STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 92-2298

)

JOSE LOPEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on June 8 and 9, 1992, in Miami, Florida.

APPEARANCES

For Petitioner: James C. Bovell, Esquire

75 Valencia Avenue

Coral Gables, Florida 33134

For Respondent: William DuFresne, Esquire

DuFresne and Bradley

2929 Southwest Third Avenue Suite One

Miami, Florida 33129 STATEMENT OF THE ISSUE

Whether Respondent's employment as a continuing contract teacher with Petitioner should be terminated on the grounds of immorality, misconduct in office, or gross insubordination, as those terms are defined by rule.

PRELIMINARY STATEMENT

Respondent is a teacher who has been employed by Petitioner as a classroom teacher since 1974. At the times pertinent hereto, Respondent was employed at Kinloch Park Elementary School (Kinloch), one of the public schools in Dade County. Respondent's employment with Petitioner School Board was suspended on April 1, 1992, pending the outcome of this proceeding to terminate his employment. On or about May 9, 1992, Petitioner filed a "Notice of Specific Charges" against Respondent which contain certain factual allegations as to Respondent's behavior with certain female students and which charges Respondent in four counts with: Count I, immorality; Count II, misconduct in office; Count III, gross insubordination; Count IV, moral turpitude (if convicted of felony charges). Petitioner abandoned Count IV at the beginning of the formal hearing because the criminal charges upon which Petitioner relied in bringing that count were still pending.

At the formal hearing, Petitioner presented the testimony of Julia Warren, Margarita Barrett, Zina McNeal Jackson, Maria Vidauretta, Saile Lopez Sanchez, Yanet Rodriguez, Cynthia Martinez, and Patrick Gray. Ms. Warren is the Principal at Kinloch. Ms. Barrett and Dr. Jackson are teachers at Kinloch. Dr. Gray is the Assistant Superintendent of Schools for Petitioner and was accepted as an expert witness in the fields of performance assessment and professional ethics in the teaching profession. Maria Vidauretta, Saile Lopez Sanchez, Yanet Rodriguez, and Cynthia Martinez were, at the times pertinent to these proceedings, students at Kinloch. Petitioner presented eleven exhibits, ten of which were moved and accepted into evidence. Respondent testified on his own behalf and presented the testimony of Mercedes Reyes, Layda Vega, Mary Zamora, Amparo Carbonell, Anna Menacho, and Errolee Smith. Ms. Reyes and Ms. Vega are cafeteria workers at Kinloch. Ms. Zamora, Ms. Menacho, and Ms. Smith are teachers at Kinloch. Ms. Carbonell is the librarian or media specialist at Kinloch.

A transcript of the proceedings has been filed. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent hereto, Respondent was employed by Petitioner as a classroom teacher. Respondent had been employed by Petitioner for seventeen years. From 1985 through his suspension in April 1992, Respondent was assigned to Kinloch Elementary School, a public school in Dade County, as an elementary classroom teacher. Respondent, age 58, has three degrees, a bachelor's degree, a master's degree in science, and a specialist in education degree.

   
   

2. Respondent had a regular practice of kissing his female students on the hand or on the cheek, or of letting them kiss him on the cheek. Respondent was aware of the school board's policy which prohibited inappropriate contact between teachers and students. This policy was reflected in the policy handbook that was discussed with all teachers prior to the beginning of each school year. In addition, there had been prior, unsubstantiated allegations of inappropriate contact between Respondent and female students which resulted in Respondent being specifically advised of the school board's policy.

   
   

3. Maria Vidauretta (Maria) and Saile Lopez Sanchez (Saile) are females and, at the time of the formal hearing, were ages 12 and 11, respectively. At the times pertinent to this proceeding, Maria and Saile were students at Kinloch Elementary School. Maria and Saile were good friends. Although Maria was slightly older, Saile was considered to be the leader of the two.

   
   

4. Maria and Saile attended summer school at Kinloch during the summer term in 1991. Respondent had been Maria and Saile's math teacher during the summer of 1991 and had established a friendly teacher-student relationship with these two students. During the summer session the rules of discipline at Respondent's school were relaxed because of the fewer number of students attending. Respondent gave Maria and Saile special privileges, such as permitting them to sit on the stage in the cafeteria during lunch, and he gave them candy and told them not to tell the other students. Saile sometimes called Respondent "father" because they shared the name of Lopez.

   
   

5. Respondent was not Maria or Saile's teacher during the 1991-92 school year. Maria and Saile continued to be classmates as they were both assigned to the same classroom. 1/ Discipline during the regular school term is not as

   relaxed as it is during the summer term. Consequently, Respondent instructed Maria and Saile that they were not to sit on the stage in the cafeteria during lunch, and he told Saile not to call him father. Respondent also stopped giving the girls candy. This practice stopped after Ms. Warren, the principal of Kinloch, told Respondent to stop that practice after she had received a complaint from a parent. 2/

   
   

6. There is a conflict in the testimony as to whether Respondent kissed Maria in the school library on or about November 19, 1991. Maria and Saile testified in a clear and forthright manner at the formal hearing that Respondent kissed Maria on the mouth as alleged in the Notice of Specific Charges. Respondent testified that he was with the two girls in the library, but that he did not kiss Maria.

   
   

7. The conflict is resolved by finding, after weighing the credibility of the witness and the surrounding circumstances of the incident, that the greater weight of the evidence establishes that the following events occurred at Kinloch on November 19, 1991. Maria and Saile were in the school library immediately before lunch on the date in question along with their classmates, their teacher, the media specialist, and the Respondent. There were approximately 32 children in the class. The teacher returned to the classroom with nine of the students leaving the remaining 23 students, including Maria and Saile, in the library. Respondent's class was taking physical education and Respondent was in the library doing research in preparation for an upcoming science fair. At the time Maria and Saile first saw Respondent, he was working on a computer in the area of the library containing the encyclopedias. Maria and Saile came to the area in which Respondent was working and watched him work on the computer. Because he was unfamiliar with the computer software, Respondent was having difficulty with the computer. Saile tried to help Respondent, but she was unable to make the computer perform the desired tasks. Respondent next opened an encyclopedia to an optical illusion involving a picture of a flag. He first showed this optical illusion to Saile. After seeing the trick, Saile went to the front of the library to check out a book. While Maria was kneeling on the floor looking at the picture of the flag, Respondent grabbed Maria and kissed Maria on the mouth, forcing his tongue inside of her mouth. Saile returned to the area where Respondent and Maria were located and saw Respondent kissing Maria. Maria then pulled away from Respondent, Maria and Saile got into the lunch line, and the two girls left with their classmates for lunch in the cafeteria.

   
   

8. The library (media center) is an eight sided room with a column in the middle of the room and contains book cases, desks, and computer tables. On occasions, more than one class is taught in the media center. On the date in question, a large blackboard was in the media center. This blackboard was solid from top to bottom, it was on rollers, and was two sided 3/ so that it could be used to divide the two classes and shared by two teachers. The media specialist testified that the blackboard was positioned on the day in question at an angle so that she could see events occurring behind the blackboard from the area in which she was working. This testimony is accepted in part only because it is clear from the evidence presented that the view of the media specialist would have been at least partially obstructed by the blackboard. The area in which Respondent was sitting, which is where the incident allegedly occurred, is behind the blackboard. When the alleged incident occurred the media specialist was preoccupied with checking books for the students. The other students in the media center, none of whom testified, were lining up near the entrance of the media center to go to lunch and were generally facing away from where the incident occurred. While the media specialist testified that she saw nothing unusual on the day in question, her testimony does not establish that the events

   could not have occurred as Maria and Saile testified without her having seen the incident.

   
   

9. After Maria and Saile left the media center with their class, Respondent gathered his class from the physical education field and went to the lunch room where he had supervisory responsibilities. Respondent monitored the lunch period for the different classes by standing at one end of the cafeteria with a microphone.

   
   

10. At the cafeteria, Saile told Maria several times that she had seen Respondent kissing her. Maria repeatedly denied that Respondent had kissed her and asserted that Respondent merely showed her a book. These statements were overheard by Layda Vega, a cafeteria worker who was stationed at a cash register approximately 15 feet from where the two girls were sitting.

    
    

11. Respondent noticed that Saile and Maria appeared to be upset and crying. Respondent instructed Mercedes Reyes, a cafeteria worker, to go check on the two girls. Saile told Ms. Reyes that she had seen "him" kissing Maria. 4/ Maria denied that she had been kissed and asserted that she had only been looking at a book. Ms. Reyes took Maria and Saile outside of the cafeteria in order to avoid a disturbance. Respondent saw them exiting the cafeteria and followed them outside.

    
    

12. Respondent heard Saile accuse him of kissing Maria in the library. Respondent asked Maria if she had been kissed, fondled, abused, or touched in any way. Maria answered that question in the negative. Saile asserted that she had seen Respondent kiss Maria.

    
    

13. Neither Respondent nor Ms. Reyes reported the incident to Ms. Warren. That night, Saile reported the incident to her mother. An unnamed parent reported the incident to one of the school counselors on November 20, 1991. Thereafter, the incident became widely known at the school. Maria changed her statement and asserted that Respondent had kissed her as witnessed by Saile. 5/

    
    

14. An investigation into the allegations brought by Maria and Saile was initiated by Petitioner and by the Metro Dade Police Department. Respondent was arrested on November 22, 1991, on the charge of lewd and lascivious behavior.

    At the time of the formal hearing, Respondent had not been convicted of any crime. All charges had either been dismissed or were still pending. The incident received local television and newspaper coverage that identified Respondent and Kinloch Elementary School. The allegations were known throughout the school. Counsellors were brought into the school to deal with the school children, many of whom were confused, upset, and embarrassed by what had reportedly happened. Maria and Saile were accused by some of their peers of having lied about the Respondent. Maria transferred to another school following the incident.

    
    

15. Respondent's employment with Petitioner was suspended without pay at the school board meeting of April 1, 1992.

    
    

16. As part of the investigation that followed the incident with Maria, other students at the school were questioned by investigators and counsellors. One of the students who was questioned was Cynthia Martinez. Cynthia is a ten year old student at Kinloch who testified that Respondent kissed her and other female students on the cheek and on the hand almost every day. Cynthia also testified that Respondent kissed her on the mouth one day on the way to lunch. Cynthia also testified that Respondent engaged her in conversations about love

    on sugar (what was meant by that phrase was never explained) and doing sex carefully. Cynthia's testimony about Respondent kissing her and other females on the cheek and on the hand was consistent with the other evidence presented at the formal hearing and supports the findings made that Respondent engaged in that behavior. Cynthia's testimony that Respondent kissed her on the mouth one day on the way to lunch is vague and forms an insufficient basis upon which to base a finding of fact. Cynthia's testimony as to conversations she had with Respondent was also vague and also forms an insufficient basis upon which to base a finding of impropriety.

    
    

17. Yanet Rodriguez, a 13 year old former student at Kinloch, testified that on a date uncertain she opened the door of Respondent's class and saw that Respondent had a female student sitting on his lap. Yanet did not know when this happened, the name of the student who was sitting on Respondent's lap, or the circumstances that preceded the student sitting on his lap. Yanet testified that when this event occurred, Respondent's entire class was present. This vague testimony forms an insufficient basis upon which to base a finding of impropriety.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

    
    

19. Section 231.36(4)(c), Florida Statutes, provides, in pertinent part, as follows:

    
    

    (c) Any member of the ... instructional staff, 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.

    
    

20. Rule 6B-4.009, Florida Administrative Code, provides, in pertinent part, as follows:

    
    

    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. 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.

    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.

    3. 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.

       
       

21. Petitioner has established by a preponderance of the evidence that Respondent engaged in an immoral act within the meaning of Section 231.36(4)(c), Florida Statutes, and as defined by Rule 6B-4.009(2), Florida Administrative Code, by his act of kissing Maria in the mouth and inserting his tongue into her mouth. This act constitutes conduct that is inconsistent with the standards of public conscience and good morals and is sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect. Respondent's service in the community and the school system have been impaired.

    
    

22. Petitioner has established by a preponderance of the evidence that Respondent engaged in misconduct within the meaning of Section 231.36(4)(c), Florida Statutes, and as defined by Rule 6B-4.009(3), Florida Administrative Code, by his act of kissing Maria in the mouth and inserting his tongue into her mouth. Respondent's act constituted multiple violations of the provisions 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.

    
    

23. Petitioner has not established by a preponderance of the evidence that Respondent engaged in gross insubordination within the meaning of Section 231.36(4)(c), Florida Statutes, and as defined by Rule 6B-4.009(3), Florida Administrative Code, by his act of kissing Maria in the mouth and inserting his tongue into her mouth and by his kissing other female students on the hand and on the cheek. Gross insubordination or willful neglect of duties requires an intentional refusal to obey a direct order. Those elements of the definition of the term gross insubordination are not present in this proceeding. Respondent's failure to adhere to a code of conduct is misconduct, not gross insubordination.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which upholds the suspension of Respondent's employment and which terminates his continuing contract with the Petitioner.

RECOMMENDED this 7th day of August, 1992, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 7th day of August, 1992.

ENDNOTES

1/ From the record, it is not clear whether the teacher's name was Ms. Rama or Ms. Raymond.

2/ Respondent presented this evidence in an effort to discredit the testimony of Maria and Saile. After carefully weighing the evidence presented in this matter, it is concluded that Maria and Saile testified truthfully. No plausible motivation for Maria and Saile to fabricate their testimony was established.

3/ The side of the blackboard facing the front door will be referred to as the front side. The side facing the rear wall will be referred to as the back side.

4/ Saile testified that she initially denied that she saw Respondent kissing Maria and that she did so because she did not think she would be believed. This testimony is contrary to the testimony of Respondent and of Ms. Reyes. It is concluded that Saile was confused as to what she said immediately following the incident since it is clear that Saile repeatedly stated that she had seen Respondent kissing Maria.

5/ Maria could not remember the statements she made immediately following the incident. Consequently, neither party asked her to explain why she denied the incident occurred immediately following the incident. The fact that Maria initially denied that the incident occurred has been considered in weighing the credibility of the witnesses. Despite this denial immediately following the incident, it is concluded that Maria's testimony at the formal hearing was truthful.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2298

The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner.

1. The proposed findings of fact in paragraphs 1, 2, 5, 6, 7, 8, 9, and 10 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraphs 3, 4, 11, and 12 are rejected as being subordinate to the findings made.

3. The proposed findings of fact in paragraph 8 are adopted in material part by the Recommended Order. The proposed findings as to why Maria initially denied that the incident occurred are rejected because there was no evidence elicited on that issue. The proposed findings is a plausible explanation of Maria's reasons, but is no more than argument.

The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent.

1. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 18, 19, 20, 22, 23, and 24 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraph 9 are adopted in part by the Recommended Order. The proposed finding that the media center was six sided is rejected based on the testimony

   of the media specialist who testified that it is eight sided. The proposed finding that the room was not very large is rejected as being ambiguous. The proposed finding that the room could be observed by the people in the room is rejected as being ambiguous. The blackboard behind which the incident occurred obstructed the view of the incident. The proposed finding that there were approximately 30 students in the room at all times is rejected since the evidence established that some members of the class returned to the classroom with the teacher.

3. The proposed findings of fact in paragraph 17 are adopted in part by the Recommended Order. The proposed findings of fact in the last sentence of paragraph 17 are rejected as being contrary to the greater weight of the evidence.

4. The proposed findings of fact in paragraph 21 are adopted in material part by the Recommended Order.

5. The proposed findings of in the unnumbered paragraph following paragraph 21 are rejected as being contrary to the findings made and to the conclusions reached.

6. The proposed findings of fact in paragraph 25 are rejected as being contrary to the findings made.

7. The proposed findings of fact in paragraph 26 are rejected as being unnecessary to the conclusions reached, but are treated as a preliminary matter.

8. The proposed findings of fact in paragraph 27 are rejected as being subordinate to the conclusions reached in the Conclusions of Law portion of the Recommended Order.

COPIES FURNISHED:

Octavio J. Visiedo, Superintendent Dade County Public Schools

School Board Administration Building 1450 Northeast Second Avenue

Miami, Florida 33132

Honorable Betty Castor Commissioner of Education Department of Education The Capitol

Tallahassee, Florida 32399-0400

Sydney H. McKenzie, General Counsel Department of Education

The Capitol, PL-08

Tallahassee, Florida 32399-0400

James C. Bovell, Esquire

75 Valencia Avenue

Coral Gables, Florida 33134

William DuFresne, Esquire DuFresne and Bradley

2929 Southwest Third Avenue Suite One

Miami, Florida 33129

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 92-002298

Orders for Case No: 92-002298