STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, ) FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2424

)

BERNARD N. PEART, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on July 13, 1993, in Miami, Florida.

APPEARANCES

For Petitioner: Gerald A. Williams, Esquire

Mack and Bernstein

1450 North East 2nd Avenue, Suite 562 Miami, Florida 33132

For Respondent: William Du Fresne, Esquire

Du Fresne and Bradley

2929 South West Third Avenue Miami, Florida 33129

STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of the allegations contained within the Amended Notice of Specific Charges, and, if so, what disciplinary action should be taken against him, if any.

PRELIMINARY STATEMENT

By letter dated February 18, 1993, Petitioner advised Respondent that he was suspended from his employment as a school monitor and that disciplinary proceedings were being initiated against him, and Respondent timely requested a formal hearing regarding that determination. This cause was thereafter transferred to the Division of Administrative Hearings to conduct a formal hearing. Petitioner filed its Notice of Specific Charges on June 15, 1993, and its Amended Notice of Specific Charges on June 25, 1993.

Petitioner presented the testimony of Respondent Bernard N. Peart, Cherie Monique Devereau, Michael B. Malone, Ana Marie Smith, Keisha Wright, Pauline Francis, and Elaine White. The Respondent also testified on his own behalf.

Additionally, Petitioner's Exhibits numbered 1-4 were admitted in evidence.

Both parties submitted post-hearing proposed findings of fact. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent was employed by the School Board as a school monitor, assigned to North Miami Middle School.

   
   

2. At the beginning of his employment with the School Board in September 1988, Respondent received formal training in his duties and responsibilities as a school monitor. He also attended formal training sessions approximately twice a year thereafter where he received similar training. Additionally, informal training sessions were held on a regular basis at the school site.

   
   

3. During those training sessions the job description of a school monitor was specifically reviewed, and the monitors were instructed not to fraternize or socialize with the students. As to those matters required to be reported, the job description for school monitors specifically provides as follows:

   
   

   reports [sic] serious disturbances to the school administration and correct minor altercations. . . .Report any safety or security problems to the administration.

   
   

4. During the 1991-92 school year Keisha Wright was a student in the ninth grade at North Miami Middle School. She was friendly with the school monitors and gave several of them, including Respondent, keychains which she had made.

   
   

5. In approximately February of 1992 Respondent found a notebook belonging to Wright in the school cafeteria. When he glanced through it he saw his name written on top of one of the pages. The notebook also contained some romantic thoughts Wright had written about Respondent. He returned the notebook to her and never saw it again.

   
   

6. Thereafter, Wright began writing notes to Respondent which she gave to him or had her friend give to him. Wright personally gave him two notes while she was a student at the school, and approximately four notes were given to him when she was not attending that school. Respondent read some of the notes and threw some away without reading them.

   
   

7. One of the notes had her phone number written at the top. Respondent called her from school, using that phone number, on one occasion to tell her to stop sending him notes but Wright's grandmother took the telephone and told Respondent not to call there again.

   
   

8. On one occasion Respondent, who lived on Sixth Avenue in North Miami as did Wright, was driving past her home at approximately 8:00 p.m. and saw her standing on the sidewalk. Respondent stopped in front of the house and spoke with Wright for approximately five minutes. During that conversation he again told her not to send him any other notes. That was the only occasion on which Respondent went to Wright's home.

   
   

9. Respondent did not engage in sexual contact with Wright in September of 1992.

10. Respondent did not report to any administrator at North Miami Middle School the fact that Wright had given him several notes or that Wright had written romantic thoughts in her personal notebook regarding Respondent.

    Neither the formal training sessions nor the informal training sessions conducted by Petitioner for its school monitors ever addressed the procedures to be followed by school monitors if they received romantic notes or letters from students.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. Section 230.23(5)(f), Florida Statutes, authorizes the School Board to suspend or dismiss its employees. The Amended Notice of Specific Charges filed in this cause alleges that Respondent is guilty of conduct unbecoming an employee and is guilty of misconduct in office, both in violation of School Board Rule 6Gx13-4A-1.21. That Rule requires that all employees of the School Board conduct themselves in a manner to reflect credit upon themselves and the school system. That Rule specifically requires that employees of the School Board report any criminal act and/or disruptive behavior occurring on School Board property and further provides that personnel willfully failing to report such occurrences will be subject to disciplinary action. Petitioner has failed to meet its burden of proving that Respondent has violated School Board Rule 6Gx13-4A-1.21.

    
    

13. Although Respondent was under an affirmative duty to report any criminal act or disruptive behavior, Petitioner has failed to prove that any criminal act or disruptive behavior occurred which Respondent failed to report. Losing or returning a lost notebook to a student does not constitute a criminal act, disruptive behavior, or fraternization. Similarly, telling a student not to write him notes, like the actual writing of the notes, does not constitute a criminal act, disruptive behavior, or fraternizing with a student. Although Petitioner argued that Respondent failed in his duty to report, the evidence is uncontroverted that the training sessions, both formal and informal, attended by Respondent did not address the procedures to be followed by school monitors who received notes from students. Likewise, the school monitor job description does not establish an affirmative duty to report Wright's innocuous behavior.

    
    

14. The real thrust of Petitioner's allegations in this cause is that Respondent encouraged a young female's fantasies and ultimately engaged in sexual intercourse with her. Respondent's testimony that he did not do so is credible; the student's testimony that he did was not credible.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty of

the allegations contained within the Amended Notice of Specific Charges filed against him in this cause and reinstating Respondent to his position as a school monitor with full back pay.

DONE and ENTERED this 18th day of November, 1993, at Tallahassee, Florida.

LINDA M. RIGOT

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 18th day of November, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2424

1. Petitioner's proposed findings of fact numbered 2-8 have been adopted either verbatim or in substance in this Recommended Order.

2. Petitioner's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law.

3. Petitioner's proposed findings of fact numbered 9-16 have been rejected as not being supported by the weight of the credible evidence in this cause.

4. Respondent's proposed finding of fact numbered 1 has been accepted in substance in this Recommended Order.

COPIES FURNISHED:

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

Gerald A. Williams, Esquire Mack and Bernstein

1450 North East 2nd Avenue, Suite 562 Miami, Florida 33132

William Du Fresne, Esquire Du Fresne and Bradley

2929 South West Third Avenue 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.

=================================================================

AGENCY FINAL ORDER

================================================================= THE SCHOOL BOARD OF DADE COUNTY, FLORIDA

BERNARD N. PEART,

Respondent,

1. CASE NO. DOAH 93-2424

   
   

   THE SCHOOL BOARD OF DADE COUNTY, FLORIDA,

   
   

   Petitioner.

   /

   
   

   FINAL ORDER

   THE SCHOOL BOARD OF DADE COUNTY, FLORIDA

   
   

   THIS CAUSE came on for hearing before The School Board of Dade County, Florida, at its regular meeting of January 5, 1994, upon the Hearing Officer's Findings of Fact, Conclusions of Law, and the Recommended Order, filed and entered by the Hearing Officer on November 18, 1993, and Exceptions thereto, filed on behalf of the Superintendent by the Labor Attorney, and the Board, after reviewing the complete record and having considered the Recommended Order, the Exceptions, and having heard arguments of Counsel, and having been advised in the premises, it is Therefore,

   
   

   ORDERED AND ADJUDGED:

   
   

   1. The Board has reviewed the complete record in the above-styled case.

      
      

   2. The Board approves and adopts the Hearing Officer's Findings of Fact and Conclusions of Law, except those which conflict with the Superintendent's Exceptions, which are approved and adopted by the Board.

      
      

   3. The Board approves and adopts the following modifications to the Hearing Officer's

      
      

      Findings of Fact:

      
      

      1. The Hearing Officer, in Item 5 of the Findings of Fact, characterized the entries in the female student's notebook concerning Respondent as "some romantic thoughts." Respondent admitted that he read in the notebook that the student was fantasizing about him (T-14), and that she wanted to have Respondent's children. (T-14). The Board finds that, based upon Respondent's reading of the student's notebook, he should have forthwith reported this

         incident to his immediate supervisor. Based upon a review of the entire proceedings, the Board concludes that Respondent's failure to report constituted poor judgement which did not reflect credit upon himself.

         
         

      2. The Hearing Officer, in her Findings of Fact, paragraph 7, found that Respondent called student on only one occasion. The Respondent was trained, according to the testimony of Mr. Michael B. Malone, Coordinator for the Dade County Public Schools Police Department, to observe the actions of students and to report any incidents to the assistant principal. (T-45 and 48). The Respondent is not expected to handle any incidents himself. (T-34). He is expected and required to report the incidents to his supervisor (T-31, 32, 34). Moreover, the Respondent was trained regarding the prohibition against fraternizing with students. (T-27, 31, 32, 34, 37). Therefore, the Board finds that the Respondent should not have called the juvenile's home at any time. (T- 33, 34). Thus, the actions by the employee constituted poor judgement which did not reflect credit upon himself.

         
         

      3. The Hearing Officer, in her Findings of Fact, paragraph 8, found that Respondent visited student's home on only one occasion, and that, on this occasion, he stayed only a short time and never entered the house. Moreover, prior to the student's parent coming to the school, the Respondent failed to advise any administrator regarding the activity of the student. (T-30). The training received by the Respondent precludes him from visiting the homes of students. (T-46). The Respondent's visiting with the student at her home and failure to advise his administrator was a violation of his training and constituted poor judgement which did not reflect credit upon himself.

         
         

   4. Based upon the aforementioned, the School Board makes the following additional Findings of Fact and modifications to the Conclusions of Law to the Hearing Officer's Recommended Order:

      
      

      ADDITIONAL FINDINGS OF FACT

      
      

      1. The School Board finds that the contents of the student's notebook constituted "abnormal" activity within the parameters outlined in Respondent's training sessions and therefore, the Respondent should have reported the discovery of the notebook to an administrator. (T-37, 38, 39, 42, 43).

         
         

      2. The School Board finds that Respondent had an affirmative duty to report his contact with the student and that Respondent was aware of this duty via training sessions that he attended. (T-43, 45).

         
         

      3. The School Board finds that Respondent's actions in telephoning the student constituted poor judgement. (T-34, 38, 39, 40).

         
         

      4. The School Board finds that the Respondent's act of showing the notebook to his fellow security monitors constituted poor judgement which did not reflect credit upon himself.

MODIFICATIONS TO HEARING OFFICER'S CONCLUSIONS OF LAW

1. The Hearing Officer, in her Conclusions of Law, paragraph 13, found that Respondent had no duty to report his contact with the student to his immediate supervisor. Based upon a review of the entire proceedings, the Board concludes that the Hearing Officer was in error regarding Respondent's duty to report. The Board finds that Respondent's contact with the student was of a

   sufficiently serious nature as to place upon him an affirmative duty to report these incidents to his immediate supervisor. (T-31, 32, 34, 37, 42, 43, 45,

   46).

   
   

2. Pursuant to School Board Rule 6Gx13-4A-1.21(1), all persons employed by The School Beard of Dade County, Florida are representatives of the School Board. As such, they are expected to conduct themselves in a manner that will reflect credit upon themselves and the school system. The above-referenced actions by the employee did not reflect credit upon himself and, therefore, constitutes conduct unbecoming a School Board employee.

IT IS FURTHER ORDERED AND ADJUDGED, that the School Board, based on Respondent's conduct in telephoning the student, visiting the student's home, showing the diary to other security monitors, and failing to report the student's conduct to an administrator, modifies the Hearing Officer's Recommended Order and dismisses the Respondent from all employment with the School Board, based upon poor judgement which did not reflect credit upon himself, and therefore constitute conduct unbecoming a School Board employee. The Respondent's actions violate School Board Rule 6Gx13-4A-1.21.

DONE AND ORDERED this 5th day of January 1994. THE SCHOOL BOARD OF DADE COUNTY, FLORIDA

Betsy H. Kaplan, Chairperson

================================================================= DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JANUARY TERM, 1994

BERNARD PEART, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND

Appellant, DISPOSITION THEREOF IF FILED.

vs.

THE SCHOOL BOARD OF DADE DOAH CASE NO. 93-2424 COUNTY, FLORIDA, CASE NO. 94-115

Appellee.

/ Opinion filed June 7, 1994.

An Appeal from the School Board of Dade County, Florida.

Du Fresne and Bradley, and William Du Fresne, for appellant. Gerald A. Williams, for appellee.

Before BARKDUFF, JORGENSON, and GERSTEN, JJ.

PER CURIAM.

Affirmd. S 120.57(1)(b)10, Fla. Stat. (1993); Reese v. Department of Professional Regulation, 471 So. 2d 601, 603 (Fla. 1st DCA 1985); Ford v. Bay County Sch. Bd., 246 So. 2d 119, 121- 22 (Fla. 1st DCA 1970).

Docket for Case No: 93-002424

Orders for Case No: 93-002424