STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-0555

)

MICHAEL A. GRAHAM, )

)

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 July 6, 1988, in Miami, Florida.

APPEARANCES

For Petitioner: Frank R. Harder, Esquire

Fontainebleau Park Office Plaza Suite 2A-3

175 Fontainebleau Boulevard Miami, Florida 33172

For Respondent: William D. DuFresne, Jr., Esquire

2929 Southwest Third Avenue Suite One

Miami, Florida 33129 BACKGROUND

By letter dated January 12, 1988, petitioner, School Board of Dade County, advised respondent, Michael A. Graham, a continuing contract teacher, that he was suspended for thirty days without pay effective January 20, 1988 "for just cause and misconduct in office." Thereafter, by letter dated January 22, 1988 respondent timely requested a hearing to contest the action. The matter was referred to the Division of Administrative (A Hearings by petitioner on February 4, 1988, with a request that a Hearing Officer be assigned to conduct a hearing. On July 1, 1988 a Notice of Charges containing seven counts was issued by the Board. At hearing, Count VII was voluntarily dismissed by petitioner.

By notice of hearing dated February 22, 1988 a final hearing was scheduled on July 6, 1988 in Miami, Florida. At final hearing, petitioner presented the testimony of V.E., Marta Ezpeleta, Angela D. Alfonso, Laurie Nelson, Samuel A. Martin, Jorge Sotolongo, Martin D. Kavenaugh, Dr. James E. Monroe and Dr. D. Patrick Gray. It also offered petitioner's exhibits 1-11. All exhibits were received into evidence. Respondent testified on his own behalf and offered respondent's exhibits 1 and 2. Both exhibits were received in evidence.

Finally, the parties stipulated to the post-hearing filing of a deposition of

I.M. The deposition was taken on July 28, 1988, and the transcript of the deposition was filed on August 31, 1988.

The transcript of final hearing was filed on August 9, 1988. Proposed findings of fact and conclusions of law were filed by respondent and petitioner on September 9 and 15, 1988, respectively. A ruling on each proposed finding of fact is contained in the Appendix attached to this Recommended Order.

At issue is whether respondent should be suspended from his job without pay for thirty days as proposed in the Notice of Charges issued on July 1, 1988.

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

FINDINGS OF FACT

1. Introduction

   
   

   1. At all times relevant hereto, respondent, Michael A. Graham, was a middle school teacher at West Miami Junior High School (WMJHS) in Miami, Florida. He is under a continuing contract as a teacher for petitioner, School Board of Dade County (Board). He has been an employee in the school system since 1975 and a full-time teacher since 1981. Graham holds bachelor and master degrees from the University of Miami and is currently taking course work at Florida International University towards a second master's degree.

      
      

   2. On January 12, 1988 the Board voted to suspend Graham without pay for thirty days effective January 20, 1988 for "just cause and misconduct in office." On July 1, 1988 the Board issued a Notice of Charges containing six counts of alleged misconduct. 1/ The charging document alleged that respondent

      1. failed to disclose on his job application dated September 24, 1981 that he had been previously arrested on numerous occasions, (b) intentionally exposed a student, I.M., to unnecessary embarrassment, (c) intentionally exposed a student, V.E., to unnecessary embarrassment or disparagement, (d) intentionally committed a battery on U.C., a student, (e) continually and intentionally refused to discontinue uttering profane and/or vulgar language in his classroom during school years 1985-86, 1986-87 and 1987-88, and (f) continually and intentionally refused to discontinue excessive tardiness and excessive absences during the same school years. These charges will be taken up separately below.

         
         

2. Filing A False Application (Counts I and II)

   
   

   1. During the course of his employment with the Board, Graham has filled out various applications and other informational forms. Relevant to this proceeding is an application for an instructional position filed with the Board on September 24, 1981. The application asked the following question: Have you ever been convicted of anything other than minor traffic violations? Graham responded in the negative.

      
      

   2. Sometime after Graham filed the above application, the Board had an occasion to run a background check on him. Among other things, the Board uncovered the fact that Graham had been arrested on February 29, 1976 for resisting an officer without violence to his person and disorderly conduct, both misdemeanors. The first charge was nolle prossed while Graham was found guilty of the second charge and received a suspended sentence. Certified copies of these records have been introduced into evidence as petitioner's exhibit 10.

   3. Although petitioner did not introduce into evidence certified copies of other arrests, there was testimony, without objection, that Graham had been arrested for the following charges:

      
      

      12/17/71 - public drunkenness 6/05/74 - theft

      5/14/76 - worthless checks 4/08/77 - "warrant arrests" 5/18/77 - worthless checks 9/11/79 - worthless checks 9/17/81 - aggravated battery 11/05/82 - worthless checks 2/21/86 - worthless checks

      
      

      During a conference with a school administrator on August 21, 1987, Graham acknowledged that, with the exception of the May 14, 1976 arrest which he did not remember, and the April 8, 1977 matter which he stated involved a voluntary return on his part to the State of Indiana, all other arrests occurred.

      However, there is no evidence that Graham was convicted of any of these charges, and his testimony that all charges were later dropped was not contradicted.

      
      

   4. At hearing Graham explained that he thought the question concerning prior arrests on the employment application meant whether his civil rights had ever been taken away. Since they had not, he stated he believed his negative answer was appropriate.

      
      

3. Exposing Students to Embarrassment or Disparagement (Counts III and IV)

   
   

   1. It is alleged that in school year 1986-87, respondent exposed I.M., a seventh grade female student, to "unnecessary embarrassment or disparagement." The student did not appear at hearing but gave post-hearing deposition testimony. As clarified at hearing, this charge stems from alleged off-color remarks about I.M.'s clothing made by Graham to I.M. in front of the class.

      
      

   2. I.M. was a student in Graham's history class in school year 1986-87. While in class on May 11, 1987, I.M. left her desk to go to the restroom. She was wearing tight fitting pants. When she returned, Graham remarked in a loud voice, and in front of the class, that her pants were so tight he "could see her crack and count the hairs." Graham also made her perform a "fabric test" to ascertain whether she could pinch the cloth on the pants without pinching her skin. If I.M. pinched both skin and cloth, this confirmed that the pants were too tight. After Graham made his comments and required I.M. to take the "fabric test," I.M. became embarrassed, felt "cheap," began crying and left the room. She reported the incident to her counselor and prepared a written statement which is attached to her deposition. Also, she described the incident to a school investigator the same day, giving essentially the same version of events described above. This account is deemed to be more accurate and credible than a slightly different version of events given by I.M. by deposition some fifteen months later.

      
      

   3. Graham recalled the incident differently. According to his recollection, when I.M. returned from the bathroom to the classroom, he told her she had "inappropriate clothing," and if she disputed this, she would be given a hall pass to visit the principal. If the principal approved the pants, she could wear them to school. Otherwise, Graham told her not to wear them to his class in the future. Graham contended also that he said "Your clothing is too

      tight around the hips and crotch" and denied using the words "hairs" or "crack." He conceded he may have asked her to perform a "fabric test." However, this version of events is not deemed to be credible and is hereby discredited.

      
      

   4. Student V.E. is a fundamentalist Christian who was in Graham's American History class for the first three days of school year 1987-88. On the first or second day of class Graham gave a class assignment requiring the students to use the Bible as a historical reference but to explain the story without the (i ideas of miracles and deity. V.E. understood this to mean that she was to "take all miracles" out of the story and to "not have God in it." During class that day, V.E. asked a question about a Bible parable being discussed by Graham and, after she gave the biblical version of what happened, Graham asked her if she believed in magic. V.E. felt "bad" and "intimidated" by Graham's question.

      
      

   5. When she went home that evening, V.E. told her mother about the class assignment. The mother was upset and prepared a letter for Graham and the assistant principal questioning the subject matter of the assignment. V.E. was told by her mother to hand carry a copy of the letter to Graham the next day. Before she could do this, the assistant principal told Graham that V.E.`s mother had sent a letter. When she entered the classroom the next day, V.E. was asked by Graham if she had a letter for him. After being handed the letter, Graham asked V.E. why she told her mother about the assignment and added "I'm pissed." This episode took place in front of the entire classroom. This caused V.E. to be very "upset" and "embarrassed." She immediately transferred out of Graham's class.

      
      

   6. Graham countered that there was no "homework assignment" per se and that he was merely seeking to obtain "critical thinking" from his students. According to Graham, his discussion was consistent with the approved curriculum and was intended to have the students reconcile biblical stories with other theories of evolution of men. Graham believed that V.E. had misunderstood the discussion as being an attack on religion when in fact it was not. He added that, of all the students, only V.E. reached that erroneous conclusion. He conceded that he "may have" used the words "I'm pissed" but contended that he was justified in questioning her in front of the entire classroom because students frequently hurried off to other classes once the end-of-period bell rang.

      
      

4. Battering Urbano (Count IV)

   
   

   1. In school year 1986-87, Urbano was a fifteen year old male student.

      He has since departed the state. It is alleged that Graham committed battery on Urbano. According to Graham, who gave the only eyewitness account of the entire fray, Urbano was still a student when the incident occurred but was in the process of withdrawing from school and moving to California. Urbano had been in several classes taught by Graham and had a history of disruptive conduct.

      Urbano returned to the campus one day to speak with a girlfriend who was in Graham's classroom. Urbano entered the classroom during a change in classes. Not wanting a confrontation, Graham requested the girl to ask Urbano to leave. When she did this, Urbano began cursing Graham and slowly backed into the hallway outside of Graham's classroom. As Graham attempted to close his door,

      Urbano blocked the door and pushed Graham who responded by pushing Urbano out of the doorway. Urbano then threw a four pound textbook into Graham's chest. After Graham asked Urbano to follow him to the principal's office, Urbano drew back his fist to strike Graham. At that point, and in self-defense, Graham struck Urbano with a blow to the side of his face. In retaliation, Urbano threw a

      karate kick into Graham's left knee. Graham followed by administering a second blow to Urbano's face. A female physical education teacher then approached the melee, grabbed Urbano on the shoulder and escorted him to the principal's office. According to Graham, Urbano was immediately suspended from school.

      This was not contradicted. There is no evidence that Graham was criminally charged with battery or disciplined by the school for the incident.

      
      

5. Using Profane and Vulgar Language in Class (Count V)

   
   

   1. It is charged that in school years 1985-86, 1986-87 and 1987-88 Graham was given direct orders to discontinue "uttering profane and/or vulgar language while in the performance of assigned duties as a classroom teacher," and that respondent "continually and intentionally refused to discontinue" doing so. The allegations stem from disciplinary action taken in the fall of 1985.

      
      

   2. On October 17, 1985 respondent participated in a conference for the record with WMJHS principal Kavenaugh for using "very salty language" in the classroom. Neither Kavenaugh or Graham could recall what words were actually used by Graham.

      
      

   3. As noted in finding of fact 11, Graham used the words "I'm pissed" while talking to student V.E. in September, 1987. About the same time, he recited a "parable" in V.E.'s class which went generally as follows:

      
      

      A large flock of birds immigrated south one winter but one bird's wings froze, and it fell to the ground. A horse came along and deposited cow shit on the bird. Although the cow shit did not smell good, it kept the bird warm. A cat then came upon the fallen bird, wiped the cow shit off of its wings and ate it. The moral: not everyone who shits on

      you is your enemy, and not everyone who does you a favor is your friend.

      
      

      Graham acknowledged reciting the above story in class but claimed he used the word "chip" instead of "shit." However, V.E. stated she heard the word "shit," and this version of the events is accepted as being more credible.

      
      

   4. Principal Kavenaugh gave some vague testimony about other incidents of vulgarity but could not give specifics as to when this occurred or what was said. Other than the order to quit using "very salty language" in October 1985, there is no evidence of any other orders given to Graham by a principal or administrative officer directing him to refrain from using vulgarity or profanity.

      
      

6. Excessive Tardiness and Absences (Count VI)

   
   

   1. The notice of charges alleges that in school years 1985-86, 1986-87 and 1987-88 Graham was "given direct orders to discontinue his excessive tardiness and/or excessive absences," and that he "continually and intentionally refused to discontinue" doing so.

      
      

   2. Assistant principal Sotolongo authored memoranda to respondent on May 27, 1986 and March 25, 1987 regarding class absences. The first concerned respondent sitting in the teacher's lounge ten minutes after class had started on May 23, 1986. For this infraction, Graham received a reprimand. The

      assistant principal stated that Graham was "periodically" absent from class but could not recall the number of times this occurred or the dates of such absences. The second memorandum was prompted by Graham being absent from school during the afternoon of March 24, 1987. Graham's explanation of having to see a doctor for a workers' compensation injury was not accepted as being satisfactory.

      
      

   3. Principal Kavenaugh authored a memorandum on May 6, 1986 concerning punctual attendance by Graham. The memorandum was prepared after Graham had been late to school at least ten times between January 10, 1986 and May 5, 1986. Respondent promised to make an "extra effort" to comply with attendance requirements.

      
      

   4. There is no evidence that, after the May 6, 1986 memorandum, Graham was late for school or that he refused to comply with attendance requirements.

      
      

7. Miscellaneous

1. Graham was told by principal Kavenaugh on one occasion "to be courteous and free of sarcasm" while teaching his students. This order was memorialized in a memorandum dated June 19, 1987. There is no evidence he disobeyed this order.

   
   

2. On November 10, 1987 Graham was placed on prescription for one item of performance. This meant he had to correct a deficiency in professional performance and responsibilities. The prescription was prompted primarily by the V.E. incident and the parable given in the history class, both occurring in September, 1987. There is no evidence that Graham did not fulfill the terms of the prescription.

   
   

3. According to Dr. D. Patrick Gray, who was accepted as an expert in professional ethics, performance appraisal and professional or personnel management, Graham violated the teachers' code of ethics by intentionally exposing a student to unnecessary embarrassment or disparagement, unreasonably denying a student access to a diverse point of view, and failing to keep the confidence of personally identifiable information concerning a student. He opined further that, given respondent's conduct as described in the Notice of Charges, Graham's effectiveness as a teacher had been seriously impaired.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1987).

   
   

5. The Notice of Charges cites six counts of misconduct on the part of Graham for which the Board seeks to impose a thirty day suspension without pay. To sustain these charges, petitioner must prove the allegations by the preponderance of evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987)

   
   

6. The Board alleges that respondent's conduct constituted violations of Rules 6B-1.01, 6B-1.06 and Rule 6B-4.09(1) - (4), Florida Administrative Code (1987). The latter rule contains definitions of incompetency, immorality, misconduct in office and gross insubordination. The former two rules pertain to ethics and professional standards of educators. Rule 6B-4.09 reads in pertinent part as follows:

   6B-4.009 Criteria for Suspension and Dismissal. The basis for charges upon which dismissal action against instructional personnel may be pursued are set forth in Section 231.36, Florida Statutes. The basis for each of such charges is hereby defined:

   1. Incompetency is defined as inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity. Since incompetency is a relative term, an authoritative decision in an individual case may be made on the basis of testimony by members of a panel of expert witnesses appropriately appointed from the teaching profession by the Commissioner of Education. Such judgment shall be based on a preponderance of evidence showing the existence of one (1) or more of the

      following: (a) Inefficiency: (1) repeated failure to perform duties prescribed by law (Section

      231.09, Florida Statutes); (2) repeated failure on the part of a teacher to communicate with and relate to children in the classroom, to such an extent that pupils are deprived of minimum educational experience; or (3) repeated failure on the part of an administrator or supervisor to communicate with and relate to teachers under his or her supervision to such an extent that the educational program for which he or she is responsible is seriously impaired.

      
      

      1. Incapacity: (1) lack of emotional stability; (2) lack of adequate physical ability; (3) lack of general educational background; or (4) lack of adequate command of his or her area of specialization.

   2. 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. (3) Misconduct in office is defined as a violation of the Code of Ethics of the

      Education Profession as adopted in Rule 6B-1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule

      6B-1.006, F.A.C., which is so serious as to impair the individual's effectiveness in the school system.

      
      

      (4) Gross insubordination or willful neglect of duties is defined as a constant or continuing intentional refusal to obey a

      direct order, reasonable in nature, and given by and with proper authority.

      * * *

      Each count will be discussed separately below.

      
      

7. Counts I and II Graham is charged first with having filed with the Board an application for employment on September 24, 1981 containing a false statement. The evidence reflects that Graham answered no to the question of whether he had ever been convicted of anything other than a minor traffic violation. Since Graham was convicted in 1976 of the misdemeanor charge of disorderly conduct, he should have responded in the affirmative. This is particularly true since Graham had two college degrees at the time the application was made and should have understood the clear import of this straightforward question. 2/

   
   

8. Petitioner argues that the above conduct equates to immorality (Count

   I) and misconduct in office (Count II). The first violation is based on the rationale espoused in an older decision, Negrich v. Dade County Board of Public Instruction, 143 So.2d 498 (Fla. 3rd DCA 1963), which held that, by making a false statement on an employment application as to the status of his citizenship, a teacher had committed immorality and was therefore subject to dismissal. According to the court, by showing that a teacher falsified his records to obtain a teaching position, a school board had adduced sufficient proof to establish immorality within the meaning of the law. Since the undersigned is obliged to follow this precedent, it follows that Graham's conduct also constituted immorality. Further, by falsifying an application, Graham failed to "achieve and sustain the highest degree of ethical conduct" (Rule 6B-1.001(3), F.A.C.), and "(made) a fraudulent statement or fail(ed) to disclose a material fact in one's own . . . application for a professional position" (Rule 6B-1.006(5)(h), F.A.C.). Coupled with evidence that Graham's overall conduct has impaired his effectiveness as a teacher, Graham is guilty of misconduct in office. Thus, the charges in Counts I and II have been proven.

   
   

9. Count III - Graham is charged next with intentionally exposing two students, I.M. and V.E., to unnecessary embarrassment or disparagement during school years 1986-87 and 1987-88, respectively. According to the Notice, Graham "unreasonably denied V.E. access to diverse points of view and did fail to keep in confidence personally identifiable information concerning V.E. obtained in the course of professional service." There are no specific allegations in the Notice concerning I.M.

   
   

10. There is less than a preponderance of evidence that Graham "denied

    V.E. access to diverse points of view." Indeed, the record shows that V.E. was in the class for only three sessions, and while she may have misunderstood the purpose of the discussion which troubled her, she was not denied access to different points of view. Thus, the charge that Graham violated Rule 6B- 1.006(3)(c) and (e) has not been established. The "personally identifiable information" concerning V.E. which Graham allegedly disclosed to other students is the fact that V.E.'s mother had sent a letter to school authorities. Since Graham asked simply whether V.E. had something for him, and was then handed a letter, the evidence is insufficient to establish a violation of Rule 6B- 1.006(3)(i). 3/

    
    

11. As to I.M., the more credible evidence reflects that Graham did use the words "crack" and "hairs" while admonishing I.M. for wearing tight fitting pants. Since this took place in front of the class and caused I.M. to feel "cheap" and "embarrassed" and to cry, the charge that Graham violated 6B-

    1.006(3)(e) has been sustained. Since Graham failed "to exercise the best professional judgment and integrity" (Rule 6B-1.001(2), F.A.C.) during this episode, and there being evidence to establish that his effectiveness as a teacher has been impaired, he is likewise guilty of misconduct in office.

    
    

12. Count IV - It is charged in Count IV that Graham intentionally battered a student, Urbano, and was therefore guilty of immorality and a violation of two principles of professional conduct. The more credible evidence reflects that Graham struck Urbano twice but did so while in fear of bodily harm from the student and for the sole purpose of protecting his person. Since respondent was justified in his conduct, the charges should not lie.

    
    

13. Count V - By this count, Graham is charged with having "continually and intentionally refused to discontinue uttering profane and/or vulgar language while in the performance of assigned duties as a classroom teacher." As such, the Board contends Graham is guilty of gross insubordination within the meaning of Rule 6B-4.09(4). The Board has established that Graham received written instructions in October, 1985 to cease using "very salty language" in the classroom. No other direct orders concerning this subject are of record. Although the evidence shows that Graham used the words "I'm pissed" and "shit" on one occasion each in September, 1987, one cannot conclude that this constituted continual and intentional use of profane and vulgar language by Graham in the classroom after receiving the written order. Indeed, an "isolated outburst" alone should not be construed as the constant or continuing conduct required by the rule. Cf. Smith v. School Board of Leon County, 405 So.2d 183,

    185 (Fla. 1st DCA 1981). Therefore, Count V must fail.

    
    

14. Count VI - The final count alleges that Graham, after receiving direct orders to discontinue excessive tardiness and absences, "continually and intentionally refused to discontinue his excessive tardiness and/or excessive absences" during school years 1985-86, 1986-87 and 1987-88 school years. As to this charge the Board has established that Graham received memoranda concerning this subject on May 6 and 27, 1986 and March 25, 1987. However, principal Kavenaugh testified that after warning Graham about his excessive tardiness in May, 1986, no further problems occurred. Only two other incidents were recorded in writing, one on May 27, 1986 for Graham sitting in the teacher's lounge ten minutes after class had begun, and another on March 25, 1987 for Graham being absent one afternoon without a satisfactory excuse. Again, the isolated instances do not equate to continual and intentional transgressions as required by the rule. Therefore, Count VI should be dismissed. Smith, supra.

    
    

15. To summarize, only Counts I and II and a part of Count III have been established by the preponderance of evidence. Since the Board has stipulated that the maximum penalty to be imposed in this case is a thirty day suspension without pay, the Board's suggested penalty should be imposed.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of those charges in Counts I

and II and a portion of Count III. All others should be dismissed. Respondent should also be suspended without pay for thirty days as proposed by the agency in its suspension notice effective January 20, 1988.

DONE AND ORDERED this 19th day of September, 1988, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1988.

ENDNOTES

1/ Count VII was voluntarily dismissed by the Board at the outset of the hearing.

2/ Since there is no evidence that Graham was convicted of any other charges, only the misdemeanor charge is relevant.

3/ It should be noted that the Notice does not charge that, by directing the words "I'm pissed" to V.E. in front of the entire class, Graham violated some rule or statute. Therefore, any other violation associated with the exchange between the two has been disregarded.

APPENDIX

Petitioner:

1-3. Covered in background.

1. Covered in finding of fact 1.

2. Covered in findings of fact 10 and 11.

Respondent:

1. Covered in finding of fact 1.

2. Covered in findings of fact 3-6. The last sentence is rejected as being contrary to the more credible and persuasive evidence.

3. Covered in findings of fact 7-9. The last sentence is rejected as being contrary to the more credible and persuasive evidence.

4. Covered in findings of fact 10-12.

5. Covered in finding of fact 16.

6. Rejected as being irrelevant and argument of counsel. 7-9. Covered in finding of fact 13.

COPIES FURNISHED:

Frank R. Harder, Esquire Fontainebleau Park Office Plaza Suite 2A-3

175 Fontainebleau Boulevard Miami, Florida 33172

William D. DuFresne, Jr., Esquire 2929 Southwest Third Avenue Suite One

Miami, Florida 33129

Dr. Joseph A. Fernandez Superintendent of Schools 1450 Northeast Second Avenue Miami, Florida 33132

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399

Docket for Case No: 88-000555

Orders for Case No: 88-000555