STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 86-0881

)

RAFAEL DUHARTE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on September 24, 1986 in Miami, Florida.

APPEARANCES:

FOR PETITIONER: Frank R. Harder, Esquire

Twin Oaks Bldg., Suite 100 2780 Galloway Road

Miami, Florida 33165

FOR RESPONDENT: Dan J. Bradley, Esquire

2950 S.W. 27th Avenue, Suite 310 Coconut Grove, Florida 33133

BACKGROUND:

By letter dated March 6, 1986, petitioner, School Board of Dade County, advised respondent, Rafael Duharte, a continuing contract teacher, that he was suspended effective March 5, 1986 "for misconduct in office and falsification of an application for employment." According to the letter, such conduct violated Subsections 230.23(5)(f) and 231.36(4)(c), Florida Statutes (1985) and School Board Rule 6GX13-4A-1.21(1). Thereafter, respondent timely requested a hearing to contest the action. The matter was referred to the Division of Administrative Hearings by petitioner on March 14, 1986, with a request that a Hearing Officer be assigned to conduct a hearing. On September 15, 1986, petitioner issued its Formal Notice of Charges which provided greater detail concerning the charges, and alleged that Duharte's previously described conduct also constituted immorality within the meaning of Rule 6B-4.09, Florida Administrative Code. By notice of hearing dated March 31, 1986, a final hearing was scheduled on July 7, 1986 in Miami, Florida. At the request of petitioner, the matter was rescheduled to September 24, 1986 at the same location.

At final hearing, petitioner presented the testimony of Paul Heithaus, coordinator of instructional staffing, and Dr. Felicia Gil, a coordinator in the office of professional standards. It also offered petitioner's exhibit 1 which

was received into evidence. Respondent testified on his own behalf and offered the testimony of Dr. Marta Klovekorn, former personnel manager for the department of instructional staffing. He also offered respondent's exhibit 1 which was received into evidence.

The transcript of hearing was filed on October 22, 1986. Proposed findings of fact and conclusions of law were filed by respondent on November 10, 1986.

None were filed by petitioner. A ruling on each proposed finding of fact is contained in the Appendix attached to this order.

At issue is whether respondent should be dismissed as a continuing contract employee for the conduct described in the Formal Notice of Charges.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner, Rafael A. Duharte, is a native of Cuba who moved to this country some sixteen years ago. He has lived in Miami since 1972. In 1976, Duharte obtained a bachelor's degree in Spanish from Biscayne College, and approximately eighteen months later received a master's degree in special education from the same institution. He is certified as a teacher by the State Department of Education.

   
   

2. In October, 1977 Duharte began teaching at Montanari Residential Treatment Center (Montanari) in Miami, Florida, a school which specializes in teaching mentally retarded students. He continued to work there until February, 1984. In 1978, he filed an application with petitioner, School Board of Dade County, seeking a teaching position in the Dade County School System. He filed additional applications in 1980 and 1985. On all applications he acknowledged his employment at Montanari. Duharte also made inquiry as to openings with the Department of Instructional Staffing (Department) at least once a year after 1978. On two of those visits (June, 1984 and April, 1985), he met briefly and informally with a Department coordinator. The Department interviews all teaching applicants and makes recommendations as to whether a candidate should be hired.

   
   

3. In February, 1984 Duharte was verbally informed by a school official that he was dismissed from employment with Montanari. He received nothing in writing memorializing this action but rather was told that he was being dismissed because of complaints from students. However, he did receive a letter of recommendation from Montanari which is now in petitioner's personnel files.

   
   

4. In February, 1984 Duharte made application for and was accepted as a substitute teacher with petitioner. As a general rule, no background check is run on a substitute's application, and consequently no inquiry was made with Montanari, Duharte's former employer. Duharte began teaching as a substitute teacher in March, 1984 and continued doing so for the remainder of the school year as well as the entire school year 1984-85.

   
   

5. On September 26, 1985 Duharte filed his third application with petitioner for employment as a full-time teacher. On the application was the following question: "Have you ever been removed or dismissed from any position?" Duharte checked off the answer "No". As a prerequisite to employment, Duharte was interviewed by a Department coordinator. However, he was asked nothing specific concerning the circumstances under which he left

   Montanari. Under petitioner's then existing policy, a background check was normally made of full-time applicants. In this case, the coordinator merely talked to Duharte's assistant principal at the school where he was a substitute. After no adverse information was disclosed, Duharte was hired to teach at Citrus Grove Junior High School.

   
   

6. Several months later, the coordinator had an occasion to call Montanari concerning a different applicant, and learned that Duharte had been dismissed. This was confirmed by Duharte at a conference for the record, a meeting required by the teacher's union contract prior to the commencement of formal disciplinary action against teachers. At that meeting, Duharte stated he did not answer "yes" to the question because he knew he would not be hired if he gave a truthful answer. Duharte was then suspended by petitioner effective March 5, 1986. He has remained suspended without pay since that time. His suspension precipitated the instant proceeding.

   
   

7. At final hearing, Duharte confirmed he had been orally dismissed from Montanari but was never given anything in writing concerning his dismissal. Therefore, he contended that to answer "yes" to the question would be acknowledging that Montanari had a valid reason for terminating him. He expressed a sincere desire to be employed and stated that he had nothing to hide. Indeed, he pointed out that during one of his informal meetings with Department personnel in April, 1985 he disclosed to a coordinator that he had been dismissed from Montanari. This was confirmed by a coordinator who testified at final hearing. However, the coordinator did not learn that Duharte was hired by the School Board until "months later". Duharte also indicated that had he been asked by the coordinator at the September, 1985 interview, he would have disclosed his dismissal.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1985).

   
   

9. According to the Formal Notice of Charges, respondent's failure to indicate on his application that he had been terminated from a prior job constituted (a) immorality within the meaning of Rule 6B-4.09(2) Florida Administrative Code, and (b) misconduct in office as proscribed by Rules 6B-1.06 and 6B-4.09(3), Florida Administrative Code. The Notice further alleges that said rule violations form a sufficient basis for dismissal under Sections 230.23(5), 230.33(7), 231.001, 231.02 and 231.36, Florida Statutes (1985). 1/

   
   

10. Rule 6B-4.09 (2) and (3), Florida Administrative Code, define the terms "immorality" "misconduct in office' as follows:

    
    

    1. 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 or the education profession into public disgrace

       or disrespect and impair the individual's service in the community.

    2. Misconduct in office is defined as a violation of the Code of

       Ethics of the Education Profession as adopted in Rule 6B-1.01,

       F.A.C., and the principles of Professional Conduct for the Education Profession in Florida

       as adopted in Rule 6B-1.06, F.A.C., which is so serious as to impair the individual's effectiveness

       in the school system.

       
       

11. Initially, it is noted that although petitioner did not file a post- hearing pleading, at final hearing its counsel relied upon the case of Negrich

    v. Dade County Board of Public Instruction, 143 So.2d 498 (Fla. 3rd DCA 1962) to support the proposition that Duharte's conduct equated to immorality. In Negrich, a teacher falsified his application (by incorrectly stating he was a

    U.S. citizen) to obtain a teaching position with the Dade County School Board. On appeal, the Court held that this conduct equated with immorality within the meaning of Subsection 230.23(5)(h), Florida Statutes (1961). This statute does not substantially differ from the present law codified in Subsection 231.36(4)(c), Florida Statutes (1985) and accordingly it is concluded that the conduct in question constitutes immorality within the meaning of the law. This is especially true since Duharte acknowledged on one occasion that he knowingly failed to disclose the information on his application for fear of not being hired.

    
    

12. The evidence also reveals that Duharte has violated the principles of the Code of Ethics set forth in Rule 6B-1.06(5)(g) and (h), Florida Administrative Code. These principles prohibit an educator from submitting fraudulent information on any document in connection with professional activities, and from failing to disclose a material fact in one's own application for a professional position. However, in order to constitute misconduct in office, one must hold an "office" (teaching position) when the illicit conduct occurs. In the case at bar Duharte held no office when the application was filed, and consequently the charge of misconduct in office does not apply. Even if it did, such violations of the Code of Ethics must be "so serious as to impair the individual's effectiveness in the school system". Rule 6B-4.09(2), F.A.C. Here there was no evidence that Duharte's effectiveness had been impaired, and accordingly this portion of the charges must fail. Boyette

    v. State Professional Practices Council, 346 So.2d 598, 600 (Fla. 1st DCA 1977).

    
    

13. Subsection 231.36(4)(c), Florida Statues (1985), provides the following alternatives for a school board if the charge of immorality has been proven:

(4)(c). . . if the charges are sustained, (the school board) shall

determine either to dismiss the employee or fix the terms under which he may be reemployed. . .

In the case at bar, petitioner suspended respondent from his job without pay on March 5, 1986, and he has remained in that status since that time. A suggested penalty by petitioner has not been proposed. However, in view of the circumstances herein, it is recommended that respondent be dismissed from employment but that he be given leave to refile an application disclosing all facts concerning his dismissal. A decision on re-employment can then be made based upon the merits of the application.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of immorality and that he be

dismissed from employment with petitioner. All other charges should be dismissed. Respondent should be permitted to refile an application for employment setting forth the circumstances under which he was terminated from his prior employment. A decision can then be made based upon the merits of the application.

DONE and ORDERED this 21st day of November, 1986 in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301 904/488-9675

FILED with the Clerk of the Division of Administrative Hearings this 21st day of November, 1986.

ENDNOTE

1/ The letter of March 6, 1986 also referred to School Board Rule 6GX13-4A- 1.21(1). A copy of the rule was not offered in evidence, officially noticed, or otherwise referred to at hearing. Consequently, it has been disregarded in the preparation of this Recommended Order.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0881

Respondent: *

1. Rejected as being a conclusion of law.

2. Covered in finding of fact 1.

3. Covered in finding of fact 2.

4. Covered in findings of fact 3 and 7.

5. Covered in findings of fact 2.

6. Covered in findings of fact 2.

7. Covered in findings of fact 4.

8. Covered in findings of fact 2 and 7.

9. Covered in findings of fact 4 and 5.

10. Partially covered in finding of fact 3; the remainder is unnecessary.

11. Rejected as being unnecessary.

12. Partially covered in finding of fact 7.

13. Partially covered in finding of fact 7.

*Petitioner did not file proposed findings of fact.

COPIES FURNISHED:

Frank R. Harder, Esquire Dr. Leonard Britton

Twin Oaks Bldg., Suite 100 Superintendent of Schools 2780 Galloway Road Dade County Public Schools Miami, Florida 33165 1450 Northeast Second Avenue

Miami, Florida 33132

Dan J. Bradley, Esquire

2950 S.W. 27th Avenue Judith Brechner, Esquire Suite 310 General Counsel

Coconut Grove, Florida 33133 Knott Building

Tallahassee, Florida 32301

Hon. Ralph D. Turlington Commissioner of Education The Capitol

Tallahassee, Florida 32301

Docket for Case No: 86-000881

Orders for Case No: 86-000881