STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, ) FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2723

)

WILFREDO D. RIVERA-CARDE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case at Miami, Florida, on October 19, 20, and 21, and November 16, 1993, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties at the hearing were as follows:

APPEARANCES

For Petitioner: James Claude Bovell, Esquire

3211 Ponce de Leon Boulevard Coral Gables, Florida 33134

For Respondent: Roberta Fulton Fox, Esquire

Gold and Fox, P.A.

20th Floor, First Union Financial Tower

200 South Biscayne Boulevard Miami, Florida 33131

STATEMENT OF THE ISSUES

This is a case in which the Petitioner seeks to suspend and terminate the Respondent's employment on the basis of allegations of misconduct set forth in a Notice of Specific Charges. The allegations of misconduct charge the Respondent with immorality, misconduct in office, incompetency, and conviction of a crime involving moral turpitude.

PRELIMINARY STATEMENT

To facilitate an understanding of what follows in this Recommended Order, the most significant of the allegations of misconduct in the Notice of Specific Charges are set forth immediately below:

1. During the 1992/1993 school year, while employed as a JROTC Instructor at Miami Jackson Senior High School, respondent continuously behaved towards female students in a manner that is outside the scope of the ordinary teacher/ student relationship and is otherwise repugnant,

   offensive and immoral. On numerous occasions he engaged in inappropriate conduct with his female students that made them feel uncomfortable, including, but not necessarily limited to, the following:

   1. Made detailed statements to male and female students regarding his desires to commit very explicit and specific sexual acts with some of the female students;

   2. solicited sexual favors from female students;

   3. Boasted to female students that, although he was an older man, his sexual potency was comparable to any 15-year old male, and that he needed sex several times a day.

   4. paid money for sexual favors or in an attempt to extract sexual favors;

   5. grabbed one female student, held her firm and then kissed her neck various times while running his hand all about her body;

   6. Repeatedly grabbed female students from behind, rubbed the genital area of his body against their buttocks and pulled them towards him while firmly holding and massaging both their breasts;

   7. repeatedly rubbed or otherwise manhandled the buttocks of his female students; and

   8. intimidated and otherwise threatened female students with personal disgrace, failing grades and dismissal from the JROTC Program.

2. Respondent was arrested and charged by the Miami Police Department, with two counts of lewd and lascivious acts against a child, a felony offense.

During the course of the formal hearing the Petitioner offered the testimony of nine witnesses; the Principal of Miami Jackson Senior High School and eight students 1/ who attended, or had previously attended, that school. 2/ The Petitioner offered five documentary exhibits that were received in evidence. 3/ The Petitioner also wished to present the testimony of several other student witnesses, but did not call them at the formal hearing. 4/

The Respondent presented the testimony of one student witness (S. S.) and offered six documentary exhibits that were received in evidence. 5/ The Respondent did not testify at the formal hearing. 6/

At the conclusion of the hearing the parties requested and were allowed 15 days from the filing of the transcript within which to submit their proposed recommended orders. The transcript was filed with the Hearing Office on December 21, 1993. Extensions of time for the filing of proposed recommended orders were twice granted, with the final deadline being January 31, 1994. Both parties filed timely proposed recommended orders containing proposed findings of fact and conclusions of law. The parties' proposals have been carefully considered during the preparation of this Recommended Order. Specific rulings on all findings of fact proposed by all parties are contained in the appendix hereto.

To facilitate an understanding of the reasons for the Findings of Fact which follow and, perhaps more importantly, an understanding of the reasons many of the proposed findings are not included in the Findings of Fact which follow, it is first noted that the testimony of the student witnesses who testified at the formal hearing in this case was, for the most part, found to be inherently unreliable, untrustworthy, and not worthy of belief. This evaluation of the evidence is based in large part on the fact that much of the student witness testimony was expressed in vague, imprecise, and uncertain terms, much of the testimony was fraught with inconsistencies, much of the testimony conflicted with prior statements by the same witness, and some of the testimony appeared to have been rehearsed and coordinated with other witnesses. Further, several of the witnesses seemed to have little regard for the truth and appeared to be disposed to invent details as they went along. Because of the generally unreliable nature of most of testimony of the student witnesses, very few findings of fact have been made on the basis of that testimony. 7/

In addition to the generally unreliable nature of the testimony, much of the testimony at the formal hearing was about matters that were not alleged in the Notice of Specific Charges and are, therefore, irrelevant to the disposition of this proceeding.

FINDINGS OF FACT

1. At all times material to this proceeding, the Respondent, Wilfredo D. Rivera-Carde, was employed by the School Board of Dade County pursuant to a professional service contract as a JROTC Instructor assigned to Miami Jackson Senior High School.

   
   

2. During the course of his employment as a JROTC Instructor, the Respondent's students in the JROTC program included the following: T. F., S. G., I. R., E. P., and B. V. Of these, all but B. V. were females.

   
   

3. At all times material hereto, the JROTC Instructors had their offices in a large room that was divided by large cabinets and other furniture into two offices. The back office was the Respondent's office. The back office was accessible via a passage way from the larger office occupied by the other two JROTC Instructors. The passage way was formed by tall cabinets on both sides.

   
   

4. During the 1992-93 school year, I. R., who was at that time a female student enrolled in the JROTC program, was one of the JROTC clerks. In her capacity as clerk she was required to perform clerical duties in the Respondent's office on a frequent basis. When I. R. was performing those clerical duties, often the only other person in the back office was the Respondent.

   
   

5. At all times material hereto, the School Board's employee conduct rule was in effect at Miami Jackson Senior High School. The rule provides that teachers must maintain a proper relationship with all of their students and prohibits inappropriate touching of students by teachers. The employee conduct rule is incorporated in the teacher handbook, a copy of which is provided to each teacher each year. Moreover, it is the practice of the Principal at Miami Jackson Senior High School to review the employee conduct rule with all teachers during orientation at the beginning of each school year and at faculty meetings throughout the year.

6. During the course of the Petitioner's investigation of this matter, the Petitioner provided the information it had gathered to police authorities. In March of 1993 the Respondent was arrested on criminal charges filed by female students, T. F. and I. R. The criminal charges against the Respondent have since been dismissed by the Office of the State Attorney.

   
   

7. For the reasons mentioned in the Preliminary Statement, in the Endnotes, and in the Appendix, the evidence in this case is insufficient to prove any of the allegations of misconduct set forth in the Notice of Specific Charges.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57(1), Fla. Stat.

   
   

9. In a case of this nature, the Petitioner has the burden of establishing by a preponderance of the evidence the allegations against the Respondent.

   Dileo v. School Board of Dade County, 15 FLW 2781 (Fla. 3d DCA Nov. 13, 1990); Allen v. School Board of Dade County, 16 FLW 69 (Fla. 3d DCA Jan. 4, 1991).

   
   

10. The quality of the evidence in this case is in many ways similar to the quality of the evidence discussed in such cases as Texton v. Hancock, 359 So.2d 895 (Fla. 1st DCA 1978), and Laney v. Board of Public Instruction, 153 Fla. 728, 15 So.2d 748 (1943). In both of those cases instructional employees (a teacher and a principal, respectively) were the subjects of termination proceedings on the basis of allegations of various incidents of scandalous and outrageous behavior. And in both of those cases the reviewing courts found that the evidence was insufficient to support the charges and ordered the reinstatement of the employees. With regard to such evidence, in Laney, supra, the Florida Supreme Court said, at 753:

    
    

    The general rule is that administrative findings, in order to be upheld by the courts, must be supported by substantial evidence. This means that there must be evidence which supports a substantial basis of fact from which the fact in issue can be reasonably inferred. It must do more than create a suspicion of the fact to be established, and must be such relevant evidence as a reasonable mind would accept as adequate to support a conclusion.

    
    

    The foregoing language from Laney was quoted with approval by the First District Court of Appeal in Texton, supra, where the court also concluded, at 897:

    
    

    The problem with the great bulk of the evidence here is that it was simply not of such relevant character as a reasonable mind would accept as adequate to support the conclusions reached.

    
    

11. For reasons mentioned in the Preliminary Statement, in the Endnotes, and in the Appendix, the evidence presented against the Respondent was unpersuasive and was insufficient to establish the allegations of misconduct set forth in the Notice of Specific Charges. Because the evidence is insufficient to establish any of those allegations, the charges against the Respondent should be dismissed. 8/

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that the Dade County School Board issue a Final Order in this case dismissing all charges against the Respondent.

DONE AND ENTERED this 5th day of October, 1994, at Tallahassee, Leon County, Florida.

MICHAEL M. 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 5th day of October, 1994.

ENDNOTES

1/ In places in this Recommended Order where reference is made to a specific student, initials have been substituted for the student's name. For those with a need to know, the full names are reported in the transcript of the proceedings at hearing.

2/ The Respondent objected to the presentation of any testimony by two of the student witnesses called by the Petitioner. The objections were sustained and those two witnesses (J.A. and A.C.) were not permitted to testify regarding any alleged misconduct of the Respondent. The nature of the objections and the rulings on same are reported at the following pages of the transcript: 13-22 and 52-62. The rulings excluding the testimony were based primarily on the fact that to do otherwise would have deprived the Respondent of fundamental fairness under the circumstances of this case. The most significant of the circumstances are that the School Board did not provide the Respondent with a Notice of Specific Charges until approximately four months after it initiated disciplinary action against him, that the Notice of Specific charges does not contain the name of any of the students with whom the Respondent is alleged to have engaged in misconduct, that the Notice of Specific Charges did not mention any specific date on which misconduct allegedly occurred or any specific place at which misconduct allegedly occurred, that the petitioner was seeking to call witnesses at hearing whose names were not mentioned in any of the discovery or investigative materials to testify about matters that were not specifically alleged in the Notice of Specific Charges. In cases like this in which an employee is charged with serious misconduct of a morally reprehensible nature, the employee is entitled, upon request, to timely and complete information regarding the nature of the charges against him and the nature of the evidence the employer intends to offer in support of those charges. The need for such information is greater in a case like this than it is in the ordinary employment

termination proceeding, because in a case of this nature the employee is seeking to preserve not only his employment, but to also preserve his good name in the community.

3/ Several other exhibits offered by the Petitioner were either rejected or withdrawn.

4/ On February 3, 1994, the Petitioner filed a document titled Petitioner's Proffer of Witnesses' Testimony. The document lists the names of six witnesses the Petitioner wished to call and summarizes the testimony the Petitioner expects would have been given by each witness. Noticeably absent from the summary is any specific assertion that any of the matters any of the proposed witnesses would have testified about occurred during the period of time encompassed by the allegations in the Notice of Specific Charges.

5/ The Respondent Withdrew three other exhibits that had been marked for identification.

6/ Although the Respondent did not testify at the formal hearing, the record contains his sworn denials of any misconduct and his sworn responses to the allegations in the form of his answers to interrogatories.

7/ At the conclusion of the formal hearing in this case the Hearing Officer was convinced, and after protracted and thorough review of the evidence continues to be convinced, that the majority of the testimony presented by the student witnesses was a morass of vague uncertainty tainted by several instances of unmitigated mendacity. Such testimony is simply an insufficient basis upon which to make findings of fact. It is not reliable, it is not persuasive, and it is not substantial because it is not the type of evidence that a reasonable mind would accept as adequate to support a conclusion.

8/ The evidence is sufficient to cause a reasonable person to suspect that the Respondent may have engaged in some inappropriate conduct with his students, but, as noted in Laney v. Board of Public Instruction, 153, Fla. 728, 15 So.2d 748 (1943), suspicions are an insufficient basis for fact finding.

APPENDIX

The following are the specific rulings on all proposed findings of fact submitted by all parties.

Findings submitted by Petitioner:

Paragraphs 1, 2, and 3: Accepted in substance.

Paragraph 4: Rejected as not being supported by persuasive competent substantial evidence. Although there was testimony by the student witness T. F. that was substantially to the effect proposed in this paragraph, the witness T.

F. was not a credible witness and much of her testimony has been disregarded as not being worthy of belief. Among other things, much of her testimony was vague, uncertain, and inconsistent. As with the testimony of the other student witnesses, it is suspected that at least part of the testimony of the witness T.

F. was fabricated in advance in collaboration with one or more of the other student witnesses. As a final matter, the Hearing Officer has no confidence in the ability of the witness T. F. to accurately recall and relate the dates on which events occurred. In this case dates are critical because the witness T.

1. was a student in the Respondent's class for approximately three years, but the Respondent is charged with misconduct during only one specific school year.

   Paragraph 5: Rejected for the reasons stated in the immediately preceding paragraph, as well as for the following additional reasons. The witness T. F. testified that the conduct described in this paragraph occurred during the 1991-

   92 school year. (See transcript, pages 89, 124-25.) The Respondent has not been charged with any misconduct during that time period.

   Paragraph 6: Rejected for the reasons stated in the discussion, above, regarding Paragraph 4, as well as for the following additional reasons. Any such testimony is irrelevant because the witness T. F. was unable to recall in which year those comments were supposedly made. (See transcript, page 143-44.)

   Paragraph 7: Rejected for the reasons stated in the discussion, above, regarding Paragraph 4, as well as for the following additional reasons. The conduct described in this paragraph is not alleged in the Notice of Specific Charges and, therefore, even if proved would be irrelevant. Based on the testimony of the student witness T. F., the most that can be said about the dates on which the conduct described in this paragraph occurred is that it was either during the 1991-92 school year or at some time about which the witness is either confused or uncertain. Absent reliable testimony about when events supposedly took place it is not possible to find that they took place during the time period relevant to the charges in this case.

   Paragraph 8: Rejected for the reasons stated in the discussion, above, regarding Paragraph 4, as well as for the following additional reasons. The conduct described in this paragraph is irrelevant because it is not charged in the Notice of Specific Charges.

   Paragraph 9: Rejected for the reasons stated in the discussion, above, regarding Paragraph 4, as well as for the following additional reasons. The conduct described in this paragraph is irrelevant because it is not charged in the Notice of Specific Charges.

   Paragraph 10: Rejected for several reasons, the first of which is that the findings proposed here are irrelevant because they do not concern anything charged in the Notice of Specific Charges. The findings proposed in this paragraph are also rejected as not being fully supported by persuasive competent substantial evidence. The witness was only guessing that the Respondent was inviting her to go off campus and was only guessing as to what the Respondent's purposes might have been. Guesses are inadequate foundations for fact-finding. Further, the witness was uncertain as to when she believed the Respondent had made the "jello" comment. On a more general note, the witness S. G. was not a credible witness and much of her testimony has been disregarded as not being worthy of belief. Among other things, much of her testimony was vague, uncertain, and inconsistent. As with the testimony of the other student witnesses, it is suspected that at least part of the testimony of the witness S.

2. was fabricated in advance in collaboration with one or more of the other student witnesses.

Paragraph 11: Rejected for several reasons, the first of which is that the findings proposed here are irrelevant because they do not concern anything charged in the Notice of Specific Charges. The findings proposed in this paragraph are also rejected as not being fully supported by persuasive competent substantial evidence.

Paragraph 12: Accepted in substance.

Paragraph 13: Rejected as not being supported by persuasive substantial evidence. Although there was testimony by the student witness I. R. that was substantially to the effect proposed in this paragraph, the witness I. R. was not a credible witness and much of her testimony has been disregarded as not being worthy of belief. The reasons for this evaluation of the testimony of the witness I. R. are essentially the same as those described in Paragraph 4 regarding the witness T. F. Further, the witness I. R. appeared to be suffering from emotional disturbances and also appeared to be subject to at least occasional delusional ideation.

Paragraph 14: Rejected for the reasons stated in the immediately preceding paragraph, as well as for the following additional reasons. The facts proposed in this paragraph are irrelevant because they are not charged in the Notice of Specific Charges.

Paragraph 15: Rejected for the reasons stated in the discussion, above, regarding Paragraph 13, as well as for the following additional reasons. The facts proposed in this paragraph are irrelevant because they are not charged in the Notice of Specific Charges.

Paragraph 16: First three sentences rejected as subordinate and unnecessary details or as irrelevant to the issues in this case. Last sentence rejected as a conclusion that is not warranted by the evidence.

Paragraphs 17 and 18: Rejected as not being supported by persuasive substantial evidence. Although there was testimony by the student witness E. P. that was generally to the effect proposed in this paragraph, the witness E. P. was not a credible witness and much of her testimony has been disregarded as not being worthy of belief. The reasons for this evaluation of the testimony of the witness E. P. are essentially the same as those described in Paragraph 4 regarding the witness T. F. Further, of all of the student witnesses, the witness E. P. seemed to have the least regard for the obligation of a witness to tell "the truth, the whole truth, and nothing but the truth." The witness E. P. was especially imprecise and inconsistent when attempting to describe details and seemed to have no reluctance to invent answers.

Paragraphs 19 and 20: Rejected for the reasons stated in the immediately preceding paragraph, as well as for the following additional reasons. The facts proposed in these two paragraphs are irrelevant because they are not charged in the Notice of Specific Charges.

Paragraph 21: Rejected for the reasons stated in the discussion, above, regarding Paragraphs 17 and 18.

Paragraph 22: Rejected for the reasons stated in the discussion, above, regarding Paragraphs 17 and 18, as well as for the following additional reasons. The facts proposed in this paragraph are irrelevant because they are not charged in the Notice of Specific Charges. Further, the testimony of the witness E. P. on this subject was vague, ambiguous, and inconsistent; she never stated where the Respondent allegedly touched students in connection with the adjustment of the "Swiss seats."

Paragraph 23: Rejected as subordinate and unnecessary details and as irrelevant to the issues in this case.

Paragraph 24: Rejected as not being supported by persuasive substantial evidence. Although there was testimony by the student witness B. V. that was generally to the effect proposed in this paragraph, the witness B. V. was not a credible witness and much of his testimony has been disregarded as not being worthy of belief. The reasons for this evaluation of the testimony of the witness B. V. are essentially the same as those described in Paragraph 4 regarding the witness T. F.

Paragraph 25: Rejected for the reasons stated in the immediately preceding paragraph, as well as for the following additional reasons. The vast majority of the proposed facts in Paragraph 25 are based solely on hearsay evidence that would not be admissible over objection in a civil action.

Paragraphs 26 and 27: Rejected as subordinate and unnecessary details and as irrelevant to the issues in this case, because none of the matters discussed here are alleged in the Notice of Specific Charges. Also rejected as not supported by persuasive competent substantial evidence because, as mentioned above, the witness B. V. was not a credible witness.

Paragraph 28: The first sentence of this paragraph is rejected as not supported by persuasive competent substantial evidence. B. V.'s testimony on this point is simply too vague and imprecise to be persuasive and, in any event, the greater weight of the evidence is otherwise. The second sentence of this paragraph is rejected as irrelevant in view of the fact that the evidence in this case is insufficient to establish any of the misconduct alleged in the Notice of Specific Charges.

Paragraph 29: Accepted in substance.

Paragraph 30: Rejected because the opinions of Mr. Woodson are based on improper or incorrect considerations. (Mr. Woodson believes that the allegations against the Respondent are enough to render him ineffective, even if the allegations are found to be unsubstantiated. See transcript, page 42.)

Findings submitted by Respondent:

Paragraph 1: Accepted in substance, with exception of last sentence. Last sentence is rejected as constituting a conclusion of law.

Paragraph 2: Accepted in substance.

Paragraph 3: First two sentences accepted in substance. The last sentence is rejected as subordinate and unnecessary procedural details.

Paragraphs 4, 5, 6, and 7: Rejected as subordinate and unnecessary procedural details. (These details are all essentially correct and were considerations in certain rulings made at hearing, but they do not need to be repeated as part of the findings of fact.)

Paragraphs 8, 9, 10, 11, 12, 13, 14, and 15: These paragraphs are all, in essence, assertions that certain facts should not be found based on assertions that the evidence is insufficient to support findings of the type described in these paragraphs. The findings of fact in this Recommended Order are consistent with the view of the evidence described in these paragraphs.

Paragraph 16 (including subparagraphs (a) through (h) thereof): This paragraph, and its several subparagraphs, consists entirely of summaries of testimony and arguments about the credibility of testimony. Neither summaries of testimony nor arguments about credibility are properly included in findings of fact. In this regard it is sufficient to note that in the process of preparing the findings of fact, the Hearing Officer carefully considered all of the testimony, including the parts summarized in this paragraph of the Respondent's proposed findings, and carefully considered all of the arguments made here. (It is also noted that the vast majority of the arguments in Paragraph 16 and its subparts are well taken.)

Paragraphs 17, 18, 19, 20, and 21 (including the numerous subparagraphs within each of these paragraphs): The immediately preceding discussion of Paragraph 16 is equally applicable to these paragraphs and their subparagraphs.

COPIES FURNISHED:

James Claude Bovell, Esquire 3211 Ponce de Leon Boulevard Coral Gables, Florida 33134

Roberta Fulton Fox, Esquire Gold and Fox, P.A.

20th Floor, First Union Financial Tower

200 South Biscayne Boulevard Miami, Florida 33131

Octavio J. Visiedo, Superintendent Dade County School Board

1450 Northeast Second Avenue Miami, Florida 33132

Madelyn P. Schere, Esquire Assistant School Board Attorney

School Board Administration Building 1450 Northeast Second Avenue

Miami, Florida 33132

Honorable Douglas L. Jamerson Commissioner of Education

The Capitol

Tallahassee, Florida 32399-0400

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: 93-002723

Orders for Case No: 93-002723