STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE )

COUNTY, FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3668

)

TERRICE STEVENS, )

)

Respondent. )

) BETTY CASTOR, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6802

)

TERRICE STEVENS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on January 10, 1990, in Miami, Florida, before Joyous D. Parrish, a designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner School Board Frank R. Harder Dade County, Florida: Twin Oaks Building

2780 Galloway Road. Suite 100

Miami, Florida 33165

For Petitioner John A. Rudolph, Jr.

Betty Castor: HUEY, GUILDAY, KUERSTEINER & TUCKER, P.A.

Post Office Box 1794 Tallahassee, Florida 32302

For Respondent William DuFresne

Terrice Stevens: DU FRESNE & BRADLEY, P.A.

2929 Southwest Third Avenue Suite One

Miami, Florida 33129 STATEMENT OF THE ISSUES

The central issue in case no. 89-3668 is whether the Respondent should be suspended or dismissed from his employment with the School Board of Dade County, Florida (Board). The central issue in case NO. 89-6802 is whether the Respondent is guilty of the violations alleged in the administrative complaint dated November 28, 1989; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

Case No. 89-3668 began on June 28, 1989, when the Board took action to suspend Respondent and to initiate proceedings to dismiss him from his employment with the public school district. The basis for that action was alleged to be Respondent's misconduct in office, immorality, and insubordination. Respondent filed a letter requesting a formal hearing in connection with the matter and the case was forwarded to the Division of Administrative Hearings for further proceedings on July 7, 1989.

Case No. 89-6802 began on November 28, 1989, when the Petitioner, Betty Castor, as Commissioner of Education, filed an administrative complaint against the Respondent and alleged that he was guilty of violating provisions of Section 231.28, Florida Statutes. Specifically, the administrative complaint alleged that Respondent had unnecessarily embarrassed and disparaged students verbally and physically. Further, it was alleged Respondent had touched female students inappropriately on their upper thighs, buttocks and/or breasts. On December 4, 1989, Respondent filed an election of rights which denied the factual allegations of the administrative complaint. This case was forwarded to the Division of Administrative Hearings for formal proceedings on December 11, 1989.

At the hearing, based upon the parties' stipulation, Petitioners presented a joint case and offered the testimony of the following witnesses: Johanna Diaz, a student; Nonique Lafuente, a student; Zaida Lafuente, Monique's mother; Felix Guerra, Maria Alcazar's grandfather; Sasha Petersen, a student; Gerverth Parets, Sasha's stepfather; Ana Maria Parets, Sasha's mother; Jack Gibson, principal at Stirrup Elementary School; Joyce Annunziata, supervisor in the Office of Professional Standards; and Patrick Gray, Assistant Superintendent responsible for the

Office of Professional Standards Petitioners' exhibits numbered 1 through 6 were admitted into evidence. Petitioners were granted leave to file the depositions of three students (Maria Alcazar, Suyin DeCastro, and Ana Bernal) who did not comply with subpoenas served upon them to appear at the hearing. The Respondent testified in his own behalf and offered the testimony of the following students: Christina Salazar and Nelton Gonzalez. After the hearing, the transcript of the proceedings was filed on March 12, 1990. The parties waived the provisions of Rule 28-5.402, Florida Administrative Code, and filed proposed recommended orders which have been considered in the preparation of this order.

Specific rulings on the proposed findings of fact are included in the attached appendix.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made:

1. The Board is the agency charged with the responsibility of operating and supervising the free public schools within the Dade County school district. As such, it is responsible for the discipline of instructional personnel employed by the district.

   
   

2. The Education Practices Commission is responsible for the discipline of teachers who hold teaching certification from the Department of Education.

   
   

3. At all times material to the issues of these cases, Respondent, Terrice Stevens, teaching certificate number 187207, was employed by the Board and assigned to instruct a fifth grade class at Stirrup Elementary School. Respondent is 48 years of age, has been employed by the Board for 17 or 18 years, and has taught fifth grade at Stirrup for at least 6 years. Respondent holds a bachelors degree from Bethune Cookman College and a masters degree from Nova University.

   
   

4. During the 1984-85 school year Respondent had a student named Sasha Petersen assigned to his class. On or about November 2, 1984, Sasha's parents filed a complaint with the school principal against Respondent regarding an incident which had occurred between Sasha and the Respondent. At the end of the school day, Sasha, the last student to leave the classroom, was grabbing her personal belongings and vacating the room when Respondent blocked the doorway and wouldn't allow her to leave. Respondent grabbed Sasha by the waist and told her to give him a kiss if she wanted to leave. In order to expedite her departure,

   Sasha kissed Respondent on the cheek and exited to go home. She subsequently told her mother of the foregoing and they requested that Sasha be removed from Respondent's class.

   
   

5. As a result of the incident with Sasha, on February 13, 1985, Respondent received a written reprimand which included the following instructions:

   
   

   1. Cease and desist from any physical contact with students in the performance of your duties that may give cause for students and/or adults to question your actions.

   2. Cease and desist from any action that would intentionally expose a student to unnecessary embarrassment or disparagement.

   3. Deal with all students and adults in a professional and ethical manner.

   4. Maintain a positive classroom climate free from threat or embarrassment in which mutual respect develops between students and teacher.

      Failure to abide with the above directives will be deemed as insubordination.

      
      

6. During the 1988-89 school year students Johanna Diaz and Monique Lafuente were assigned to Respondent's class. During this time, a number of incidents occurred in Respondent's classroom wherein Respondent unnecessarily embarrassed students or touched them inappropriately. On one such occasion, Respondent placed his hand in Johanna's front pocket and touched her breast. This touching was not accidental, nor was it prompted by the student's conduct. Other incidents which occurred included: Respondent's constant referral to female students who sat on the front of their chairs as "Bertha Butt" Respondent's statement to the students that their parents had made a big mistake (referring to the night of their conception) which he wished he could have stopped; Respondent repeatedly told the class that one day he would marry Maria Alcazar (a student in the class); Respondent took a female student (Monique) into a rear workroom on two occasions, hugged her, and attempted to touch her breast; Respondent grabbed a female student by the hips to push her back into her chair; and Respondent accused a student of cheating which embarrassed the student in front of the class.

7. When students advised the Stirrup administration of the activities described above, Respondent was relieved of his classroom assignment. Respondent's explanations regarding the acts and his denial of the incidents were not credible.

8. As a result of the foregoing conduct, Respondent's effectiveness to instruct in the Dade County public schools has been significantly impaired. Respondent failed to abide by the terms of the written reprimand and demonstrated an indifference to his students which resulted in repeated incidents of embarrassment and disparagement for them.

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

   
   

2. Section 231.36(4)(c), Florida Statutes, provides, in pertinent part:

   
   

   Any member of the district administrative or supervisory staff and any member of the instructional staff, including any principal, who is under continuing contract may be suspended or dismissed at any time during the school year; however, the charges against him must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude.

   
   

3. Rule 6B-4.009, Florida Administrative Code, defines misconduct in office as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.001, Florida Administrative Code, and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, Florida Administrative Code, which is so serious as to impair the individual's effectiveness in the school system.

   
   

4. In the case at issue, the Petitioners have established by clear and convincing evidence that the Respondent is guilty of misconduct and gross insubordination. The inappropriate touching of the students which resulted in embarrassment to them constitutes misconduct Moreover, since Respondent had been advised in 1985 to refrain from any contact other than as professionally indicated, and had been warned that such conduct would be deemed insubordination, his failure to abide by that warning, coupled with the severity of the acts subsequently committed, constitutes gross insubordination.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the School Board of Dade County, Florida, enter a final order dismissing the Respondent from his employment with the public school district.

That the Department of Education, Education Practices Commission enter a final order revoking the Respondent's teaching certificate.

DONE and ENTERED this 24th day of May, 1990, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 1990.

APPENDIX TO CASE NOS. 89-3668 AND 89-6802

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER, SCHOOL BOARD OF DADE COUNTY, FLORIDA:

1. Paragraph 1 is accepted.

2. With regard to paragraph 2, the first three sentences are accepted. The remainder of the paragraph is rejected as irrelevant or unsupported by the record.

3. Paragraph 3 is accepted in substance.

4. Paragraph 4 is accepted.

5. Paragraphs 5 and 6 are accepted.

6. Paragraph 7 is rejected as cumulative to the findings reached regarding students named Sasha, Johanna, and Monique.

7. Except as listed in findings of fact paragraph 6, paragraph 8 is rejected as cumulative or unnecessary.

8. Except as listed in findings of fact paragraph 6, paragraph 9 is rejected as cumulative, repetitive, or unnecessary.

9. Paragraph 10 is accepted.

10. Paragraph 11 is rejected as recitation of testimony.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER, BETTY CASTOR:

1. Paragraphs 1 through 11 are accepted.

2. Paragraph 12 is rejected as cumulative.

3. Paragraphs 13 through 16 are rejected as cumulative.

4. Paragraph 17 is accepted.

5. Paragraph 18 is accepted.

6. Paragraph 19 is accepted.

7. Paragraph 20 is accepted.

8. Paragraph 21 is rejected as cumulative.

9. Paragraphs 22 through 24 are accepted.

10. Paragraph 25 is rejected as recitation of testimony.

11. Paragraph 26 is accepted.

12. To the extent that substantively paragraphs 27 through 28 correctly state the community concern regarding this Respondent they are accepted; otherwise rejected as irrelevant or recitation of testimony.

13. Paragraphs 29 through 31 are rejected as recitation of testimony. It is accepted as fact that Respondent has embarrassed and disparaged students and that such conduct reached a level which demonstrates Respondent's effectiveness in the school and in teaching has been significantly impaired.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT:

1. Paragraphs 1 through 3 are accepted.

2. Paragraph 4 is rejected as contrary to the weight of credible evidence.

3. Paragraphs 5, 6, 7, 8, and 9 are rejected as contrary to the weight of the credible evidence, irrelevant, or supposition not supported by the weight of the evidence.

COPIES FURNISHED:

Frank Harder

Twin Oaks Building, Suite 100 2780 Galloway Road

Miami, Florida 33165

Mrs. Madelyn P. Schere Assistant School Board Attorney School Board of Dade County

Board Administration Building, Suite 301 1450 Northeast 2nd Avenue

Miami, Florida 33132

John A. Rudolph, Jr.

HUEY, GUILDAY, KUERSTEINER & TUCKER, P.A.

Post Office Box 1794 Tallahassee, Florida 32302

William DuFresne DuFRESNE AND BRADLEY

2929 S.W. Third Avenue, Suite One Miami, Florida 33129

Karen B. Wilde, Executive Director Education Practices Commission

301 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399

Martin Schaap, Administrator Professional Practices Services

319 West Madison Street Room 3

Tallahassee, Florida 32399

Honorable Betty Castor Commissioner of Education State of Florida

The Capitol

Tallahassee, Florida 32399

Dade County School Board Paul W. Bell, Superintendent

1444 Biscayne Blvd., Suite 215

Miami, Florida 33132

Docket for Case No: 89-003668

Orders for Case No: 89-003668