This case came before Administrative Law Judge John G. Van Laningham for final hearing by video teleconference on June 10, 2010, at sites in Tallahassee and Miami, Florida.
For Petitioner: Christopher J. La Piano, Esquire
Herdman & Sakellarides, P.A.
29605 U.S. Highway 19 North, Suite 110
The first issue in this case is whether, as the district school board alleges, a middle school teacher had a consensual sexual relationship with a teenage student; if this allegation is proved to be true, then it will be necessary to decide whether the school board has just cause to fire the teacher.
At its regular meeting on November 17, 2009, Petitioner School Board of Miami-Dade County voted to suspend Respondent Mariella Brenlla without pay and initiate a proceeding to terminate her employment as a member of the district's instructional staff. This action resulted from allegations that, in 2002, Mrs. Brenlla had been physically intimate with a 14-year-old boy who was, at the time, an eighth grade student at the middle school where she taught. In consequence of these allegations, Mrs. Brenlla previously had been arrested and prosecuted on various criminal charges relating to sexual battery of a child. She had not, however, been convicted of these serious felonies, having accepted a plea agreement requiring her to plead guilty to a misdemeanor and stay out of the classroom for one school year.
Mrs. Brenlla timely requested a formal administrative hearing to contest Petitioner's action. On December 3, 2009, the matter was referred to the Division of Administrative Hearings ("DOAH") for further proceedings. Thereafter, on December 18, 2009, the School Board filed its Notice of Specific Charges.
At the final hearing, which took place on June 10, 2010, Petitioner called the following witnesses: J. B.; Detective Kurtis Lueck; Illeana Caballero; Maria Annone; and Susan
Gonzalez. Petitioner's Exhibits 1-12 and 14-32 were received in evidence. Mrs. Brenlla testified on her own behalf and called Angel Velez-Diaz, Ph.D., as a witness. Respondent's Exhibits 1-
12 were admitted into evidence.
The final hearing transcript, comprising two volumes, was filed on July 27, 2010. On August 2, 2010, a Joint Notice of Filing was submitted, to which were attached several documents showing the days that Mrs. Brenlla worked during the summer of 2002. This paperwork, which the parties stipulated is true and correct, was received in evidence. Each party timely filed a Proposed Recommended Order before the established deadline of August 16, 2010.
Unless otherwise indicated, citations to the Florida Statutes refer to the 2010 Florida Statutes.
Parties.
The Miami-Dade County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System.
Respondent Mariella Brenlla ("Brenlla") holds a Florida Educator Certificate. She is certified in Emotionally Handicapped, Reading, and Educational Leadership. Brenlla also holds a National Board of Education certification in exceptional
needs. She was employed as a teacher in the Miami-Dade County Public School System for nearly 18 years, from 1992 until November 2009, at which time the School Board suspended her without pay and gave notice that it intended to dismiss her for cause, giving rise to the instant proceeding. During the 2001- 02 school year, which is the period relevant to this case, Brenlla taught students who, having been diagnosed as Severely Emotionally Disturbed ("SED"), received special education services in the Exceptional Student Education ("ESE") program at Ponce de Leon Middle School ("Ponce de Leon").
Allegations and Investigation.
In May 2006, a former ESE student of Ponce de Leon named J. B. sent Brenlla an e-mail inviting her to attend his high school graduation. Although she had not heard from him in nearly four years, Brenlla knew J. B. because she had been his "confidant" (her word) during the better part of 2002; their relationship, the nature of which is at the heart of the instant dispute, had begun when J. B. was a 14-year-old eighth grader who attended class in a room adjacent to Brenlla's, and ended about midway through J. B.'s freshman year of high school. Brenlla did not reply to the electronic invitation, and she did not go to J. B.'s graduation ceremony.
On October 23, 2006, J. B. sent Brenlla another e-mail.
In this message, J. B. demanded that Brenlla call him "ASAP" on
a matter of "the utmost importance." He added, "I have terrible news for you." Concerned, Brenlla called. When they spoke, J.
B. told Brenlla that he wanted to see her. Brenlla expressed her unwillingness to meet with J. B. Then J. B. revealed the "terrible news": he was thinking about disclosing that he and Brenlla had had a sexual affair in 2002. Brenlla instructed J.
B. not to call or contact her again.
J. B. did not accede to Brenlla's directive. He sent more e-mails, and placed more phone calls to Brenlla. On October 24, 2006, Brenlla filed a report with the Miami-Dade Schools Police, complaining that J. B. had made threatening comments to her, such as "start saying goodbye to your family."
On November 2, 2006, J. B. filed a complaint with the Coral Gables Police Department, alleging that, in 2002, while he was in middle school and, later, high school, he and Brenlla had been involved in a consensual sexual relationship which had begun shortly after spring break and continued until around December. On November 16, 2006, J. B. gave a sworn statement that detailed the numerous and diverse sexual activities in which, he claimed, he and the teacher had engaged.
The police commenced an investigation. On November 21, 2006, the detective in charge directed J. B. to place a telephone call to Brenlla, which the police would record, in hopes that J. B. might coax Brenlla into making some
incriminating comments. The controlled call was made but failed to produce any unambiguously inculpatory remarks. During the brief conversation, Brenlla neither admitted nor denied the existence of a previous sexual relationship; her unremarkable responses to J. B.'s questions can be construed as being consistent with either possibility. In sum, the digital recording of this call, which is in evidence, is not probative one way or the other.
Another attempt to trick Brenlla into incriminating herself was made a few months later. On February 6, 2007, the police equipped J. B. with a "wire" (some sort of recording device) and instructed him to approach Brenlla in the school parking lot, where he was supposed to initiate a conversation about their sexual relationship. This plan came a cropper because, rather than talk with J. B., who accosted Brenlla as she was getting into her car after work, Brenlla insisted that
J. B. leave the school premises (on which he was trespassing), and she called the school police.
Arrest and Prosecution.
On February 21, 2007, J. B. informed the police (for the first time) that Brenlla had a mole or freckle near her vagina. Armed with this information, the police eventually obtained a search warrant, which was issued on August 9, 2007. The warrant authorized detectives to inspect and photograph
Brenlla's pubic area. Law enforcement officers executed the warrant and, as the resulting pictures (which are in evidence) show, Brenlla does have a nondescript pigmented spot in the vicinity of her vagina. Soon after the service of the search warrant, Brenlla was arrested and charged with four felony counts of sexual battery on a minor.
The criminal prosecution of Brenlla ended when she entered into a Pre-Trial Diversion Program, which required that she plead guilty to a misdemeanor charge of child abuse (no harm) and agree not to take a classroom teaching position for the 2009-10 school year.1 Holding up its end of the bargain, the state entered a nolle prosequi on the felony charges. As far as the record in this case shows, Brenlla is no longer in jeopardy of being prosecuted for crimes she might have committed in connection with her relationship with J. B.
The Operative Historical Events.
Credibility and Weight of the Evidence. The operative historical facts——especially the nature of the relationship between Brenlla and J. B.——are sharply disputed. Moreover, the gravamen of the School Board's case being that Brenlla had sexual relations with an underage student, the conduct in question is the kind which occurs in private, unobserved by disinterested eyewitnesses. Resolving disputes of fact in a case such as this largely boils down to determining which of the
only two witnesses who really know for sure what happened is the more believable.
Having listened carefully to and closely observed J.
B. and Brenlla at final hearing, the undersigned found Brenlla to be, on balance, the better witness. For the most part, her demeanor was poised and professional; the content of her testimony (with a couple of significant exceptions) is reasonable; she seemed responsible and mature, her denials of wrongdoing sincere. The undersigned wanted to believe her, because the behavior of which she is accused is so reckless and outrageous (not to mention criminal), and she appeared to be none of those things.
J. B., in contrast, while appropriate in demeanor and articulate in speech (though glib at times), made a less favorable impression. In part this was because he occasionally came across as vindictive. But also, and more important, the content of J. B.'s testimony has elements that seem, on the surface at least, to be fictional or (as Brenlla contends) fantastic; that——coupled with the fact that J. B.'s story, like a snowball rolling downhill, has gotten bigger and gathered additional details as it moves forward through time——casts doubt on his veracity.
Were this case merely a "swearing contest" between Brenlla and J. B., therefore, Brenlla would have won. There
are, however, some pieces of circumstantial evidence that corroborate J. B.'s testimony and tip the balance in favor of his version of the relevant events. These will be discussed next.
J. B.'s Knowledge of Brenlla's Inconspicuous Mole. J.
B. told the police that Brenlla had a mole near her vagina, and this turned out to be true. Thus, either J. B. made a lucky guess, or he somehow had learned about this personal detail concerning Brenlla's body. The undersigned considers the first possibility to be too remote to credit: if J. B. were clever enough to gamble that Brenlla would be found to have a mark in her pubic area, he also would have been aware that sending the police on a wild goose chase which proved him wrong would leave his credibility in tatters.
More likely, therefore, is that J. B. knew about the mole, and the undersigned so finds. The question then is: how he know? The simplest (and hence most likely) explanations are:
(a) somebody with personal or secondhand knowledge told him; (b) he saw a photograph of Brenlla in a state of undress; or (c) he saw the mole in person. Brenlla's explanation that J. B. might have overheard her talking about the mole with another teacher, or on the phone making a waxing appointment, strikes the undersigned as highly implausible and is rejected.
Of the most obvious explanations for J. B.'s knowledge, the undersigned considers (c) above to be the likeliest possibility, notwithstanding that J. B. did not immediately tell the police about this crucial bit of information, because it is the simplest explanation for which, as will be seen, there is other credible evidence besides J. B.'s own testimony (the believability of which is the point presently under consideration). At bottom, the fact that J. B. knew about the mole near Brenlla's vagina is neither direct nor conclusive proof that he and she had a sexual relationship, as he claims; his knowledge of this intimate detail does, however, corroborate his testimony in this regard.
The Telephone Calls. Shortly before the final hearing, the School Board obtained from T-Mobile, U.S.A., Inc., via subpoena, the invoices for J. B.'s cell phone service for the period from May 25, 2002 to July 16, 2002, comprising 53 days (the "First Stage"); and the period from August 26, 2002 to October 12, 2002, comprising 48 days (the "Third Stage"). The evidence does not make clear why there were no invoices for the 40-day period running from July 17, 2002 to August 25, 2002. This middle period for which there are no phone service details will be called the "Second Stage".
The invoices show the date, time, and duration of calls to J. B.'s cell phone ("incoming calls"), and calls from
J. B.'s cell phone ("outgoing calls"). For each call, whether incoming or outgoing, the bills identify the other party's phone number. At hearing, Brenlla identified two telephone numbers which appear in the bills as being hers. One, she explained, was her home number (a landline), and the other she identified as her work number. Although Brenlla testified that J. B. and other students called her occasionally on her cell phone, she did not volunteer her cell phone number(s) for the relevant periods and was not pressed to do so; thus, no cell-to-cell phone calls are accounted for in the discussion that follows.
The undersigned has studied the invoices, and it is no exaggeration to say that they are the smoking gun. For what the bills show is that, during the 101 days they cover, Brenlla and
J. B. talked on the phone——a lot. The volume, frequency, duration, and timing of these conversations simply defy innocent explanation.
The records show that Brenlla and J. B. had approximately 197 conversations. (This does not include calls of one minute or less, which the undersigned interpreted as mere attempts; there were about 120 of those. Also, the undersigned counted multiple calls as a single conversation if they occurred in rapid sequence, as would happen if a call were dropped or momentarily interrupted from some other reason. Thus, a different reviewer might come up with different numbers at the
margins. The undersigned is highly confident, however, that the observations made herein are fair and accurate.)
Nearly 80 percent of the documented conversations, or
156 of them, took place during the First Stage, which corroborates J. B.'s testimony that this period corresponded to the most intense stage of his relationship with Brenlla. Combined, these conversations, which occurred during a period of
53 days, consumed approximately 1,451 minutes——about 24 hours in all. Brenlla initiated 138 of these conversations. In other words, Brenlla called J. B. about 88 percent of the time during the First Stage. The frequency of their contact is notable as well. During the First Stage, the pair talked on 46 of the 53 days covered by the bills.
The numbers drop significantly in the Third Stage, again corroborating J. B.'s testimony that the relationship began to unravel after he started high school in the fall. In this period there were 41 documented conversations comprising about 303 minutes. Brenlla initiated nearly three-quarters (30) of these calls, continuing the previous pattern of Brenlla being the one who, by far, most often made the first move. The two had conversations on 23 out of the 48 days in this period——a marked decrease in intensity relative to the First Stage.
Still, with a phone conversation occurring on average about every other day, the two remained in suspiciously close contact
by most reasonable measures, especially in view of the fact that
J. B. was now in high school and therefore would have few, if any, school-related reasons to talk regularly with a teacher at his old school.
Some further observations underscore the inculpatory nature of these documented calls. Many of them took place during non-business hours (before 9:00 a.m. and after 5:00 p.m.) and on weekends. Approximately 19 percent——nearly one in five—— occurred between 9:00 p.m. and midnight, hours during which a teacher rarely should have a legitimate pedagogical reason for calling a student. Another 26 percent, roughly, or about one quarter, of the conversations were held between 5:00 p.m. and 9:00 p.m. Five percent or so of the calls took place between 6:00 a.m. and 9:00 a.m. While the majority of the conversations
(102) took place on weekdays, of which 69 fell during the covered periods, the couple spent more time on the phone (957 minutes vs. 749 minutes) during the 29 weekend days than on regular workdays. There were, in addition, seven conversations totaling 48 minutes during three holidays, i.e. Memorial Day, Independence Day, and Labor Day.
Brenlla testified that she called J. B. because she was concerned about his transition to high school, which she asserted could be difficult for SED students such as J. B. to make, and because she had become J. B.'s confidant, someone he
trusted and with whom he could share his secrets. These explanations do not hold water and are rejected. The available records show that Brenlla was contacting J. B. almost literally around the clock, day and night, constantly, even on weekends and holidays. (Remember, too, that Brenlla's cell phone number was not disclosed; it is possible that the over-the-top degree of telephonic contact between her and J. B. as revealed above was in fact even higher. Moreover, there is no reason to suppose that Brenlla and J. B. stopped talking on the phone during the 40 days between the First Stage and the Third Stage. To the contrary, it is probable that there was a substantial amount of contact between the two during the Second Stage, for which records are not available.)
The telephone records do not prove the content of the conversations between Brenlla and J. B., nor do they establish that the two had a sexual relationship. The records are circumstantial evidence of a very close and probably intimate personal relationship, however, and as such they not only provide some independent support for the finding above regarding how J. B. likely came to know about Brenlla's mole, but also they corroborate J. B.'s testimony that he and Brenlla engaged in a consensual sexual affair.
The Affair. At the beginning of the 2001-02 school year, Brenlla administered a standardized test to determine
J. B.'s abilities in reading, math, and basic humanities. This was how Brenlla first met J. B., who was at the time a 14-year- old, eighth grade SED student in the ESE program at Ponce de Leon. Though J. B. was not one of Brenlla's students, his teachers' (he had two) classroom was next door to the classroom in which Brenlla and another teacher taught their SED students.
As the school year progressed, Brenlla became better acquainted with J. B. because he and other SED students occasionally would visit her classroom during the "free period," usually on Fridays, when ESE students who had completed their assignments and otherwise behaved themselves were rewarded with time to enjoy nonacademic activities. Brenlla taught J. B. how to play chess, and he assisted her with classroom chores.
The relationship between Brenlla and J. B. became increasingly personal. One Friday shortly after spring break, Brenlla invited J. B. to have an online conversation with her that night via instant messaging. He agreed. An IM chat was attempted but failed due to computer problems, forcing J. B. and Brenlla to communicate by telephone. This led to a lengthy session of "phone sex."
Thereafter, Brenlla and J. B. became physically intimate. J. B. testified that he and Brenlla engaged in a variety of foreplay in Brenlla's classroom. J. B. claimed that these encounters occurred before class, at lunchtime, and after
school, two or three times a day, nearly every day. The undersigned, however, credits Brenlla's testimony regarding the unlikelihood of this much contact going unnoticed, given the proximity of other adults, the fact that the SED classrooms were never locked, and the generally high level of supervision to which SED students are subjected. J. B.'s account more likely than not is exaggerative.
Nevertheless, even after discounting J. B.'s testimony for probable embellishments, the undersigned finds that, more likely than not, Brenlla and J. B. found ways to engage in furtive kissing and petting in moments when no one was around. While such moments probably did not arise as frequently as J. B. recalls, it is likely (and thus found) that the couple grabbed opportunities to disappear briefly from time to time.
J. B. testified that he and Brenlla frequently engaged in oral sex (fellatio and cunnilingus) in her car after school. While some aspects of J. B.'s testimony in this regard are difficult to believe——such as that Brenlla sometimes parked her car in residential neighborhoods, where the two would engage in oral sex and, on occasion, nearly be caught——the undersigned considers it likely, and finds, that, among other sexual activities, J. B. and Brenlla performed oral sex on one another many times inside her vehicle.
J. B. testified that he and Brenlla often had "phone sex." J. B. did not define "phone sex," but the undersigned reasonably infers, from the totality of J. B.'s testimony and the plain meaning of the term, that the phone sex in question entailed conversations having explicit sexual or erotic content. The undersigned credits J. B.'s testimony in this regard, which is corroborated by the cell phone bills discussed above, and finds that Brenlla had phone sex with J. B. on numerous occasions.
J. B. claimed that he and Brenlla engaged in sexual activities in his apartment, and that it was at this location that they had anal and vaginal intercourse, but only a few times. J. B. testified that these trysts occurred during the day when his father was at work and his mother out running errands. J. B.'s mother, however, testified that she saw Brenlla leaving the apartment on some occasions, and was aware that her son was involved in a sexual relationship with the teacher. The undersigned doubts the reliability of the mother's testimony but finds that, more likely than not, Brenlla visited
J. B. at his apartment once or twice and had sexual intercourse with him there.
The sexual affair between Brenlla and J. B. continued through the summer months following the 2001-02 school year and even after J. B. started high school in the fall of 2002.
Gradually, though, the relationship began to fizzle out. With
J. B. attending a different school, the two saw each other less frequently, and they began to fight and argue on the phone. In or around December 2002, Brenlla expressed her desire to end the relationship. The two would have no more contact for nearly four years, until May 2006, when (as found above) J. B. sent Brenlla an e-mail asking her to come to his high school graduation.
Determinations of Ultimate Fact
The greater weight of the evidence establishes that Brenlla engaged in a consensual sexual relationship with a 14- year-old SED student that lasted for more than six months and included numerous instances of intimate physical contact in addition to many hours of documented telephonic contact. Based on this course of conduct, it is determined that Brenlla is guilty of the offense of immorality as defined in Florida Administrative Code Rule 6B-4.009(2).
CONCLUSIONS OF LAW
DOAH has personal and subject matter jurisdiction in this proceeding pursuant to Sections 1012.33(6)(a)2., 120.569, and 120.57(1), Florida Statutes.
A district school board employee against whom a disciplinary proceeding has been initiated 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, policy, or collective bargaining provision] the [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).
Once the school board, in its notice of specific charges, has delineated the offenses alleged to justify termination, those are the only grounds upon which dismissal may be predicated. See Lusskin v. Agency for Health Care Administration, 731 So. 2d 67, 69 (Fla. 4th DCA 1999); Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Klein v. Department of Business and Professional Regulation, 625 So. 2d 1237, 1238-39 (Fla. 2d DCA 1993); Delk v. Department of Professional Regulation, 595 So. 2d 966, 967 (Fla. 5th DCA 1992); Willner v. Department of Professional Regulation, Board of Medicine, 563 So. 2d 805, 806 (Fla. 1st DCA 1990), rev. denied, 576 So. 2d 295 (Fla. 1991).
In an administrative proceeding to suspend or dismiss a member of the instructional staff, the school board, as the charging party, bears the burden of proving, by a preponderance of the evidence, each element of the charged offense(s). See McNeill v. Pinellas County School Bd., 678 So. 2d 476, 477 (Fla.
2d DCA 1996); Sublett v. Sumter County School Bd., 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995); MacMillan v. Nassau County
School Bd., 629 So. 2d 226 (Fla. 1st DCA 1993).
The instructional staff member's guilt or innocence is a question of ultimate fact to be decided in the context of each alleged violation. McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995).
Pursuant to Section 1012.33(6)(a), Florida Statutes, the School Board is authorized to suspend or dismiss
[a]ny member of the instructional staff . .
. at any time during the term of [her employment] contract for just cause . . . .
The district school board must notify the employee in writing whenever charges are made against the employee and may suspend such person without pay; but, if the charges are not sustained, the employee shall be immediately reinstated, and his or her back salary shall be paid.
(Emphasis added.) The term "just cause" includes, but is not limited to, the
following instances, as defined by rule of the State Board of Education: immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude.
§ 1012.33(1)(a), Fla. Stat.
In its Notice of Specific Charges filed on December 18, 2009, the School Board advanced five theories for terminating Brenlla's employment: Misconduct in Office (Count I); Immorality (Count II); Violation of School Board Policy Prohibiting Intimate Employee-Student Relationships (Count III); Unseemly Conduct in Violation of School Board Policy (Count IV); and Violation of School Board Policy Establishing a Code of Ethics (Count V).
The findings of fact in this case obviate the need for legal analysis. It goes without saying that where, as here, a teacher has engaged in a sexual relationship with a 14-year-old boy who, in addition to being underage, was identified as Severely Emotionally Disturbed, the district school board has just cause to dismiss the teacher. There is no reason to belabor this point.
Administrative Code Rule 6B-4.009(2) provides as
follows:
Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct 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.
Based on the findings of fact herein, it is self- evident that Brenlla is guilty of immorality; the undersigned so concludes without further comment.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order terminating Mariella Brenlla's employment in the Miami-Dade County Public School System.
DONE AND ENTERED this 18th day of October, 2010, in Tallahassee, Leon County, Florida.
JOHN G. VAN LANINGHAM
Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 2010.
1/ The School Board has not sought to dismiss Brenlla based on this conviction.
Christopher J. La Piano, Esquire Miami-Dade County School Board
Mark Herdman, Esquire Herdman & Sakellarides, P.A.
29605 U.S. Highway 19 North, Suite 110
Deborah K. Kearney, General Counsel Department of Education
Dr. Eric J. Smith, Commissioner Department of Education Turlington Building, Suite 1514
Alberto M. Carvalho, Superintendent Miami-Dade County School Board
1450 Northeast Second Avenue, No. 912
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.
