On three Saturdays in April and May, he spent a total of six hours (two hours each day) conducting observations at the Palmetto driving range. He spoke with the instructors who were teaching there on these days and observed them interact with their students (albeit not "inside the cars"). The only instruction he was able to observe was "what was taking place near the stand where the students sat." From his observations, he learned how the driving range was "managed."
In making these observations, Respondent had a "driver's ed textbook that [he] referred to."
Following his initial meeting with Dr. McCoogle on or about April 12, 2003, Respondent met with Dr. McCoogle on two subsequent occasions.5
Dr. McCoogle gave Respondent a grade of "A" in each of the three courses.
To get these grades Respondent simply "did the observations that Dr. McCoogle required." Respondent was not required to attend any classroom lectures, to take any examinations or quizzes, to write any research papers, or to turn in any notes he took of the observations he made.
Respondent received a transcript from Eastern Oklahoma State College reflecting the grades he had received in the three courses he had taken through M.O.T.E.T.
He submitted a copy of his transcript, along with an application for endorsement in driver education, to the School Board's certification office (for transmission to the state Department of Education). Given what he had been told by
Mr. Willenborg and Dr. Reams, he believed that, based on the coursework he had taken through M.O.T.E.T., he was eligible to receive the endorsement for which he was applying.
Respondent ultimately obtained this endorsement from the state Department of Education.
A criminal investigation of Dr. McCoogle and his
M.O.T.E.T. program led the School Board police to investigate the allegation that Respondent had violated School Board Rule 6Gx13-4A-1.21 by engaging in the following conduct:
Mr. Abner Reyes, Driver Education teacher, fraudulently obtained credit(s) from Eastern Oklahoma State College through the intricate and unlawful enterprise of Moving on Toward Education and Training, Inc. (MOTET), under the auspices of Mr. McCoogle. In essence, Mr. Reyes paid to obtain academic credit(s) for the purpose of certification, re- certification, and/or endorsements without availing himself of actual academic class time, work, or effort.
This allegation was "substantiated" by the School Board police.
The matter was then referred to the School Board's Office of Professional Standards.
On February 24, 2006, Lucy Iturrey of the School Board's Office of Professional Standards, along with two other School Board administrators, conducted a conference-for-the- record with Respondent to address the allegation against him that had been "substantiated" by the School Board police. Respondent, who appeared without any legal or union representation, provided a statement to Ms. Iturrey describing what he had done to obtain his endorsement in driver education.6
The School Board's Superintendent of Schools, consistent with the recommendation made to his office by the School Board Attorney, recommended to the School Board that it suspend Respondent and initiate dismissal proceedings against him "based on the allegation that he fraudulently obtained and
utilized credit(s) from Eastern Oklahoma State College through Moving On Toward Education and Training, Inc. (MOTET)."
The School Board took such action at its March 15, 2006, meeting.
After his suspension, Respondent was "basically unemployed for a little bit of time," doing some "odd
jobs . . . for funds," until he became the executive director of Kidz Excel (which offers summer and after school programs for children), a position he presently holds.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter of this proceeding and of the parties hereto pursuant to Chapter 120, Florida Statutes.
"In accordance with the provisions of s. 4(b) of Art.
IX of the State Constitution, district school boards [have the authority to] operate, control, and supervise all free public schools in their respective districts and may exercise any power except as expressly prohibited by the State Constitution or general law." § 1001.32(2), Fla. Stat.
Such authority extends to personnel matters and includes the power to suspend and dismiss employees. See §§ 1001.42(5), 1012.22(1)(f), and 1012.23(1), Fla. Stat.
The latter statutory provision, Section 1012.23(1), Florida Statutes, grants district school boards the authority to "adopt rules governing personnel matters."
The "rules governing personnel matters" that have been adopted by the School Board include School Board Rules 6Gx13-
1.213 (which prescribes a "Code of Ethics" for School Board personnel) and 6Gx13-4A-1.21 (dealing with "[r]esponsibilities and [d]uties").
A district school board is deemed to be the "public employer," as that term is used in Chapter 447, Part II, Florida Statutes, "with respect to all employees of the school district." § 447.203(2), Fla. Stat. As such, it has the right "to direct its employees, take disciplinary action for proper cause, and relieve its employees from duty because of lack of work or for other legitimate reasons," provided it exercises these powers in a manner that is consistent with the requirements of law. § 447.209, Fla. Stat.
Each district school board employee serving in an instructional capacity must possess an appropriate teaching certificate issued by the Florida Department of Education. See Bush v. Holmes, 919 So. 2d 392, 410 (Fla. 2006)("[P]ublic school teachers must be certified by the state."); and § 1012.55(1), Fla. Stat. ("Each person employed or occupying a position as school supervisor, school principal, teacher, library media
specialist, school counselor, athletic coach, or other position in which the employee serves in an instructional capacity, in any public school of any district of this state shall hold the certificate required by law and by rules of the State Board of Education in fulfilling the requirements of the law for the type of service rendered."). There are four types of teaching certificates: "the professional certificate, the nonrenewable professional certificate, the temporary certificate, and the athletic coaching certificate." Fla. Admin. Code R.
6A-4.002(1). "The professional certificate is the highest type of full-time certificate issued." Fla. Admin. Code R. 6A- 4.004(2). Once issued, a professional certificate must be renewed every five years. § 1012.56(6)(a), Fla. Stat.; and Fla. Admin. Code R. 6A-4.0051(3)(c).
The state Department of Education has been delegated the authority to "designate the certification subject areas."
§ 1001.03, Fla. Stat. Among the certification areas that the Department of Education has designated is physical education (grades K-12). See Fla. Admin. Code R. 6A-4.0283 (which, effective July 1, 2003, "supersede[d]" the provisions of Fla. Admin. Code R. 6A-4.028, which had provided for "Certification in Physical Education (Grades K-8) and Physical Education (Grades 6-12)").
An "endorsement" is a "rider on a Florida educator's certificate with a designated coverage." Fla. Admin. Code R. 6A-4.002(1)(e). An endorsement in driver education may, pursuant to Florida Administrative Code Rule 6A-4.004(6),7 be added to a certificate, upon application, if the certificate holder has met the requirements of Florida Administrative Code Rule 6A-4.0131, which provides as follows:
Specialization Requirements for the Endorsement in Driver Education - Academic Class.
A bachelor's or higher degree with certification in another subject, and
Nine (9) semester hours in driver education to include the areas specified below:
Three (3) semester hours in basic driver education,
Three (3) semester hours in advanced driver education, and
Three (3) semester hours in administration and supervision of driver traffic safety education.
"College credit used for educator certification purposes [must] be undergraduate or graduate credit earned at an accredited or approved institution as specified in Rule 6A- 4.003, F.A.C."
Florida Administrative Code Rule 6A-4.003 provides as follows:
Degrees, programs, and credits shall be determined acceptable for educator certification purposes based on the following:
Accredited institutions. Degrees and credits awarded by an institution of higher learning accredited by one (1) of the accrediting associations listed below shall be acceptable for educator certification purposes.
Regional accrediting associations. The regional accrediting associations are as follows:
The Southern Association of Colleges and Schools,
The Middle States Association of Colleges and Secondary Schools,
The New England Association of Colleges and Secondary Schools,
The North Central Association of Colleges and Secondary Schools,
The Northwest Association of Secondary and Higher Schools, and
The Western Association of Colleges and Schools.
Accrediting agencies approved by the United States Department of Education.
Nonaccredited approved institutions. A non-accredited approved institution of higher learning shall be identified as having a quality program resulting in a bachelor's or higher degree by one (1) of the following criteria:
The institution is accepted for certification purposes by the state department of education where the institution is located,
The institution holds a certificate of exemption pursuant to Section 1005.06, Florida Statutes,
The institution is a newly created Florida public college or university that offers a bachelor's or higher degree program,
The institution is located outside the United States and awards a degree that is the equivalent to a bachelor's or higher degree awarded by an accredited or approved institution in the United States. Isolated credit will be acceptable for certification purposes provided the credit is the equivalent of college credit earned in the United States, or
The degree from the institution was accepted by an accredited or approved institution either in transfer or as a basis for admission into the graduate program which resulted in the conferral of a higher degree. An applicant who holds a valid standard educator's certificate issued by a state other than Florida which may be used to satisfy the eligibility requirements for a professional certificate as described in Sections 1012.56(1) and (2), Florida Statutes, or to demonstrate mastery of subject matter knowledge as in Section 1012.56(4), Florida Statutes, is considered to have met the requirements of this rule.[8]
At all times material to the instant case, district school boards have had the right, under Section 1012.33, Florida
Statutes, to dismiss professional service contract teachers for "just cause."
At all times material to the instant case, "just cause," as used Section 1012.33, Florida Statutes, has been legislatively defined as including, "but . . . not limited" to, "misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude." The "but . . . not limited to" language in the statute makes abundantly clear that the list of things constituting "just cause" was intended by the Legislature to be non-exclusive and that other wrongdoing may also constitute "just cause" for dismissal. See Dietz v. Lee County School Board, 647 So. 2d 217, 218-19 (Fla. 2d DCA 1994)(Blue, J., specially concurring)("We assume that drunkenness and immorality,9 which are not included in the non-exclusive list of sins [set forth in Section 231.36(1)(a), Florida Statutes (2001), the predecessor of Section 1012.33, Florida Statutes] constituting just cause, would also be grounds for
dismissal. . . . In amending section 231.36 and creating a new contract status for teachers (professional service) and by failing to further define just cause, the legislature gave school boards broad discretion to determine when a teacher may be dismissed during the contract term. . . . I agree with the majority--that the legislature left that determination to the
respective wisdom of each school board by providing no definite parameters to the term 'just cause.'"10).
At all times material to the instant case, "misconduct in office" has been defined by rule of the State Board of Education (specifically Florida Administrative Code Rule 6B- 4.009, "Criteria for Suspension and Dismissal") 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 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.
The Code of Ethics of the Education Profession (set forth in Florida Administrative Code Rule 6B-1.001), at all times material to the instant case, has provided as follows:
The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, and the nurture of democratic citizenship. Essential to the achievement of these standards are the freedom to learn and to teach and the guarantee of equal opportunity for all.
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.
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.
The Principles of Professional Conduct for the Education Profession in Florida (set forth in Florida Administrative Code Rule 6B-1.006), at all times material to the instant case, have required a teacher to, among other things, "not intentionally distort or misrepresent facts concerning an educational matter in direct or indirect public expression"; to "maintain honesty in all professional dealings"; to "not misrepresent one's own professional qualifications"; and to "not submit fraudulent information on any document in connection with professional activities."
"Misconduct in office" may be established, even in the absence of "specific" or "independent" evidence of impairment, where the conduct engaged in by the teacher is of such a nature that it "speaks for itself" in terms of its seriousness and its adverse impact on the teacher's effectiveness. In such cases, proof that the teacher engaged in the conduct is also proof of impaired effectiveness. See Purvis v. Marion County School Board, 766 So. 2d 492, 498 (Fla. 5th DCA 2000); Walker v. Highlands County School Board, 752 So. 2d 127, 128-29 (Fla. 2d DCA 2000); Summers v. School Board of Marion County, 666 So. 2d 175, 175-76 (Fla. 5th DCA 1995); Brevard County School Board v.
Jones, No. 06-1033, 2006 Fla. Div. Adm. Hear. LEXIS 287 *17 (Fla. DOAH June 30, 2006)(Recommended Order)("[T]he need to demonstrate 'impaired effectiveness' is not necessary in instances where the misconduct by a teacher speaks for itself, or it can be inferred from the conduct in question."); and Miami-Dade County School Board v. Lefkowitz, No. 03-0186, 2003 Fla. Div. Adm. Hear. LEXIS 675 *23-24 (Fla. DOAH July 31, 2003)(Recommended Order)("The School Board failed to prove by a preponderance of the direct evidence that Mr. Lefkowitz's actions were so serious that they impaired his effectiveness as a teacher. Nonetheless, based on the findings of fact herein, it may be inferred that Mr. Lefkowitz's conduct impaired his effectiveness as a teacher in the Miami-Dade County public school system.")(citation omitted). A teacher's engaging in deceitful or dishonest conduct to obtain or renew a teaching certificate or endorsement is an example of such conduct that "speaks for itself." See Broward County School Board v. Sapp, No. 01-3803, 2002 Fla. Div. Adm. Hear. LEXIS 1574 *16 (Fla. DOAH
September 24, 2002)(Recommended Order)("[A]s a teacher and coach, Sapp was required to be a role model for his students. To be effective in this position of trust and confidence, he needed to maintain a high degree of trustworthiness, honesty, judgment, and discretion.").
"Under Florida law, a [district] school board's decision to terminate an employee is one affecting the employee's substantial interests; therefore, the employee is entitled to a formal hearing under section 120.57(1) if material issues of fact are in dispute."11 Sublett, 617 So. 2d at 377.
Where the employee is a professional service contract teacher, the hearing may be conducted, pursuant to Section 1012.33, Florida Statutes, either by the district school board itself or by a DOAH administrative law judge (who, following the hearing, makes a recommendation to the district school board).
The teacher must be given written notice of the specific charges prior to the hearing. Although the notice "need not be set forth with the technical nicety or formal exactness required of pleadings in court," it should "specify the [statute,] rule, [regulation, or policy] the [district school board] alleges has been violated and the conduct which occasioned [said] violation." Jacker v. School Board of Dade County, 426 So. 2d 1149, 1151 (Fla. 3d DCA 1983)(Jorgenson, J., concurring).
The teacher may be suspended without pay pending the outcome of the termination proceeding; "but, if the charges are not sustained, the [teacher] shall be immediately reinstated, and his or her back salary shall be paid." § 1012.33(6)(a), Fla. Stat.
At the termination hearing, the burden is on the district school board to prove the allegations contained in the notice. Unless there is a collective bargaining agreement covering the bargaining unit of which the teacher is a member that provides otherwise12 (and there is not such a collective bargaining agreement controlling the instant case), the district school board's proof need only meet the preponderance of the evidence standard. See McNeill v. Pinellas County School Board, 678 So. 2d 476, 477 (Fla. 2d DCA 1996)("The School Board bears the burden of proving, by a preponderance of the evidence, each element of the charged offense which may warrant dismissal."); Sublett v. Sumter County School Board, 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995)("We agree with the hearing officer that for the School Board to demonstrate just cause for termination, it must prove by a preponderance of the evidence, as required by law, that the allegations of sexual misconduct were
true . . . ."); Allen v. School Board of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA 1990)("We . . . find that the hearing officer and the School Board correctly determined that the appropriate standard of proof in dismissal proceedings was a preponderance of the evidence. . . . The instant case does not involve the loss of a license and, therefore, Allen's losses are adequately protected by the preponderance of the evidence standard."); and Dileo v. School Board of Dade County, 569 So.
2d 883, 884 (Fla. 3d DCA 1990)("We disagree that the required quantum of proof in a teacher dismissal case is clear and convincing evidence, and hold that the record contains competent and substantial evidence to support both charges by a preponderance of the evidence standard.").
In determining whether the district school board has met its burden of proof, it is necessary to evaluate the district school board's evidentiary presentation in light of the specific allegation(s) made in the written notice of charges. Due process prohibits a district school board from terminating a professional service contract teacher based on matters not specifically alleged in the notice of charges, unless those matters have been tried by consent. See Shore Village Property Owners' Association, Inc. v. Department of Environmental
Protection, 824 So. 2d 208, 210 (Fla. 4th DCA 2002); and Lusskin v. Agency for Health Care Administration, 731 So. 2d 67, 69 (Fla. 4th DCA 1999).
In the instant case, the School Board has alleged in its Notice that just cause exists to terminate Respondent's employment as a professional service contract teacher with the School Board because he "paid for and received transcripts for college credit from Eastern Oklahoma State College and submitted those transcripts to the District when he knew that he had not completed any coursework to earn the college credits."
According to the Notice, by engaging in this conduct, Respondent violated School Board Rule 6Gx13-4A-1.21 (Count I); demonstrated a lack of the "good moral character" required by Section 1012.32(1), Florida Statutes, which provides, in pertinent part, that, "to be eligible for appointment in any position in any district school system, a person shall be of good moral character" (Count II); violated School Board Rule 6Gx13-1.213 (Count III); and was guilty of "misconduct in office" (Count IV).
The preponderance of the record evidence does not support these allegations of wrongdoing.
Contrary to the assertion in the Notice, Respondent did not obtain his driver education endorsement by using college credits that "he knew . . . he had not completed any coursework to earn."
It is not true that Respondent did not complete any coursework or engage in any effort to earn the college credits he used in obtaining his driver education endorsement. He conducted three two-hour observations at the Palmetto driving range, as he had been assigned to do by Dr. McCoogle, his instructor for the three courses for which he received these credits. Conducting these observations may not have been particularly challenging or time-consuming, but it was all that
Dr. McCoogle had required Respondent to do to successfully complete these courses.13
Having been told by his department head and the School Board's supervisor of driver education that these courses offered by Dr. McCoogle were legitimate14 and could be used to obtain a driver education endorsement, and then having done everything for these courses that Dr. McCoogle had asked of him, Respondent reasonably believed, when he submitted a copy of his Eastern Oklahoma State College transcript as part of the driver education endorsement application process, that he had earned the credits reflected on the transcript and was therefore qualified for the endorsement for which he was applying. There was no intent on his part, in making this submission, to deceive or defraud anyone regarding his qualifications for the endorsement; and there was nothing unseemly, immoral, or unethical about what he did. His actions did not violate School Board Rule 6Gx13-4A-1.21, as alleged in Count I of the Notice; did not demonstrate a lack of the "good moral character" required by Section 1012.32(1), Florida Statutes, as alleged in Count II of the Notice; did not violate School Board Rule 6Gx13- 1.213, as alleged in Count III of the Notice; and did not amount to "misconduct in office," as alleged in Count IV of the Notice.
Inasmuch as the proof does not support any of the allegations of wrongdoing made in the Notice, Respondent must be
immediately reinstated with back pay, in accordance with Section 1012.33(6)(a), Florida Statutes.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that the School Board issue a final order reinstating Respondent with back pay and dismissing the charges against him.
DONE AND ENTERED this 13th day of February, 2007, in Tallahassee, Leon County, Florida.
S
STUART M. LERNER
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 13th day of February, 2007.
ENDNOTES
1 All references in this Recommended Order to Florida Statutes are to Florida Statutes (2006).
2 The hearing was originally scheduled to commence on June 21, 2006, but was continued (for good cause) several times.
3 Respondent's Exhibit 2 is the transcript of the December 15, 2006, deposition of James Willenborg, which was received into evidence in lieu of Mr. Willenborg's live testimony.
4 Prior to initiating this discussion with Mr. Willenborg, Respondent had not received any information from the School Board advising as to "what procedure [he was] supposed to follow" to obtain an endorsement in driver education.
5 The only record evidence as to what occurred during these two subsequent meetings is Respondent's uncertain and equivocal testimony that, when they met on these two occasions, he and Dr. McCoogle "may have talked about the observations" Respondent had conducted.
6 Ms. Iturrey testified that, after the findings of the investigation of the M.O.T.E.T. program became public, Eastern Oklahoma State College "pulled the credits from those people," like Respondent, who had taken coursework through M.O.T.E.T. Because it is not apparent from the record that this testimony was based on Ms. Iturrey's personal knowledge (as opposed to what she may have been told by someone else), the testimony, standing alone as it does, is insufficient to support a finding of fact that Eastern Oklahoma State College has rescinded Respondent's credits. See Scott v. Department of Professional Regulation, 603 So. 2d 519, 520 (Fla. 1st DCA 1992)("The only evidence which the appellee presented at the hearing was a hearsay report which would not have been admissible over objection in a civil action. . . . [T]his evidence was not sufficient in itself to support the Board's findings."); Doran v. Department of Health and Rehabilitative Services, 558 So. 2d
87 (Fla. 1st DCA 1990)("The documents presented before the hearing officer were hearsay and did not come within any recognized exception which would have made them admissible in a civil action. . . . Because the only evidence presented by the department to show that Doran held assets in excess of the eligibility requirements for receiving ICP benefits consisted of uncorroborated hearsay evidence, we must reverse the hearing officer's final order."); and § 120.57(1)(c), Fla. Stat. ("Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions."). However, even if there was sufficient evidence to support a finding that the credits have been rescinded, the existence of such evidence would not have
any impact on the undersigned's recommendation as to the action that the School Board should take in this case.
7 Florida Administrative Code Rule 6A-4.004(6) provides:
Addition of endorsements. An endorsement may be added to a valid temporary or professional certificate when an applicant meets the following requirements:
Completes the application requirements as specified in Rule 6A-4.0012, F.A.C., and
Satisfies the specialization requirements specified in the rules of the Florida State Board of Education for each endorsement to be added to the certificate.
8 Inasmuch as Respondent's application for endorsement was granted, it would appear that the Department of Education, in evaluating the application, determined that Eastern Oklahoma State College was either an "accredited institution" or a "nonaccredited approved institution," as described in Florida Administrative Code Rule 6A-4.003. The record is devoid of any evidence that this determination made by the Department of Education was erroneous.
9 "Immorality" is defined in Florida Administrative Code Rule 6B-4.009, the State Board of Education rule which "define[s]" the "basis for charges upon which dismissal action against instructional personnel may be pursued," as "conduct that is inconsistent with the standards of public conscience and good morals [and is] 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."
10 Judge Blue noted in his opinion that the Legislature provided a "separate standard for dismissal" for continuing contract teachers which authorized the taking of such action only "for conduct constituting one of the so-called 'seven deadly sins': immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude." Id. at 218.
11 "A county school board is a state agency falling within Chapter 120 for purposes of quasi-judicial administrative orders." Sublett v. District School Board of Sumter County, 617 So. 2d 374, 377 (Fla. 5th DCA 1993).
12 Where the district school board, through the collective bargaining process, has agreed to bear a more demanding standard, it must honor, and act in accordance with, its agreement. See Chiles v. United Faculty of Florida, 615 So. 2d 671, 672-73 (Fla. 1993)("Once the executive has negotiated and the legislature has accepted and funded an agreement [with its employees' collective bargaining representative], the state and all its organs are bound by that [collective bargaining agreement] under the principles of contract law."); Hillsborough County Governmental Employees Association v. Hillsborough County Aviation Authority, 522 So. 2d 358, 363 (Fla. 1988)("[W]e hold that a public employer must implement a ratified collective bargaining agreement with respect to wages, hours, or terms or conditions of employment . . . ."); and Palm Beach County School Board v. Auerbach, No. 96-3683, 1997 Fla. Div. Adm. Hear. LEXIS 5185 *13-14 (Fla. DOAH February 20, 1997)(Recommended Order)("Long-standing case law establishes that in a teacher employment discipline case, the school district has the burden of proving its charges by a preponderance of the evidence. . . .
However, in this case, the district must comply with the terms of the collective bargaining agreement, which, as found in paragraph 27, above, requires the more stringent standard of proof: clear and convincing evidence.").
13 What, if any, minimum course requirements Eastern Oklahoma State College (as opposed to Dr. McCoogle) had established for these particular courses, the evidentiary record does not establish.
14 That Dr. McCoogle operated his courses on School Board property added to their appearance of legitimacy.
COPIES FURNISHED:
Jean Marie Middleton, Esquire Miami-Dade County School Board
1450 Northeast Second Avenue, Suite 400
Miami, Florida 33132
Lynn L. Audie, Esquire Hermelee & Geffin, LLC
101 Northeast Third Avenue, Suite 1110 Fort Lauderdale, Florida 33301
Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board
1450 Northeast Second Avenue, Suite 400
Miami, Florida 33132
Honorable John L. Winn, Commissioner of Education Department of Education
Turlington Building, Suite 1514
325 West Gaines Street Tallahassee, Florida 32399-0400
Daniel J. Woodring, General Counsel Department of Education
Turlington Building, Suite 1244
325 West Gaines Street 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.
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 19, 2007 | Agency Final Order | |
| Feb. 13, 2007 | Recommended Order | Petitioner, in the dismissal proceeding, failed to prove that Respondent acted improperly in obtaining endorsement in driver education. Recommend reinstatement with back pay. |
