STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, ) FLORIDA )

)

Petitioner, )

)

vs. ) CASE NO. 89-6945

)

ERIC FARBER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Jane C. Hayman, held a formal hearing in the above- styled case on May 3, 1990 in Miami, Florida.

APPEARANCES

For Petitioner: Phyllis O. Douglas, Esquire

School Board of Dade County, Florida Suite 301

1450 N.E. Second Avenue Miami, Florida 33125

For Respondent: Don S. Cohn, Esquire

1504 N.W. 14th Street Miami, Florida 33125

STATEMENT OF THE ISSUES

The issue presented is whether Respondent committed the offenses set forth in the specific notice of charges and, if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

By action taken at a meeting on December 6, 1989, Petitioner, School Board of Dade County, Florida, suspended Respondent, Eric D. Farber, from his employment as a continuing contract employee, effective at the end of the workday on that same date. The grounds asserted for Petitioner's action were Respondent's alleged immorality, misconduct in office and conviction of a crime involving moral turpitude, upon such conviction. By letter dated December 7, 1989 Respondent timely requested a hearing to contest the action. The matter was referred to the Division of Administrative Hearings by Petitioner on December 13, 1989 with a request that a Hearing Officer be assigned to conduct a hearing. On January 16, 1990, a Specific Notice of Charges was served on Respondent. The Notice sets out in detail the legal grounds for Petitioner's action, contains factual allegations concerning Respondent and forms the basis of the administrative complaint filed in this case.

Throughout this recommended order, the minors involved in the proceeding are referred to by their initials to preserve their confidentiality.

At the hearing, Petitioner presented the testimony of eight witnesses and offered four exhibits which were received into evidence. Respondent did not testify, but offered five exhibits which were received into evidence. A transcript of the proceeding was ordered and filed on June 1, 1990. Proposed findings of fact were due on June 11, 1990. Petitioner timely filed proposed findings of fact; however, Respondent has not likewise timely filed. A ruling on each proposed finding of fact has been made and is reflected in the appendix to this recommended order.

FINDINGS OF FACT

1. At all times material hereto, Respondent, Eric Farber, was employed as a psychologist by Petitioner, School Board of Dade County, Florida. At the time of his suspension on December 6, 1989, Petitioner served under a continuing contract.

   
   

2. In the Summer of 1989, while at Booker T. Washington Middle School in Miami, Florida, Respondent requested, at least, five female students to remove portions of their clothing while he gave them physical examinations. The proof did not indicate that Respondent was qualified to perform physical examinations of the students or that Petitioner had authorized the examinations.

   
   

3. In the Summer of 1989, L.B., was a student at Booker T. Washington.

   L.B. is a fifteen year old female. According to L.B., she was called to Respondent's office by another student for examination by Respondent. When she arrived, Respondent told her to remove her blouse and brassiere. He told L.B. that he was checking her for breast cancer. L.B. was pregnant at the time. Respondent touched both breasts and then asked her to pull up her skirt that he could examine her vagina. He inserted his finger into her vagina. L.B. then dressed herself and left the room. L.B. thought Respondent was a medical doctor and that his examination was appropriate.

   
   

4. M.C. was also a student at Booker T. Washington in the Summer of 1989.

   M.C. is a fifteen year old female. L.B. told M.C. that Respondent was a doctor who was there to see her. M.C., then, went to Respondent's office. L.B. and

   M.C. had been friends for over two years. According to M.C., Respondent asked her to fill out some forms. He then asked her to go into the part of the room where he could examine her. The room was separated by a divider which prevented the person seated on one side from seeing the activity on the other side. He asked her to take off her underpants. After a short discussion about problems with her menstrual flow, Respondent touched her vagina and asked her to remove her blouse while he also touched her breasts. Although M.C. did not think Respondent's actions were normal or appropriate, she allowed him to touch both her vagina and her breasts. She, then, told him to stop, and she left the room.

   
   

5. Another student at Booker T. Washington that same Summer was T.S. She is a thirteen year old female. According to T.S., she was called to Respondent's office by an office aide. When she arrived, Respondent asked her to wait on one side of the room and draw pictures. L.B. was on the other side of the room being examined while T.S. was waiting. T.S. thought,she heard L.B. scream and did see her leave, appearing to be nervous. When T.S. went into the room for her examination, Respondent asked her to take off her blouse and brassiere, told her he was going to check her for breast cancer and questioned

   her about the onset of her menses. T.S. removed her clothing as requested, and Respondent, then, touched her breast and her anus. He then remarked that he had mistaken her for another male and sent her back to class.

   
   

6. The fourth female student of the group is D.E. She is fourteen years old. According to D.E., Respondent visited D.E.'s classroom in the Summer of 1989 and picked D.E. out of a group of students identified as being from a neighborhood called Riverside. Respondent took D.E. to his office. D.E. understood that Respondent was examining the female students from the Riverside area because of some problem there. Respondent asked her to take off her blouse and brassiere for a breast examination. She refused to do so and returned to her class where she informed her teacher what Respondent was asking.

   
   

7. Another female student at Booker T. Washington during the Summer of 1989 was J.N. who is fifteen years old. She was approached by Respondent while she was lying on a cot in the attendance office. According to J.N., Respondent asked if he could see her, that he had something for her. He escorted her into a small office and introduced himself as the school doctor. He then asked her to go into the next room and take off her blouse. When he entered the room, he touched both of her breasts and began explaining parts of the vaginal area to her. He told her to turn around and bend over while he examined her vagina. He placed his finger in her vagina and touched her anus. When she put her pants back on, he told her that he had been checking all the girls from Riverside. He found her vagina to be too narrow and suggested that she rub it to enlarge the opening. J.N. allowed Respondent to touch her because she believed that he had been sent by Petitioner to perform the examinations. J.N. was too embarrassed by the incident to tell her parents.

   
   

8. Members of the news media came to the school and tried to interview members of the faculty about Respondent's actions, and the news media of the Miami area carried coverage of the incidents. As a result of his action and the notoriety resulting from it, Respondent, the school and the education profession suffered public disgrace. Respondent's colleagues lost respect for him and his abilities as an education professional, impairing his service to the community.

   
   

9. For the 1988-89 school year, Respondent's annual evaluation was acceptable. He received several notable professional awards during his tenure in education, including being selected as a finalist for the teacher of the year award offered by the Dade County PTA in the South Central Area. At the hearing, Respondent did not testify, and the testimony of the students about the events at issue is deemed credible.

   
   

10. Although Respondent may in the past have been an outstanding teacher, his actions, during the Summer of 1989 were intentional, unethical and inconsistent with the standards of public conscience. They resulted in creating such public disgrace for the education profession that his effectiveness in the school system was impaired and caused unnecessary embarrassment to the students involved.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.

12. Since Petitioner seeks only to dismiss Respondent as an employee, but not to revoke his teaching certificate, it need only prove the allegations set forth in the Specific Notice of Charges by a preponderance of the evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

13. The Specific Notice of Charges alleges that Respondent is guilty of immorality and misconduct in office within the meaning of Section 231.36(4), Flcrida Statutes and is subject to dismissal as a result. Petitioner has sustained its burden as to the allegations of immorality and misconduct in office.

    
    

14. For the purposes of Section 231.36(4), immorality is defined in Rule 6B-4.009(2), Florida Administrative Code, which reads 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 concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.

       
       

       Respondent's conduct toward the female students was inconsistent with the standards of public conscience and good morals. When the incident's were publicized by the news media in Miami, the proof demonstrated that the notoriety resulting from the articles and the reporters' visits to the school was sufficient to bring Respondent, the school and the education profession into public disgrace and to impair Respondent's future service to the community.

       Accordingly, Petitioner has sustained its burden of proof that Respondent violated Rule-4.009(2) and is guilty of immorality for the purposes of Section 231.36(4).

       
       

       Misconduct in office is, likewise, defined in paragraph (3) of Rule 6B-

       4.009 as follows:

       
       

    2. 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.

       
       

       The Code of Ethics of the Education Profession in Florida, referred to in Rule 6B-4.009(3) and as stated, in relevant part, in Rule 6B-1.001(3), Florida Administrative Code, provides as follows:

       
       

       (3) Aware of the importance of maintaining the respect and confidence

       of ... students, the educator strives to achieve and sustain the highest degree

       of ethical conduct.

       The Principles of Professional Conduct to the Education Profession in Florida as adopted in Rule 6B-1.006(3), Florida Administrative Code provides, in pertinent part, as follows:

       
       

       (3) Obligation to the student requires that the individual:

       (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

       
       

15. When Respondent performed the fallacious examinations of the students at Booker T. Washington, his acts were unethical and intentional, and his acts, in addition to the notoriety resulting from them, exposed the students to unnecessary embarrassment or disparagement in breach of the Code of Ethics of the Education Profession in Florida and the Principles of Professional Conduct to the Education Profession of Florida in violation of Rule 6B-4.009(3). Those acts, combined with his conduct which was inconsistent with the standards of public conscience and was a public disgrace of the education profession, were serious enough to impair Respondent's effectiveness in his service not only to the community and but to the school system, as well. Thus, Respondent committed misconduct in office for the purposes of Section 23l.36(4), Florida Statutes.

    
    

16. The Specific Notice of Charges also alleges that Respondent is subject to dismissal for the conviction of a crime involving moral turpitude as defined in Rule 6B-4.009(c), Florida Administrative Code. The proof was silent concerning the conviction of any such crime, and thus, Petitioner failed to sustain its burden as to that allegation.

    
    

17. Also, the Specific Notice of Charges alleges that Respondent's acts were in violation of School Board of Dade County, Florida Rules 6Gx12-4A-1.121 and 6Gx13-4C-1.01. A request for official recognition of Rule 6Gx12-4A-1.121 was not made nor was the specific rule offered or admitted into evidence. Thus, no determination is made concerning a violation of Rule 6Gx12-4A-1.121. On the other hand, Rule 6Gx13-4C-1.01 was received into evidence. In part, the rule endorses the Code of Ethics of the Education Profession. Accordingly, as stated above, Respondent's breach of the Code of Ethics of, the Education Profession constitutes a violation of Rule 6Gx12-4C,-1.01.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the School Board of Dade County, Florida issue a Final

Order dismissing Respondent, Eric D. Farber, as an employee of the School Board of Dade County, Florida without back pay or benefits.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of June, 1990.

JANE C. HAYMAN

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 15th day of June, 1990.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6945

The following represents the rulings on the proposed findings of fact submitted in this case. The ruling reflects the number of the paragraph which addresses the proposed finding of fact, if applicable.

1. Adopted in paragraph 1.

2. Adopted in relevant part in paragraph 7.

3. Adopted in relevant part in paragraph 7.

4. Adopted in paragraph 7.

5. Adopted in relevant part in paragraph 7.

6. Adopted in paragraph 7.

7. Adopted as subordinate to the findings of fact.

8. Adopted in paragraph 3.

9. Adopted in paragraph 3.

10. Adopted in paragraph 3.

11. Adopted in paragraph 3.

12. Adopted in paragraph 3.

13. Adopted in paragraph 4.

14. Adopted in relevant part in paragraph 4.

15. Adopted in paragraph 4.

16. Adopted in paragraph 6.

17. Adopted in paragraph 6.

18. Adopted as subordinate to the findings of fact.

19. Adopted in paragraph 5.

20. Adopted in paragraph 8.

21. Adopted as subordinate to the findings of fact.

COPIES FURNISHED:

Phyllis O. Douglas, Esquire

School Board of Dade County, Florida Suite 301

1450 Northeast Second Avenue Miami, Florida 33125

Don S. Cohn, Esquire

1504 Northwest 14th Street Miami, Florida 33125

Paul W. Bell Superintendent of Schools Dade County Public Schools

1450 Northeast Second Avenue Miami, Florida 33132

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

Docket for Case No: 89-006945

Orders for Case No: 89-006945