STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI DADE SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 07-3266

)

JORGE CISNEROS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to agreement of the parties, this matter is being decided by Administrative Law Judge Claude B. Arrington of the Division of Administrative Hearings (DOAH) on the parties’ Joint Stipulation of Facts filed July 10, 2007.

APPEARANCES

For Petitioner: Janeen L. Richard, Esquire

Ana I. Segura, Esquire

Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Kevin A Raudt, Esquire

Law Offices of Kevin A. Raudt, P.A. 707 Southeast Third Avenue, Sixth Floor Fort Lauderdale, Florida 33316

STATEMENT OF THE ISSUE

Whether Petitioner has just cause to terminate Respondent’s employment as a teacher based on his conviction of the crime of vehicular homicide.

PRELIMINARY STATEMENT

At its regularly scheduled meeting on March 15, 2006, Petitioner suspended Respondent’s employment without pay and initiated proceedings to terminate that employment. That action was predicated on Respondent’s conviction of vehicular homicide, which Petitioner contends is a crime of moral turpitude.

Respondent requested a formal hearing, and the matter was referred to DOAH, where it was assigned DOAH Case No. 06-1077.

On May 5, 2006, Petitioner filed its Notice of Specific Charges charging Respondent with conviction of a crime involving moral turpitude (Count I) and disqualification from employment for failure to meet statutory employment standards pursuant to Chapter 435, Florida Statutes1 (Count II). On May 18, 2006, the parties filed an Agreed Motion for Continuance. Thereafter, during a telephone conference call, the parties agreed to close DOAH Case No. 06-1077, with the right of either party to move to reopen the proceedings.

On June 8, 2007, Respondent filed his “Motion to Reopen Case and Set Trial Date.” On June 28, 2007, the undersigned heard Respondent’s motion by telephone conference call. During the telephone conference call, the parties agreed to stipulate to all material facts and to the entry of a Recommended Order based on the sole issue of whether Respondent was convicted of a crime involving moral turpitude. On July 10, 2007, the parties

filed their Joint Stipulation of Facts. The parties’ stipulated facts are set forth below verbatim. In addition, Petitioner attached certain exhibits to its Proposed Recommended Order.

Respondent has consented to those exhibits being considered by the undersigned with the caveat that Respondent is not now and has never been a member of the United Teachers of Dade. Those exhibits, which were attached to Petitioner’s Request for Official Recognition filed by Petitioner in DOAH Case No. 06- 1077 on May 18, 2006, were described therein as follows:

1. Arrest Affidavit, Florida Highway Patrol Case Number 799-38-14 (pages 1 and 2);

2. Order of Probation, Case number CFK 00-1564 (pages 1-4);

3. State Board Rule 6Gx-4C-1.021;

4. State Board Rule 6B-4.009;

5. Chapter 435, Florida Statutes;

6. Chapter [sic] 1012.32, Florida Statutes; and

7. Excerpt from Collective Bargaining Agreement between Miami-Dade County Public Schools and United Teachers of Dade. (Article XXI, Section 1.B).

Both parties have filed Proposed Recommended Orders, which have been duly-considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent was hired as a teacher by Miami-Dade County Public Schools in February 2000.

2. On August 13, 1999, Respondent was involved in a motor vehicle accident in Monroe County, Florida. The accident resulted in criminal charges filed against Respondent in December 2000 for vehicular homicide (Section 782.071, Fla. Stat. [sic]).

3. On or about May 2002, Respondent pled no contest and was adjudicated guilty of the offense of vehicular homicide by the Circuit Court for the Sixteenth Judicial Circuit in and for Monroe County, Florida.

4. Respondent was placed on probation for five years, ordered to pay $50.00 court costs per month for his suspension [sic], and ordered to perform 500 hours of community service work.

5. On March 15, 2006, Petitioner took action to suspend and initiate dismissal proceedings against Respondent due to his conviction of a crime involving moral turpitude.

6. School Board Rule 6Gx13-4C-1.021 defines vehicular homicide (Section 782.071, F.S. [sic]) as a crime involving

   moral turpitude.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2007).

8. Because this case is a proceeding to terminate Respondent’s employment with the School Board and does not involve the loss of a license or certification, Petitioner has the burden of proving the allegations in the Notice of Specific Charges by a preponderance of the evidence, as opposed to the more stringent standard of clear and convincing evidence. McNeill v. Pinellas County School Board, 678 So. 2d 476 (Fla. 2d DCA 1996); Allen v. School Board of Dade County, 571 So. 2d 568,

   569 (Fla. 3d DCA 1990); Dileo v. School Board of Lake County, 569 So. 2d 883 (Fla. 3d DCA 1990).

9. Section 1012.32 (1), Florida Statutes, provides, in part, that to be eligible for appointment in any position in any district school system, a person shall be of good moral character.

10. The parties have not stipulated as to the type of contract Respondent had with Petitioner. Any employment contract with a school board can be terminated if the employee has been convicted of a crime of moral turpitude as that term is defined by the State Board of Education. See §§ 1012.33(1)(a) and (4)(c), Fla. Stat.

11. The State Board of Education has enacted Florida Administrative Code Rule 6B-4.009(6), which defines moral turpitude to mean:

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

    
    

12. Classroom teachers are required to undergo a Class 2 background screening as a condition of their employment. See

    §§ 1012.32(2)(a) and 1012.56(9), Fla. Stat. Section 435.04, Florida Statutes, sets forth the disqualifying offenses for employees subject to Class 2 screening including, in subsection (2)(f), vehicular homicide.

13. Section 435.06, Florida Statutes, sets forth certain exclusions from employment for employees with a disqualifying offense. Section 435.07, Florida Statutes, provides for an exemption from a disqualifying offense and states the grounds and the procedure to be followed in seeking an exemption. Respondent is not seeking an exemption from his disqualifying offense in this proceeding.

14. Respondent does not address Petitioner’s contention that his conviction of vehicular homicide is a disqualifying offense pursuant to Section 435.06, Florida Statutes. Pursuant to the provisions of Sections 1012.32(2)(a), 1012.56(9), 435.04, and 435.06, Florida Statutes, Respondent’s conviction of the crime of vehicular homicide disqualifies him from his employment

    with Petitioner and constitutes grounds for the termination of that employment.

15. Respondent has stipulated that Petitioner has adopted a rule that defines crimes of moral turpitude to include vehicular homicide, and it has acted within its authority in doing so. See §§ 1001.32, and 1012.23, Fla. Stat. In his Proposed Recommended Order, Respondent concedes:

    There is no question that Petitioner has the right to adopt its own rules for the purpose of the orderly running of the entity. . . . No evidence is before the Court [sic] that School Board Rule 6Gx13- 14C-1.021 has been adopted improperly.

    
    

16. Respondent argues that notwithstanding the rule, vehicular homicide is not a crime of moral turpitude because it does not involve a premeditated act. Respondent argues that Petitioner’s attempt through its rule to classify vehicular homicide as a crime of moral turpitude “is at best incorrect and at worst unlawful.” Respondent cites authority in support of his position.

17. Respondent’s arguments are misplaced. To challenge the validity of Petitioner’s existing rule, Respondent must file a rules challenge pursuant to the provisions of Section 120.56, Florida Statutes (2007). Petitioner is entitled to rely upon its adopted rule until a forum of competent jurisdiction declares it to be unconstitutional or an invalid exercise of

delegated legislative authority. Respondent cannot collaterally attack the validity of Petitioner’s rule in this proceeding to

terminate his employment.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a final order terminating Respondent’s employment.

DONE AND ENTERED this 11th day of September, 2007, in Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

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 11th day of September, 2007.

ENDNOTE

1/ Unless otherwise noted, all statutory references are to Florida Statutes (2006).

COPIES FURNISHED:

Janeen L. Richard, Esquire Ana I. Segura, Esquire

Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Kevin A Raudt, Esquire

Law Offices of Kevin A. Raudt, P.A.

707 Southeast Third Avenue, Sixth Floor Fort Lauderdale, Florida 33316

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

1450 Northeast Second Avenue, Suite 912

Miami, Florida 33132-1308

Deborah K. Kearney, 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.

Docket for Case No: 07-003266TTS

Orders for Case No: 07-003266TTS