vs. ) Case No. 07-0676
Respondent. )
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 April 17, 2007, by video teleconference at sites in Miami and
Tallahassee, Florida.
29605 U.S. Highway 19 North, Suite 110
Whether Respondent committed the violations alleged in the Notice of Specific Charges and, if so, what disciplinary action should be taken against him.
By letter dated May 31, 2006, Responded was notified that the Miami-Dade County Superintendent of Schools was recommending that the Miami-Dade County School Board (School Board), at its June 14, 2006, meeting, take action to suspend Respondent from his teaching position and initiate dismissal proceedings against him. Respondent subsequently "request[ed] a hearing to be held before an administrative law judge" on the matter. Respondent's hearing request was referred to DOAH on June 12, 2006. It was docketed as DOAH Case No. 06-2037.
On July 5, 2006, the School Board filed a Notice of Specific Charges (Notice) in DOAH Case No. 06-2037. The Notice contained the following Statement of Facts:
Count I of the Notice alleged that "Clements'[] admission that he accepted and reported college credits without the ability to demonstrate an[y] class work or 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 "Clements 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 "Clements'[] 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 that these violations "constitute[] just cause for termination." Count IV of the Notice alleged that "Clements'[] violation of the code of ethics [referenced in Count III of the Notice] constitutes misconduct in office and constitutes just cause for termination."
On July 10, 2006, Respondent filed a Notice of Voluntary Dismissal Without Prejudice in DOAH Case No. 06-2037. On July 12, 2006, an Order Closing File in the case was issued.
On February 7, 2007, the School Board filed a "notice of refilling the Chevas Clements case" with DOAH. On February 12, 2007, DOAH Case No. 06-2037 was reopened as DOAH Case No.
07-0676.
The final hearing in the case was held, as noted above, on April 17, 2007.2 Four witnesses testified at the hearing: Jose Garcia, Detective Gylmar Ochoa, Reinaldo Benitez, and Respondent. In addition, 36 exhibits (Petitioner's Exhibits 1 through 8 and 10 through 37) were offered and received into evidence. At the close of the evidentiary portion of the hearing on April 17, 2007, the undersigned established a deadline (15 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 (which consists of one volume) was filed with DOAH on July 10, 2007.
The School Board and Respondent both filed their Proposed Recommended Orders on July 25, 2007.
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), South Dade Senior High School (South Dade), and Miami Killian Senior High School (Killian)) 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., operated a continuing education enterprise, Moving on Toward Education and Training (M.O.T.E.T.), which offered courses for which teachers could receive college credit.
Respondent is a physical education teacher with the School Board, who has taught at South Dade and, more recently, Killian. He began his School Board employment in 1999 as a substitute teacher. In 2001, he obtained a full-time teaching position. Initially, he held an annual contract. Since the beginning of the 2004-2005 school year, he has worked under a professional service contract.
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
INTRODUCTION
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.
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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.
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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 1.B.1.a. of Article XXI provides that "[a]ny member of the instructional staff may be suspended or dismissed at any time during the school year, provided that the charges against him are based upon Florida Statutes."
Section 1.B.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) "
Since July 1, 2003, Respondent has held a professional teaching certificate issued by the Florida Department of Education (DOE).
He applied for and obtained this certificate (which has an expiration date of June 30, 2008) after having taken and successfully completed the following four three-credit courses offered by Eastern Oklahoma State College through Dr. McCoogle's
M.O.T.E.T. operation at Palmetto: Introduction to Education (Course Number Educ 1863); Human Growth and Development (Course Number Educ 1883); General Methods Curriculum I (Course Number Educ 1843); and General Methods Curriculum II (Course Number Educ 1943). He received a grade of "B" in the former two courses and a grade of "A" in the latter two.
For each of the four courses, Respondent attended class sessions at Palmetto on Saturdays, with Dr. McCoogle serving as his instructor.
Respondent paid a total of $2,610.00 in tuition costs and fees to take these courses.
Respondent first "heard about Dr. McCoogle offering th[e]se classes" from teaching colleagues.
There were "a lot of [other] teachers" who were also taking college courses through M.O.T.E.T., "so [Respondent] saw no problem with it."
Moreover, the principal of the school at which Respondent was teaching knew about Respondent's taking coursework through M.O.T.E.T. and gave Respondent no indication "that there was any problem in taking the classes."
Respondent completed the last of the four courses prior to December 2002.
Thereafter, he received a transcript from Eastern Oklahoma State College reflecting the grades and credits he earned in the four courses.
Respondent "used this transcript to obtain [his] professional [teaching] certificate," although he did not send the transcript directly to DOE. Rather, he brought it to the School Board's certification office, which submitted it to DOE. The person to whom he handed the transcript at the certification office asked if he had taken the courses reflected on the transcript at "Palmetto High School under Dr. McCoogle." Respondent responded in the affirmative. The certification
office staff member did not "express any concerns" about the validity of the courses, and he accepted the transcript.
Some time after having obtained his professional teaching certificate, Respondent received a letter, dated April 13, 2004, from the president of Eastern Oklahoma State College, which read, in pertinent part, as follows:
Our records show that you took one or more courses offered under the auspices of Move on Toward Education and Training (MOTET). MOTET is an entity located in Miami, Florida.
In the past, Eastern Oklahoma State College (EOSC) was associated with MOTET, but, unlike MOTET, EOSC operates under the authority of the Oklahoma State Regents for Higher Education (OSRHE) and the Higher Learning Commission of the North Central Association (HLC/NCA). The courses offered by MOTET through this association did not comply with the OSRHE policy and the standards of the HLC/NCA. For these reasons, EOSC can offer neither academic credit nor continuing education certificates for the MOTET courses.
EOSC is concerned that students may have taken the courses believing that they would earn either academic credit or continuing education certificates from EOSC. Because neither academic credit nor continuing education certificates are available, EOSC is offering refunds of that portion of these students' tuition which MOTET collected and sent to EOSC ($75.00 per course hour).
* * *
Respondent reported to a UTD representative and to his principal that he had received this letter. He did not bring the matter to the attention of DOE.
Respondent has not "taken any courses to replace these credits" that were rescinded by Eastern Oklahoma State College.
A criminal investigation of Dr. McCoogle and his
M.O.T.E.T. program led the School Board police to investigate the following allegation against Respondent:
It is alleged that Mr. Chevas Clement, Teacher, Miami Kilian Senior High, fraudulently obtained credit(s) from Eastern Oklahoma State College (EOSC) through the intricate and unlawful enterprise of Moving On Toward Education and Training, Inc. (MOTET), under the auspices of Dr. William McCoogle. In essence, the employee 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 following its investigation.
As part of its investigation, the School Board police conducted a "brief interview" of Respondent on December 5, 2005, approximately three years after he had completed his last Eastern Oklahoma State College course. During the interview, Respondent "could not elaborate exactly" on any work that he did in any of the Eastern Oklahoma State College courses he took
through M.O.T.E.T., nor was he able to give the names of any of the students who took these courses with him.
Following the School Board police investigation, the matter was referred to the School Board's Office of Professional Standards.
On February 27, 2006, Reinaldo Benitez of the School Board's Office of Professional Standards, along with two other School Board administrators, conducted a conference-for-the- record (CFR) with Respondent and his UTD representative to address the allegation against him that had been "substantiated" by the School Board police. At the CFR, Respondent's UTD representative, on his behalf, stated the following:
[Respondent] learned of Dr. McCoogle from unknown teachers at Miami Killian Senior High School. He registered for four classes, all of which took place at Miami Palmetto Senior High School. He paid Dr. McCoogle approximately three thousand one hundred[] dollars, in the form of a
money order. Classes took place on Saturday mornings unless Dr. McCoogle specified there was no class. Classes consisted of an outline that Dr. McCoogle explained at the beginning of class. There were approximately ten students he observed at one time.
The School Board's Superintendent of Schools recommended that the School Board, at its June 14, 2006, meeting, suspend Respondent and initiate termination proceedings against him.
The School Board took such action at its June 14, 2006, meeting.
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. See § 1012.56(6)(a), Fla. Stat.; and Fla. Admin.
Code R. 6A-4.0051(3)(c).
DOE has been delegated the authority to "designate the certification subject areas." § 1001.03, Fla. Stat. Among the certification areas that DOE 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)").
Florida Administrative Code Rule 6A-4.002(3) provides that "[c]ollege credit used for educator certification purposes shall 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(1) describes those "accredited" institutions referred to in Florida Administrative Code Rule 6A-4.002(3). It provides as follows:
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.
Florida Administrative Code Rule 6A-4.003(2) describes those "approved" institutions referred to in Florida Administrative Code Rule 6A-4.002(3). It provides as follows:
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.[3]
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,[4] 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.'"5).
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 a teaching certificate 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."6 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 otherwise7 (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 a transcript for college credit from Eastern Oklahoma State College and submitted th[at] transcript[] to the District" "without engaging in any academic effort." 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, as well as Florida Administrative Code Rules 6B-1.001 and Rule 6B-1.006 (Count III); and was guilty of "misconduct in office" (Count IV).
The preponderance of the record evidence does not support these allegations of wrongdoing.
At the heart of the School Board's case against Respondent is its allegation that the Eastern Oklahoma State College credits Respondent used to obtain his professional teaching certificate were obtained "without [his having] engag[ed] in any academic effort."
In an attempt to prove this allegation at the final hearing, the School Board relied on Respondent's own words, presenting evidence of prehearing statements he had made8 and calling him to testify (as its only witness having personal knowledge of what had gone on in the Eastern Oklahoma State College courses he had taken through M.O.T.E.T.9). The School Board's efforts fell short of the mark.
At no time during his testimony did Respondent admit that he had not "engag[ed] in any academic effort"; nor did the School Board offer any proof that he had made, either personally or through a representative, such a concession prior to hearing. Although it is true that the description he gave of what he had done to earn the course credits reflected on his Eastern
Oklahoma State College transcript was very vague and lacking in important details and he did not produce examples of any written work he had done for these courses, it was not his burden to prove his "academic effort." Rather, the burden was on the School Board to establish, as it had alleged in the Notice, that Respondent had not "engag[ed] in any academic effort," a burden that it failed to meet notwithstanding that Respondent's account concerning the matter was not entirely convincing. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986), quoting from Bose Corp. v. Consumers Union, 466 U.S. 485, 508 (1984)("As we have recently said, 'discredited testimony is not [normally] considered a sufficient basis for drawing a contrary conclusion.'"); Hector v. United States, 883 A.2d 129, 134 (D.C. 2005)("'[T]o hold that the Government can be credited with additional affirmative evidence of guilt based on negative credibility determinations made against the defendant would [impermissibly] relieve the Government of the burden of proving its case,' and that 'contradicts the reason why appellate courts review convictions for sufficiency of the evidence - that [the trier of fact] sometimes gets things wrong.' Therefore, Judge Milliken's disbelief of Hector's testimony could not fill the gap left by the government's total lack of relevant evidence as to Hector's alleged willful violation of the CPO.")(citations omitted); Goldhirsh Group v. Alpert, 107 F.3d 105, 109 (2d Cir.
1997)("[N]o witness testified that Kaplan made any disparaging remarks in his calls to the advertising agencies. And one witness -- Kaplan -- testified that no disparaging remarks were made. The jury certainly had the right to disbelieve Kaplan.
But, 'if all of the witnesses deny that an event essential to the plaintiff's case occurred, the plaintiff cannot get to the jury simply because the jury might disbelieve these denials.
There must be some affirmative evidence that the event occurred.'"); United States v. Williams, 459 F.2d 903, 906 n.5 (2d Cir. 1972)("It is obvious from the proceedings on the hearing to remand that the district judge, who had also tried the case, seriously questioned appellant's credibility. Lack of credibility on the part of both appellant and his parents, however, does not supply the affirmative proof necessary to establish a knowing refusal to consent."); and Miami-Dade County School Board v. Brenes, No. 06-1758, 2007 Fla. Div. Adm. Hear.
LEXIS 122 *41 n.9 (Fla. DOAH February 27, 2007)(Recommended Order)("Brenes was an uneven witness whose testimony the undersigned has discounted as intermittently unreliable.
Brenes, however, did not have the burden to prove his innocence, and his relative lack of credibility added nothing to the credibility of any witness who testified against him. The upshot of Brenes's weaknesses as a witness is the undersigned's inability to make many affirmative exculpatory findings.").
Not having established by a preponderance of the evidence the underlying factual premise upon which the allegations of wrongdoing made in the Notice are based (to wit: that Respondent engaged in no "academic effort" to earn the credits reflected on the Eastern Oklahoma State College transcript he submitted to the School Board10), the School Board must immediately reinstate Respondent with back pay, in accordance with Section 1012.33(6)(a), Florida Statutes.
RECOMMENDED that the School Board issue a final order dismissing the charges against Respondent and reinstating him with back pay.
DONE AND ENTERED this 8th day of August, 2007, in Tallahassee, Leon County, Florida.
STUART M. LERNER
Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 2007.
1 Unless otherwise noted, all references in this Recommended Order to Florida Statutes are to Florida Statutes (2007).
2 The hearing was originally scheduled to commence on April 5, 2007, but was continued (for good cause) at the School Board's request.
3 Inasmuch as DOE granted Respondent the professional teaching certificate for which he had applied, it would appear that the DOE, 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 apparent determination made by the Department of Education was erroneous.
4 "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."
5 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.
6 "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).
7 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.").
8 These prehearing statements constitute "admissions," within the meaning of Section 90.803(18), Florida Statutes, and therefore, notwithstanding their hearsay nature, are sufficient, in themselves, to support a finding of fact pursuant to Section 120.57(1)(c), Florida Statutes, which provides as follows:
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.
9 Neither Dr. McCoogle, nor any of Respondent's classmates, testified at the final hearing.
10 In its Proposed Recommended Order, the School Board contends that Respondent engaged in further wrongdoing by "not complet[ing] any academic course work to support his certification to teach for M-DCPS" and "continuing to teach" after finding out that "the [Eastern Oklahoma State College] credits [had been] rescinded." Because this specific allegation
of wrongdoing was not made in the School Board's Notice, it cannot be considered. See School Board of Dade County v.
Lawless, No. 90-7092, 1991 Fla. Div. Adm. Hear. LEXIS 6387 *10 (Fla. DOAH March 12, 1991)(Recommended Order)("[N]o discussion is warranted as to those rules which Petitioner alleges for the first time in its proposed recommended order that Respondent has violated since those additional allegations are not contained in the Notice of Specific Charges, and Respondent was not on notice that he was required to defend against them.").
29605 U.S. Highway 19 North, Suite 110
Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board
Honorable Jeanine Blomberg Interim Commissioner of Education Department of Education Turlington Building, Suite 1514
Deborah K. Kearney, General Counsel Department of Education
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.
