STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PALM BEACH COUNTY SCHOOL BOARD,
vs.
Petitioner,
Case No. 16-2608TTS
EDWARDO ZAMORA,
Respondent.
/
RECOMMENDED ORDER
A hearing was conducted by video teleconference in this case pursuant to sections 120.569 and 120.57(1), Florida Statutes (2016),1/ before Cathy M. Sellers, an Administrative Law Judge ("ALJ") of the Division of Administrative Hearings ("DOAH"), on February 21 and 22, 2017, at sites in Tallahassee and West Palm
Beach, Florida.
APPEARANCES
For Petitioner: Jean Marie Middleton, Esquire
School Board of Palm Beach County Office of General Counsel
3300 Forest Hill Boulevard, Suite C-323 Post office Box 19239
West Palm Beach, Florida 33416-9239
For Respondent: Mark Wilensky, Esquire
Dubiner and Wilensky, LLC
1200 Corporate Center Way, Suite 200
Wellington, Florida 33414-8594
STATEMENT OF THE ISSUE
The issue is whether just cause exists for Petitioner to suspend Respondent from his teaching position without pay for
15 days and to terminate his employment as a teacher.
PRELIMINARY STATEMENT
On or about April 6, 2016, Petitioner took action to suspend Respondent from his teaching position without pay for 15 days and to terminate his employment as a teacher. Respondent timely requested an evidentiary hearing pursuant to sections 120.569 and 120.57(1) to challenge Petitioner's proposed agency action. On or about May 12, 2016, Petitioner served and filed its Petition. The matter was referred to DOAH for assignment of an ALJ to conduct the hearing.
The final hearing initially was set for June 21, 2016; however, because the 2015-16 school year had ended and key witnesses were unavailable, the hearing was continued until October 2016. Thereafter, the hearing was continued to accommodate Respondent's counsel's observance of a religious holiday, and to enable the parties to resolve discovery-related matters (addressed in detail in the Order Granting Continuance dated November 4, 2016). The final hearing was ultimately scheduled for, and held on, February 21 and 22, 2017.
Petitioner presented the in-person testimony of Shawn McCall, Silvia Gonzalez, student S.G., Respondent, and Dr. Mary
Stratos, and presented the deposition testimony of student R.C.2/ Petitioner tendered Sergeant Jose Negron as a witness in its rebuttal case but the undersigned did not allow him to testify3/; Petitioner proffered Negron as a witness to preserve its tender for the record. Petitioner's Exhibits 4 through 7, 10 through 13,4/ 34, 40, and 41 were admitted into evidence over objection, and Petitioner's Exhibits 14 through 17, 21, 36, and 37 were admitted into evidence without objection. The undersigned took official recognition of Petitioner's Exhibits 18 through 20.
Respondent testified on his own behalf and presented the testimony of students C.W., I.D., and V.A.; Stratos; and
Captain Ezra Dilbert. Respondent did not tender any exhibits for admission into evidence.
The three-volume Transcript was filed at DOAH on March 16, 2017, and the parties were given until March 27, 2017, to file their proposed recommended orders. The parties timely filed their proposed recommended orders, which were duly considered in preparing this Recommended Order.
FINDINGS OF FACT
The Parties
Petitioner, Palm Beach County School Board, is charged with the duty to operate, control, and supervise free public schools within the School District of Palm Beach County
("District"), pursuant to article IX, section 4(b) of the Florida Constitution and section 1012.33, Florida Statutes.
Respondent has been employed by Petitioner as a teacher with Petitioner since 2008. During the timeframe relevant to this proceeding,5/ Respondent was employed as a teacher at Forest Hill High School ("Forest Hill"). He taught the Theatre I, II, III, and Theatre I IB classes (collectively, the "drama classes") and the Speech and Debate classes, and was the faculty sponsor for the school's drama club.
Respondent has not previously been subject to discipline by Petitioner, and the evidence shows that he consistently received high performance evaluations and was a popular teacher with the students at Forest Hill.
Administrative Charges
On or about April 6, 2016, Petitioner took action to suspend Respondent for 15 days without pay and to terminate his employment as a teacher. Respondent timely challenged Petitioner's action by requesting an administrative hearing pursuant to sections 120.569 and 120.57(1).
The factual bases for the administrative charges against Respondent are set forth in paragraph 10 of the Petition, which constitutes the administrative charging document in this proceeding. Paragraph 10 alleges: "[o]n or about
May 14, 2015, it was reported that Respondent interacted
inappropriately and made inappropriate comments to students in his drama class."
The Petition does not identify the time frame in which the conduct referenced in paragraph 10 is alleged to have occurred, nor does it specifically describe the conduct in which Respondent is alleged to have engaged that would violate the rules and policies cited in the Petition.
Based on the facts alleged in paragraph 10 of the Petition, Petitioner has charged Respondent with violating the following: Florida Administrative Code Rules 6A-5.056(2), 6A- 10.080(2), and 6A-10.081(3); School Board Policy 0.01(2), (3),
and (6); School Board Policy 1.013(1); School Board Policy 3.02(4)(a), (b), (d), (e) and (5)(a); School Board Policy 3.27; and School Board Policy 5.81(10)(c).6/
If proved, the alleged violations of these rules and policies would constitute just cause under section 1012.33 to suspend Petitioner and terminate his employment as a teacher.
Events Giving Rise to This Proceeding
In March 2015, R.H., a student at Forest Hill, reported to Shawn McCall, a teacher at Forest Hill, that Respondent had engaged in what McCall characterized as "inappropriate" behavior with respect to another student, S.G. R.H. also relayed to McCall that S.G. had told her that Respondent was having a sexual relationship with another student, C.W.
According to McCall, R.H. was emotionally distraught as she relayed this information to McCall. However, the evidence shows that R.H. did not have any personal knowledge regarding any of the matters she reported to McCall; rather, she relayed to him what she had been told by S.G. R.H. did not testify at the final hearing.
McCall did not have personal knowledge of any of the matters that R.H. relayed to him.
McCall reported the information he had received from
R.H. to Dr. Mary Stratos, the principal of Forest Hill.
Thereafter, Stratos spoke with R.H., who relayed to her that Respondent "may have been inappropriately touching" S.G.
Pursuant to protocol, Stratos contacted the Palm Beach County School Police Department ("School Police"), which conducted an investigation of the matters relayed by R.H. The School Police interviewed students and teachers who witnessed, or may have witnessed, matters germane to the investigation.
Stratos did not have personal knowledge of any of the matters about which R.H. told her.7/
As a result of the School Police investigation, Petitioner took action to suspend Respondent without pay for
15 days and to terminate his employment as a teacher.
Evidence Regarding Factual Allegations in Petition
As discussed above, the Petition does not provide any detail or specificity regarding the type or nature of the "inappropriate" interactions in which Respondent allegedly engaged, or the "inappropriate comments" Respondent allegedly made, with respect to the students in his drama class.
From the evidence presented at the final hearing, the undersigned gleans8/ that Petitioner has charged Respondent with making sexually-suggestive comments and jokes to, and making verbal sexual advances toward, students in his classes and in drama club; making physical sexual advances toward three students9/; and having a sexual relationship with one10/ of those students.11/
Student S.G.
S.G., a former student in Respondent's drama classes, testified at the final hearing. S.G. was a student in Respondent's drama classes in the 2013-14 school year, when he was a junior, and the 2014-15 school year, when he was a senior.
S.G. also was a member of the drama club for all of his junior year and part of his senior year.
S.G. testified that Respondent engaged in verbal and physical sexual advances toward him during both years in which he was a student in Respondent's classes and was a member of the drama club.
Specifically, S.G. testified that during both years, Respondent would constantly ask him how large his penis was in front of the entire class, loudly enough for others to hear. He also testified that Respondent would comment on his appearance openly in class, telling him that he looked "cute," and that Respondent would frequently look at him in a sexually-suggestive manner while biting his lower lip and sticking out his tongue.
S.G. also testified that during both years, during drama class and in drama club rehearsals, Respondent often would get very close to his face, sniff his neck, and try to kiss him. On cross-examination, S.G. characterized the frequency of Respondent's attempts to kiss him and sniff his neck as occurring "daily" or "every other day, at least." Also on cross- examination, S.G. asserted that Respondent's behavior was open and obvious "to everyone," including to persons passing in the hallway when Respondent engaged in such conduct while standing in the doorway of his classroom.
S.G. also testified that during his junior year, Respondent sniffed his neck and bit his nipple as he and another student were moving a platform from center stage following a drama club rehearsal. According to S.G., the other student moving the platform was the only witness (other than Respondent) to the incident. That student did not testify at the final hearing.
Additionally, S.G. testified that during his senior year, Respondent "cupped" his genitals on one occasion12/ as he held the auditorium door for female drama club students, and that after this incident, he quit participating in the drama club.
S.G. testified that he heard Respondent frequently make sexual comments to students R.C. and C.W. in drama class and during drama club rehearsals, and he often saw Respondent try to kiss students R.C. and C.W. S.G. testified that Respondent engaged in this conduct frequently, in front of everyone in drama class and during drama club rehearsals.
S.G. also testified that he heard Respondent and C.W. exchange sexual jokes, engage in sexually explicit discussions, and call each other "pet" names "all the time." Additionally,
S.G. testified that one day, he saw Respondent and C.W. come to a pep rally "together" and sit together, and also that they were "just together constantly." On these bases, he surmised that Respondent and C.W. were engaged in a sexual relationship.
S.G. testified that he did not report Respondent's conduct to anyone because he was embarrassed and thought that no one would believe him because Respondent was a popular teacher. He also testified that he was concerned that if he reported Respondent's conduct, school authorities would find out that he was attending Forest Hill instead of the school (Wellington) for which his actual place of residence was zoned.
When asked why he chose to take a second year of Respondent's drama class after Respondent purportedly had engaged in the conduct that he claimed, S.G. testified that he took the drama course in his senior year because it was an easy class in which you could get an A just for attending, that Respondent was a very lax teacher who let students play on their phones, and that some of his friends were in the class.
On or about March 5, 2015, S.G. told R.H. that Respondent had made verbal and physical sexual advances toward him and that Respondent was engaged in a sexual relationship with
C.W. As discussed above, R.H. relayed this information to McCall, who relayed it to Stratos. Shortly thereafter, the investigation leading to this proceeding was initiated.
Student R.C.
As previously discussed, student R.C.'s deposition was admitted into evidence when R.C. did not appear to testify at the final hearing despite having been subpoenaed by Petitioner.13/
R.C. was a student in Respondent's drama class in his freshman and sophomore years and was a member of the drama club.
R.C. initially testified that he had heard Respondent make "homosexual jokes," but then clarified that Respondent would, on occasion, compliment students, saying things like "you look nice today."
R.C. testified that he had heard Respondent and C.W. engaged in "homosexual jabber," but was unable to recall anything specific that he had heard Respondent and C.W. say to each other that constituted "homosexual jabber."
R.C. testified that S.G. had told him, in passing, that Respondent engaged in "homosexual jokes" with him and that S.G. was upset about it; however, R.C. testified that S.G. was mostly upset because Respondent gave preference to C.W. in assigning roles in the drama club plays. R.C. testified that S.G. felt that Respondent treated him unfairly by not giving him a more prominent role in a play being produced by the drama club, and that S.G. would become upset if Respondent corrected him on stage during rehearsals.
R.C. also testified that S.G. told him that Respondent had tried to kiss him (S.G.), but that again, it was in passing, and that S.G. mainly vented about how he was upset about learning lines in drama class.
R.C. testified that once during class, he had gone to Respondent with a personal issue, and that after Respondent listened and talked with him, Respondent tried to kiss him. However, R.C. subsequently clarified that Respondent had actually blown a kiss in a theatrical manner in R.C.'s direction as he went back to his seat.
R.C. stated that he had never had a problem with Respondent and that he liked him as a teacher.
Student C. W.
C.W. was a student in Respondent's drama class in his junior and senior years of high school, and also served as Respondent's teacher's aide in his senior year. He also was a member of the drama club in his junior and senior years.
In high school, C.W. aspired to be an actor. He is majoring in theater in college.
While in high school, Respondent functioned as C.W.'s mentor and would coach him on acting techniques after school, either in his classroom or in the auditorium. C.W. credibly testified that Respondent did not charge him for the tutoring, and that he never paid Respondent for tutoring.
C.W. credibly testified that his relationship with Respondent was strictly professional and related to acting.
C.W. credibly testified that he and Respondent did not have a personal relationship; that neither had visited each other's house; that they did not date; that Respondent had not made any sexual advances toward him or tried to kiss him; and that Respondent had never done anything to make him feel uncomfortable.
C.W. also credibly testified that he and Respondent did not engage in sexual discussions and did not call each other pet names.
C.W. confirmed that he had talked to Respondent at a school pep rally. Specifically, C.W. arrived at the pep rally separately and sought Respondent out, because, as C.W. put it, "I'd rather spend my time talking to him, if I could, about acting or something whenever I could instead of just watching a pep rally." C.W. testified that he stood, not sat, next to Respondent during the pep rally.
C.W. credibly testified that during his time as a student and teacher's aide in Respondent's classes and during drama club rehearsals, he never heard Respondent make inappropriate comments toward, engage in sexual discussions with, make verbal sexual advances toward, or otherwise engage in inappropriate conduct directed toward S.G., R.C., or any other students. He also never saw Respondent sniff any student's neck or embrace any student.
C.W. also credibly testified that during Respondent's classes, students were required to be engaged in school work related to theater and were not allowed to use their phones. To that point, C.W. noted that Respondent often would confiscate phones if the use of them was "getting out of hand."
C.W. also credibly testified that Respondent did not curse or participate in sexual joke-telling or banter, that he would not tolerate students making sexual jokes or cursing in his class, and that he would threaten discipline if they engaged in such conduct.
Student I.D.
I.D. was a student in Respondent's classes in her sophomore, junior, and senior years of high school, and she also served as Respondent's teacher's aide. She also was a member of the drama club.
In her junior year, she was in drama class with S.G., who also was a junior that year.
I.D. credibly testified that she had never seen Respondent act inappropriately toward S.G. She never saw Respondent try to kiss S.G. or get close to his face, nor did she ever see Respondent make overtures to any students in his class or in the drama club.
She also testified, credibly, that she never saw any conduct by Respondent directed toward C.W. that suggested a personal relationship between Respondent and C.W.
Student V.A.
V.A. was a student in Respondent's classes. She took four classes from him while attending Forest Hill.
During her junior and senior years, she took drama classes from Respondent. During both years, S.G. also was a student in those classes.
V.A. credibly testified that she sat close enough to
S.G. and Respondent to hear conversations between them, and that she never heard Respondent ask about S.G.'s penis size.
She never saw Respondent try to kiss S.G., embrace him or smell his neck, or otherwise engage in any inappropriate conduct toward him, and she never saw Respondent make any sexual advances toward any other students, including R.C. and C.W., in the classroom. Likewise, she never saw Respondent make sexual advances or otherwise engage in inappropriate conduct, or make inappropriate comments, directed toward S.G., R.C., C.W., or any other students in the drama club.
V.A. was friends with C.W. She credibly testified that she often was present when C.W. and Respondent were together and that she never heard them call each other pet names. Through her friendship with C.W. and her frequent interactions with Respondent and C.W., she did not believe that Respondent was any closer to C.W. than he was to other students in the class.
V.A. also credibly testified that while in Respondent's classes, students always were engaged in classwork, were not allowed to sit around and play on their phones, and, in fact,
were not permitted to have their phones out during Respondent's classes.
Respondent
Respondent credibly testified that he did not have a sexual interest in S.G. or C.W.
He also credibly testified that he never tried to kiss S.G., R.C., or C.W. He credibly denied having ever groped S.G., and he also credibly denied having bitten S.G. He denied having ever embraced any students or having smelled their necks.
Respondent credibly testified that he did not make sexual comments toward S.G., and he credibly denied having asked or joked about the size of S.G.'s penis or that of any other student.
Respondent tutored C.W. in theater after school, and he credibly testified that he was not paid for it. He also credibly testified that he did not call C.W. by pet names, and he credibly denied having anything other than a teacher-student academic mentoring relationship with C.W.
Clear and Convincing Evidentiary Standard
As discussed in greater detail below, the clear and convincing evidentiary standard applies to this proceeding.
This burden requires that:
[T]he evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must
be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
In re Davey, 645 So. 2d 398, 404 (Fla. 1994).
Findings Regarding Alleged Sexual Comments, Jokes, and Verbal Sexual Advances Toward Students
Petitioner has not shown, by clear and convincing evidence, that Respondent made sexual comments to, engaged in sexual jokes with, or made verbal sexual advances toward students in his drama classes or in the drama club.
S.G.'s testimony that Respondent constantly asked him how large his penis was and also made similar comments to R.C. and S.G.——frequently, loudly, and openly in class, where others could hear——during both years in which he was a student in Respondent's drama class, was not credible.
Not only did no other witness corroborate S.G.'s testimony, but the testimony of C.W., I.D., and V.A. flatly contradicted it. Those witnesses——who were students in Respondent's class, and, thus, in a position to hear and see any "constant," loud comments of a sexual nature——credibly and persuasively testified that they never heard Respondent make sexual comments, tell sexual jokes, or make verbal sexual advances to any members of the class, including S.G. Had
Respondent made these comments——particularly in the loud, frequent, open, and obvious manner to which S.G. testified——it is highly likely that these students would have heard them; yet all consistently and credibly denied having ever heard them.
Although R.C. initially testified that he heard Respondent make "homosexual" comments, he subsequently clarified that Respondent simply occasionally complimented students on their appearance. Additionally, although R.C. claimed to have heard Respondent and C.W. engage in "homosexual jabber," he was unable to specifically articulate anything that either Respondent or C.W. said that was, or could be considered, sexual or "homosexual" in nature.
Additionally, Respondent credibly and persuasively denied having made sexual comments to, engaged in sexual jokes with, or engaged in verbal sexual advances toward S.G. or any other student in his class or in the drama club.
The undersigned finds the testimony of C.W., I.D., V.A., and Respondent on these allegations credible and persuasive, while finding S.G.'s testimony incredible and unpersuasive. Further, R.C.'s testimony regarding hearing Respondent make "homosexual jokes" and engage in "homosexual jabber" was not precise, explicit, or distinctly remembered; rather, it was equivocal and non-specific.
In sum, the evidence does not clearly and convincingly establish that Respondent made sexual comments or jokes to, or made verbal sexual advances toward, the students in his drama classes and in the drama club.
Findings Regarding Alleged Physical Sexual Advances toward Students
The undersigned also finds incredible and unpersuasive S.G.'s testimony that Respondent would get close to his face, sniff his neck, and try to kiss him, and that Respondent engaged in similar conduct toward C.W. and R.C.
S.G. testified that Respondent directed this conduct toward him openly and obviously to everyone, on an almost daily basis. However, C.W., I.D., and V.A.——all of whom were in the drama class, drama club, or both, so were in a position to observe any such behavior——all unequivocally testified that they had never observed Respondent engage in any of those actions toward S.G. or any other students. Again, had Respondent engaged in this conduct——particularly in the loud, frequent, open, and obvious manner to which S.G. testified——it is highly likely that these students would have seen that conduct; yet, all persuasively and credibly testified that they never saw Respondent engage in such conduct.
S.G. also testified that on one occasion, Respondent bit him on the nipple, and that one other student (who did not
testify at the final hearing) witnessed it. Respondent credibly denied having engaged in this behavior.
The undersigned does not find S.G.'s testimony on this point credible or persuasive. To the contrary, the undersigned finds it far more likely that, had Respondent engaged in such behavior, S.G. would have told his mother, school authorities, or other students——and, most important——would not have voluntarily taken another drama class from Respondent the following year.14/ Furthermore, the undersigned finds Respondent's testimony that he did not bite S.G.'s nipple credible and persuasive.
S.G. also testified at the hearing that on one occasion during his senior year, Respondent had purposely groped his genitals. However, in his sworn statement made during the School Police investigation, S.G. stated that Respondent had "constantly" tried to kiss him and grab him in his "private area," and that Respondent had grabbed his genitals on more than one occasion——the latest occasion as recently as a week before
S.G. was interviewed as part of the investigation.
S.G.'s hearing testimony is patently inconsistent with his sworn statement on a material detail——i.e., the frequency with which he claims Respondent grabbed or attempted to grab his genitals. This inconsistency bears directly on S.G.'s credibility as a witness. Due to this obvious inconsistency on a key detail——one which cannot credibly be explained to mistake or
lapse of memory——S.G.'s testimony that Respondent grabbed his genitals is deemed incredible and unpersuasive. Further, the undersigned finds credible and persuasive Respondent's testimony that he did not ever grab S.G.'s genitals.
Although R.C. initially testified that Respondent tried to kiss him, he subsequently clarified that Respondent had, in fact, blown a "theatrical kiss" toward him as he returned to his seat after they had engaged in a discussion. This testimony does not clearly and convincingly establish that Respondent made a sexual advance toward R.C.
In sum, the evidence does not clearly and convincingly establish that Respondent made physical sexual advances toward S.G., R.C., C.W., or any other students in his drama class or in the drama club.
Findings Regarding Alleged Sexual Relationship with Student
The credible, persuasive evidence does not show that Respondent engaged in a sexual relationship with C.W.
S.G.'s testimony that he heard Respondent and C.W. engage in sexually explicit discussions, exchange sexual jokes, and call each other pet names "all the time" was directly contradicted by the credible, persuasive testimony of C.W. and Respondent, both of whom denied engaging in such conduct. Furthermore, I.D. and V.A.——both of whom were in Respondent's classes and in the drama club, so were often around both
Respondent and C.W.——persuasively and credibly testified that they never heard Respondent and C.W. engage in sexually explicit discussions, exchange sexual jokes, call each other pet names, or otherwise engage in inappropriate verbal or physical conduct toward each other.
Additionally, as previously discussed, although R.C. claimed to have heard Respondent and C.W. engage in "homosexual jabber," he was not able to specifically articulate anything that Respondent or C.W. said to each other that was, or could be considered, sexual or "homosexual" in nature.
The fact that Respondent and C.W. stood (or even sat) next to each other and talked to each other during a school pep rally——and that, consequently, S.G. and R.C. perceived them as a "couple"——is of no probative value in proving the existence of a sexual relationship between Respondent and C.W.15/ Indeed, the undersigned finds completely credible and persuasive C.W.'s testimony that he had gone to the pep rally separately, and found Respondent and stood by him specifically to talk to him about acting instead of watching the pep rally.
Respondent and C.W. both credibly and persuasively denied being involved in a sexual relationship, engaging in sexual jokes with each other, or calling each other pet names.
The evidence does not clearly and convincingly establish that Respondent engaged in a sexual relationship with C.W.
Findings of Ultimate Fact
It is well-established in Florida law that whether charged conduct constitutes a deviation from a standard of conduct established by rule or statute is a question of fact to be decided by the trier of fact, considering the testimony and evidence in the context of the alleged violation. Langston v. Jamerson, 653 So. 2d 489 (Fla. 1st DCA 1995); Holmes v.
Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985). See also
McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995);
MacMillan v. Nassau Cnty. Sch. Bd., 629 So. 2d 226 (Fla. 1st DCA 1993). Accordingly, whether alleged conduct violates the laws, rules, and policies set forth in the charging document is a factual, not legal, determination.
For the reasons addressed in detail above, the competent substantial evidence in the record does not clearly and convincingly establish that Respondent engaged in any of the conduct with which he was charged in the Petition.
Therefore, the undersigned finds, as a matter of ultimate fact, that Respondent did not violate the following rules and policies, as charged in the Petition: Florida Administrative Code Rules 6A-5.056(2), 6A-10.080(2), and 6A-
10.081(3); School Board Policy 0.01(2), (3), (4) and (6); School Board Policy 1.013(1); School Board Policy 3.02(4)(a), (b), (d),
(e) and (5)(a); and School Board Policy 5.81(10)(c).16/
Accordingly, the undersigned finds, as a matter of ultimate fact, that Petitioner did not show, by clear and convincing evidence, that there is just cause, as defined in section 1012.33(1)(a), to suspend Respondent without pay and terminate his employment.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties to, and subject matter of, this proceeding.
This is a de novo proceeding. This means that the purpose of this proceeding is to formulate final agency action, not review agency action taken earlier and preliminarily. Fla.
Dep't of Transp. v. J.W.C. Co., Inc., 396 So. 2d 778, 785 (Fla. 1st DCA 1981).
Findings of fact in this proceeding must be based on the competent substantial evidence in the record.
§ 120.57(1)(j) and (l), Fla. Stat. "Competency" of evidence refers to its admissibility under the rules of evidence.
Lonergan v. Estate of Budahazi, 669 So. 2d 1062, 1064 (Fla. 5th
DCA 1996). "Substantiality" of evidence requires that there be some material, pertinent, and relevant evidence having definite probative value as to the pertinent elements of the case. Id.
In administrative proceedings, hearsay evidence may be used for the purpose of supplementing or explaining other evidence in the record, but it is not sufficient, in itself, to support a finding of fact unless it would be admissible over objection in civil actions. § 120.57(1)(c), Fla. Stat. Stated another way, in this proceeding, hearsay evidence is not "competent" evidence for purposes of constituting the sole basis of a finding of fact unless it falls within an exception to the hearsay rule in sections 90.801 through 90.805, Florida Statutes.17/ See Fla. Admin. Code R. 28-106.213(3).
This is a disciplinary proceeding in which Petitioner seeks to suspend Respondent from his teaching position, without pay, for 15 days, and to terminate his employment as a teacher, for violating the following: rules 6A-5.056(2), 6A-10.080(2), and 6A-10.081(3); School Board Policy 0.01(2), (3), (4) and (6); School Board Policy 1.013(1); School Board Policy 3.02(4)(a), (b), (d), (e) and (5)(a); and School Board Policy 5.81(10)(c).
Respondent is an "instructional employee" as defined in section 1012.01(2). Pursuant to sections 1012.22(1)(f) and 1012.27(5), Petitioner is authorized to discipline him.
To suspend and terminate Respondent's employment, Petitioner must prove that Respondent committed the acts alleged in the Petition; that those acts violate the laws, rules, and policies cited in the Petition; and that the violation of these
laws, rules, and policies constitutes just cause for his dismissal. § 1012.33(1)(a), (6), Fla. Stat.
Ordinarily, the evidentiary burden in disciplinary proceedings in which a school board proposes to suspend or terminate instructional personnel is a "preponderance of the evidence." See, e.g., McNeill v. Pinellas Cnty. Sch. Bd., 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Dileo v. Sch. Bd. of Dade
Cnty., 569 So. 2d 883 (Fla. 3d DCA 1990). However, where, as
here, the school board has agreed through collective bargaining to a more demanding evidentiary standard, it must act in accordance with the applicable contract. See Chiles v. United Faculty of Fla., 615 So. 2d 671, 672-73 (Fla. 1993); Palm Beach
Cnty. Sch. Bd. v. Zedrick Barber, Case No. 15-0047 (Fla. DOAH Aug. 31, 2015; PBCSB Oct. 13, 2015).
Here, Article II, Section M of the Collective Bargaining Agreement provides that "disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action." Accordingly, Petitioner has the burden of proof in this proceeding by clear and convincing evidence.
As discussed above, this evidentiary standard requires that the evidence must be credible and the facts to which the witnesses testify must be distinctly remembered, precise, and
lacking in confusion. The evidence must be such that it produces, in the mind of the trier of fact, the firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established. See In re Davey, 645 So. 2d 398, 404 (Fla. 1994); Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th
DCA 1983).
Also as discussed above, whether Respondent committed the charged offenses is a question of ultimate fact to be determined by the trier of fact in the context of each alleged violation.
Section 1012.33(6)(a) states in pertinent part: "[a]ny member of the instructional staff, excluding an employee specified in subsection (4), may be suspended or dismissed at any time during the term of the contract for just cause as provided in paragraph (1)(a)."
Rule 6A-5.056(2)
Section 1012.33(1)(a) states in pertinent part: "[j]ust cause includes, but is not limited to, the following instances, as defined by rule of the State Board of Education:
. . . misconduct in office."
Rule 6A-5.056(2)18/ defines conduct that constitutes misconduct in office. The rule states:
"Misconduct in Office" means one or more of the following:
A violation of the Code of Ethics of the Education Profession in Florida as adopted in Rule 6A-10.080, F.A.C.;
A violation of the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6A- 10.081, F.A.C.;
A violation of the adopted school board rules;
Behavior that disrupts the student’s learning environment; or
Behavior that reduces the teacher’s ability or his or her colleagues’ ability to effectively perform duties.
Rule 6A-10.080(2)
Rule 6A-10.080(2), the Code of Ethics of the Education Profession in Florida,19/ provides:
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.
Rule 6A-10.081(3)
Rule 6A-10.081,20/ the Principles of Professional Conduct for the Education Profession in Florida, states in pertinent part:
Obligation to the student requires that the individual:
Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental and/or physical health and/or safety.
Shall not unreasonably restrain a student from independent action in pursuit of learning.
Shall not unreasonably deny a student access to diverse points of view.
Shall not intentionally suppress or distort subject matter relevant to a student’s academic program.
Shall not intentionally expose a student to unnecessary embarrassment or disparagement.
Shall not intentionally violate or deny a student’s legal rights.
Shall not harass or discriminate against any student on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition, sexual orientation, or social and family background and shall make reasonable effort to assure that each student is protected from harassment or discrimination.
Shall not exploit a relationship with a student for personal gain or advantage.
Shall keep in confidence personally identifiable information obtained in the course of professional service, unless disclosure serves professional purposes or is required by law.
School Board Policy 0.01
School Board Policy 0.01, titled "Commitment to the Student, Principle I," states in pertinent part:
In fulfilling his obligations to the student, the educator –-
* * *
Shall make reasonable effort to protect the student from conditions harmful to learning or to health and safety.
Shall conduct professional business in such a way that he does not expose the student to unnecessary embarrassment or disparagement.
* * *
6. Shall not use professional relationships with students for private advantage.
School Board Policy 1.013
School Board Policy 1.013, titled "Responsibilities of School District Personnel and Staff," states in pertinent part:
1. It shall be the responsibility of the personnel employed by the district school board to carry out their assigned duties in accordance with federal laws, rules, state statutes, state board of education rules, school board policy, superintendent's
administrative directives and local school and area rules.
School Board Policy 3.02
School Board Policy 3.02 is Petitioner's Code of Ethics. Section 4 of this policy provides in pertinent part:
4. Accountability and Compliance
To provide the best example possible; striving to demonstrate excellence, integrity and responsibility in the workplace.
To obey local, state and national laws, codes and regulations.
* * *
To treat all students and individuals with respect and to strive to be fair in all matters.
To create an environment of trust, respect and non-discrimination, by not permitting discriminatory, demeaning or harassing behavior of students or colleagues.
Section 5(a) of this policy states in pertinent part:
5. Ethical Standards
a. Abuse of Students – We are committed to ensuring that employee-student relationships are positive, professional and non- exploitative. We will not tolerate improper employee-student relationships. Each employee should always maintain a professional relationship with students, both in and outside of the classroom. Unethical conduct includes but is not limited to:
Committing any act of child abuse, including physical and verbal abuse.
Committing any act of cruelty to children or any act of child endangerment.
Using one’s professional relationship or authority with students for one’s personal advantage.
Engaging in, or being convicted of, a crime involving children as provided in Section 1012.315, Florida Statutes, as now or hereafter amended.
Engaging in any sexually related behavior with a student with or without consent of the student. Sexually related behavior shall include, but not be limited to, such behaviors as sexual jokes; sexual remarks; sexual kidding or teasing; sexual innuendo; pressure for dates or sexual favors; inappropriate physical touching, kissing, or grabbing; rape; threats of physical harm; sexual assault and any sexual act as provided for in Section 1012.315, Florida Statutes.
Engaging in bullying or harassing behavior on the basis of race, gender, sex, national origin, age, religion or disability, sexual orientation or gender identity in violation of School Board Policy
Nos. 5.001 (Protecting Students from Harassment and Discrimination);
5.81 (Protecting Students from Sexual Harassment and Discrimination), as now or hereafter amended; and 5.002 (Prohibition of Bullying and Harassment) as now or hereafter amended; or, in violation of any related federal or state laws.
Engaging in misconduct which affects the health, safety and welfare of a student(s).
Soliciting, encouraging, participating or consummating an inappropriate written, verbal, or physical relationship with a student.
Furnishing tobacco, alcohol, or illegal/unauthorized drugs to any student or allowing a student to consume alcohol, or illegal/unauthorized drugs, contrary to School
Board Policy Nos. 3.96 (Drug-and Alcohol-free Workplace) and 3.961 (Drug and Alcohol-free Workplace Policy for Employees Performing Safety-Sensitive Functions and Holders of Commercial Drivers Licenses), as now or hereafter amended.
School Board Policy 5.81
School Board Policy 5.81 is entitled "Protecting Students from Sexual Harassment and Discrimination." Subsection (10)(c) states in pertinent part:
10. Prohibited Sexual Harassment
* * *
c. Types of conduct which are prohibited in the District and which may constitute sexual harassment include, but are not limited to:
graphic verbal comments about an individual’s body or appearance;
sexual jokes, notes, stories, drawings, pictures or gestures;
sexual slurs; sexually-suggestive leering, threats, abusive words, derogatory comments; or sexually-degrading descriptions;
unwelcome sexual flirtations or propositions for sexual activity or unwelcome demands for sexual favors, including but not limited to repeated unwelcome requests for dates;
spreading sexual rumors;
touching an individual’s body or clothes (including one’s own) in a sexual way, including, but not limited to, grabbing, brushing against, patting, pinching, bumping, rubbing, kissing, and fondling;
cornering or blocking normal movements, or bullying;
displaying sexually suggestive drawings, pictures, written materials, and objects in the educational environment; or
any act of retaliation against an individual who reports a violation of the Board's sexual harassment Policy or participates in the investigation of a sexual harassment complaint.
As discussed above, the undersigned found that Petitioner did not prove, by clear and convincing evidence, that Respondent interacted inappropriately and made inappropriate comments to students in his drama class, as charged in the Petition, and pursuant to the competent substantial evidence presented at the hearing. Accordingly, it is concluded that Respondent did not violate any of the rules and policies that were charged in the Petition.
Therefore, it is determined that there is not just cause, pursuant to section 1012.33(1)(a) and (6)(a), to suspend Respondent without pay and terminate his employment as a teacher.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Palm Beach County School Board, enter a final order dismissing the charges against Respondent, reinstating his employment as a teacher, and awarding
him back pay to the date on which he was first suspended without
pay.
DONE AND ENTERED this 24th day of April, 2017, in
Tallahassee, Leon County, Florida.
S
CATHY M. SELLERS
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 2017.
ENDNOTES
1/ All references to provisions in chapter 120, Florida Statutes, are to the 2016 version of that statute. All references to section 1012.33, Florida Statutes, are to the 2013 and 2014 versions, which were in effect at the time of the alleged conduct that resulted in this proceeding. Section 1012.33 was not amended in the 2013 or 2014 legislative sessions, so the 2013 and 2014 versions of this statute are the same.
2/ Petitioner subpoenaed R.C. to testify at the final hearing, but he did not appear. Because Petitioner was unable to procure R.C.'s attendance to testify at the final hearing despite having subpoenaed him to appear, the undersigned admitted R.C.'s deposition into evidence under Florida Rule of Civil Procedure 1.330(a)(3)(D). See W.M. v. Dep't of HRS, 553 So. 2d 274, 276-77
(Fla. 1st DCA 1989); Johns-Manville Sales Corp. v. Janssens, 463 So. 2d 242, 259 (Fla. 1st DCA 1984). Additionally, because R.C. was "unavailable," as that term is defined in section 90.804(1)(e), Florida Statutes, R.C.'s deposition testimony falls
within the "former testimony" hearsay exception codified in section 90.804(2)(a).
3/ The undersigned did not allow Negron to testify because he had not been disclosed by Petitioner as a witness before the hearing. To this point, it was represented at the hearing that Petitioner's party representative, Stratos, had remembered, after hearing C.W. testify, that she had been told by Negron that he had seen Respondent and C.W. together outside of the school setting. Given that Petitioner, through its party representative, had access to and knowledge of the information about which Negron would testify before the hearing but did not disclose him as a witness, it would have been patently unfair to allow Negron to testify.
Further, Petitioner intended to call Negron to impeach the credibility of the testimony of C.W. on the point that he and Respondent did not have contact with each other outside of the school setting. Section 90.608, which governs impeachment of witnesses, states in pertinent part: "[a]ny party, including the party calling the witness, may attack the credibility of a witness by: . . . (5) [p]roof by other witnesses that material facts are not as testified to by the witness being impeached.
§ 90.608(5), Fla. Stat. (2016)(emphasis added). Case law makes clear that an issue is collateral——and, therefore, not the proper subject of impeachment by extrinsic evidence——if it is not being introduced for any other reason than to contradict. See Jeancharles v. State, 25 So. 3d 656, 657 (Fla. 4th DCA 2010);
Griffin v. State, 827 So. 2d 1098, 1099 (Fla. 2d DCA 2002);
Lawson v. State, 651 So. 2d 713, 715 (Fla. 2d DCA 1995). Here, Negron's testimony would have been introduced for the sole purpose of contradicting C.W.'s testimony that he and Respondent did not have contact outside of the school setting. Pursuant to section 90.608(5), C.W.'s testimony on this point was not the proper subject of impeachment. Therefore, Negron's testimony was excluded.
4/ Respondent did not object to the admission of Petitioner's Exhibits 10 through 12 on authenticity grounds, but expressly preserved his objection to any hearsay that may be contained in those documents.
5/ From the evidence adduced at the final hearing, it appears that the pertinent time frame over which Respondent is alleged to have engaged in the conduct giving rise to this proceeding consisted of the 2013-14 and 2014-15 school years. See paragraph 18, infra.
6/ The Petition also alleges that Respondent's alleged conduct violates School Board Policy 3.27 and the Collective Bargaining Agreement Between the School District of Palm Beach County, Florida, and the Palm Beach County Classroom Teachers Association Article II, Section M. As discussed in greater detail below, these provisions do not establish any substantive conduct, behavioral, or other standards to which teachers must adhere; rather, they establish the process and procedures that Petitioner must follow in imposing discipline for violation of substantive rules and School Board policies. Accordingly, these provisions cannot form the basis for imposing discipline on Respondent. See note 16, infra.
7/ Stratos also testified about certain other events that had been brought to her attention during the investigation. She acknowledged that she did not have personal knowledge about these events, but that she only knew what she had been told by others. Under section 90.604, her testimony may not be used in this proceeding to prove the matters about which she did not have personal knowledge.
8/ It is questionable whether the factual allegations in the Petition that the Respondent "interacted inappropriately" and made "inappropriate comments" are sufficient to place Respondent on notice regarding the specific nature of the conduct with which he is charged, for purposes of preparing his defense. See Trevisani v. Dep't of Health, 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005)(licensee respondent could not be disciplined for an offense not specifically identified in the administrative complaint). To that point, many, if not most, of the rules and policies that establish standards governing teacher conduct are specifically aimed at proscribing "inappropriate" conduct, so charging Respondent with "inappropriate" interactions and comments does not, with any meaningful specificity, describe or identify the conduct with which Respondent is charged. In this case, an investigation was conducted, reports and summary documents were prepared, a predetermination meeting was held, and extensive discovery was conducted. It is apparent that through this process——which took place over an almost two-year period from the time Respondent was first suspended until the final hearing was held——Respondent became informed as to the specific nature of the conduct with which he is charged in this proceeding. Although the parties apparently had a mutual understanding regarding the specific conduct with which Respondent is charged, the language of the charging document itself does not provide any specific description or detail regarding the alleged "inappropriate" interactions and "inappropriate" comments. This practice makes it more difficult for the ALJ to clearly discern the nature of
the conduct with which the Respondent is charged for purposes of determining whether applicable rules and policies have been violated. It also results in the absence of specific, express limits on the scope of the section 120.57(1) de novo proceeding. In fact, Petitioner appears to acknowledge this in footnote 2 of its Proposed Recommended Order ("PRO"). It is noted, however, that Respondent did not file a motion for more definite statement, and it is further noted that at the final hearing, Respondent stated that he had previously received notice of the specific conduct in which he was alleged to have engaged and the rules and policies he was charged with violating.
9/ The evidence adduced at the hearing identified these students as S.G., R.C., and C.W.
10/ The evidence adduced at the hearing identified C.W. as the student with whom Respondent is alleged to have engaged in a sexual relationship.
11/ Testimony was elicited at the hearing on other matters, such as whether Respondent cursed or used profanity in his classes and in the drama club; whether Respondent followed proper protocol in riding with student S.G. in his vehicle during school hours to take the vehicle to S.G.'s father's auto repair shop; or whether Respondent followed established protocol in tutoring C.W. after school. These matters were not specifically charged in the Petition, so have been treated as collateral to the charges that Petitioner is pursuing in this proceeding. In any event, Petitioner did not prove, by clear and convincing evidence, that Respondent cursed or used profanity in his classes or in the drama club; that he violated proper protocol in riding with student S.G. in his vehicle during school hours to take the vehicle to S.G.'s father's auto repair shop; or that Respondent violated established protocol in tutoring student C.W. after school. To this last point, no evidence was presented to show what such protocol (to the extent one exists) entailed, so the undersigned was not able to determine in this de novo proceeding whether Respondent violated any such protocol.
12/ However, S.G. gave a sworn statement as part of the School Police Department investigation in which he told investigators that Respondent "constantly" tried to grab his "private area" and that Respondent grabbed his genitals on more than one occasion.
This statement has not been assigned weight for purposes of establishing the truth of the matter asserted in the statement, but has been considered in determining the credibility of S.G.'s testimony at the final hearing. See paragraph 76, infra.
13/ See note 2, supra.
14/ Notably, the evidence establishes that S.G. did not tell his mother, school authorities, or other students that Respondent bit him on the nipple. Given the extremely serious and harassing nature of the conduct in which S.G. claims Respondent engaged, the undersigned does not find credible S.G.'s explanation that he did not report Respondent's conduct because no one would believe him and because he was afraid he would be forced to leave Forest Hill. The undersigned also found the testimony of S.G.'s mother incredible and unpersuasive——particularly on the point that S.G. had told her that Respondent frequently made sexual advances toward him but that she had nonetheless chosen not to report that conduct, and then had allowed S.G. to voluntarily enroll in Respondent's drama class the following year.
15/ An at least equally reasonable inference is that Respondent's and C.W.'s conduct at the pep rally was indicative of nothing more than a teacher-student or mentor-mentee relationship.
Further, the subjective assumptions of S.G. and R.C. regarding the existence of a sexual relationship between Respondent and
C.W. have absolutely no probative value in proving the existence of such a relationship.
16/ As noted above, School Board Policy 3.27, titled Suspension and Discipline of Employees, establishes Petitioner's process and procedures for suspending and terminating employees. Collective Bargaining Agreement Article II, Section M, constitutes Petitioner's Progressive Discipline Policy. This policy establishes the requirements for presenting information that may be relied on to take disciplinary action; grants the employee the right to review and refute such information; establishes the types of discipline that may be imposed upon a determination of just cause; and prescribes the types of discipline that may be imposed and the circumstances under which each type of discipline may be imposed. Because the provisions do not prescribe substantive conduct and performance standards applicable to teachers, they cannot form the basis for any disciplinary action that Petitioner seeks to take against Respondent in this proceeding.
17/ To the extent that the investigative report prepared by the School Police and Captain Dilbert's testimony about the contents of that report were offered into evidence to prove the truth of the matters asserted in the report, that evidence is hearsay.
Petitioner did not establish that the investigative report or the sworn statements contained in it, which also are hearsay, fall within any exceptions to the hearsay rule. See Yisrael v. State,
993 So. 2d 952, 956 (Fla. 2008)(the evidentiary proponent has the burden of establishing a proper predicate for applicability of an exception to the hearsay rule).
To fall under the business records exception in section 90.803(6), the proponent of the document must show that the record was made at or near the time of the event recorded; that it was the regular practice of the business to make such a record; and that the record was made by or from information transmitted by persons with knowledge who are acting in the course of the regularly conducted business. Quinn v. State, 662 So. 2d 947, 953 (Fla. 5th DCA 1995). It is well-established in Florida law that investigative reports generally do not fall within the business records hearsay exception because the persons providing the information to the person preparing the report do not, themselves, have a business duty to provide that information. See Visconti v. Hollywood Rental Serv., 580 So. 2d
197 (Fla. 4th DCA 1991)(patient statement regarding slip and fall incident did not fall within the business records exception because the patient did not have a business duty to make the statement); Brooks v. State, 918 So. 2d 181 (Fla. 2005)(where the initial supplier of information in a record is not acting in the course of the business, the information does not fall within the business records exception); Harris v. Fla. Game and Fresh Water Fish Comm'n, 495 So. 2d 806 (Fla. 1st DCA 1986)(statements made in investigative reports do not fall within the business records exception where the statement is not made by a person who was acting within the regular course of the business's activity). Here, the students who transmitted the information that was recorded in the investigative report (by Dilbert and others) did not, themselves, have a business duty to provide that information; accordingly, they were not acting in the course of regularly conducted business when they provided the information to School Police. Therefore, the investigative report does not fall under the business records exception to the hearsay rule.
Further, it was not shown that the sworn statements in the investigative report fall within the "excited utterance" hearsay exception in section 90.803(2). For a statement to fall within this exception, the statement about the event must be made so close in time to the occurrence of the event that the declarant does not have sufficient time to engage in reflective thought before making the statement. Rogers v. State, 600 So. 2d 237,
240 (Fla. 1995); Brandenburg v. State, 890 So. 2d 267, 269 (Fla. 1st DCA 2004). To that point, Florida law holds that where a statement takes the form of a narrative description of an event, the statement generally does not fall within the "excited
utterance" exception because it is statement of reflective thought. Mariano v. State, 933 So. 2d 111, 117 (Fla. 4th DCA 2006); Charlot v. State, 679 So. 2d 844, 845 (Fla. 4th DCA 1996). Here, the sworn statements recorded in the report were made days, weeks, months, or even as much as a year, after Respondent's alleged conduct about which the statements were made. This time period is far too long for those statements to have been made without the declarants having engaged in reflective thought in making the statements. Further, the sworn statements consisted of narrative descriptions of the alleged events. For these reasons, the sworn statements in the report do not fall within the "excited utterance" exception to the hearsay rule.
It also was not shown that the sworn statements fall within the "state of mind" hearsay exception in section 90.803(3). To fall within this exception, the statements must be about the declarant's then-existing state of mind, emotion, or physical sensation, and they must be offered specifically for the purpose of proving the declarant's state of mind, emotion, or physical sensation. Stoll v. State, 762 So. 2d 870, 874 (Fla. 2000);
Correll v. State, 523 So. 2d 562, 565 (Fla. 1988); Fleming v.
State, 457 So. 2d 499, 501 (Fla. 2d DCA 1984); Bailey v. State,
419 So. 2d 721, 722 (Fla. 1st DCA 1982); Kennedy v. State, 385 So. 2d 1020, 1021-22 (Fla. 5th DCA 1980). Here, the sworn statements in the investigative report were not about the declarant's state of mind, emotion, or physical sensation; rather, they were statements describing events. Furthermore, these statements were not offered to prove the declarants' state of mind, emotion, or physical sensation, but instead were offered specifically to prove that Respondent engaged in certain conduct. Section 90.803(3)(b)1. expressly excludes after-the-fact statements of memory or belief for the purpose of proving the fact remembered or believed. Here, the sworn statements in the investigative report are after-the-fact statements of memory or belief. Therefore, they do not fall within the "state of mind exception" to the hearsay rule.
Finally, even if the sworn statements in the investigative report fell within an exception to the hearsay rule, the undersigned did not find the statements——which were not subject to cross examination——to be persuasive, particularly compared to the credible, persuasive testimony of C.W., I.D., V.A., R.C., and Respondent that was presented at the final hearing. Therefore, the sworn statements contained in the investigative report have not been afforded any weight for the purpose of establishing that Respondent engaged in the conduct described in the statements.
18/ The version of rule 6A-5.056 in effect at the time of the alleged conduct giving rise to this case went into effect on July 8, 2012.
19/ The version of rule 6A-10.080 in effect at the time of the alleged conduct giving rise to this case went into effect on January 11, 2013.
20/ The version of rule 6A-10.081 in effect at the time of the alleged conduct giving rise to this case went into effect on January 11, 2013.
COPIES FURNISHED:
Jean Marie Middleton, Esquire School Board of Palm Beach County Office of General Counsel
3300 Forest Hill Boulevard, Suite C-323 Post Office Box 19239
West Palm Beach, Florida 33416-9239 (eServed)
Mark S. Wilensky, Esquire Dubiner and Wilensky, LLC
1200 Corporate Center Way, Suite 200
Wellington, Florida 33414-8594 (eServed)
Sylvia Alarcon Sparler, Esquire Sparler and Sparler, P.A.
4200 South Dixie Highway
West Palm Beach, Florida 33405 (eServed)
Dr. Robert Avossa, Superintendent Palm Beach County School Board
3300 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406-5869
Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244
325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Pam Stewart, Commissioner of Education Department of Education
Turlington Building, Suite 1514
325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
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 |
|---|---|---|
| Jul. 11, 2017 | Agency Final Order | |
| Apr. 24, 2017 | Recommended Order | Petitioner did not prove, by clear and convincing evidence, that Respondent engaged in the conduct charged in the administrative complaint. Just cause does not exist to suspend and terminate him. |
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