STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK T. BROGAN, )

as Commissioner of Education, )

)

Petitioner, )

)

vs. ) Case No. 97-3845

)

JOSUE NARVAEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a Section 120.57(1) hearing was held in this case on December 22, 1997, by video teleconference at sites in Fort Lauderdale and Tallahassee, Florida, before Stuart M. Lerner, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ron Weaver, Esquire

122 South Calhoun Street Post Office Box 10865 Tallahassee, Florida 32301

For Respondent: Mr. Josue Narvaez, pro se

12155 Regal Court North Wellington, Florida 33414

STATEMENT OF THE ISSUES

1. Whether Respondent committed the violations alleged in the First Amended Administrative Complaint.

2. If so, what punitive action should be taken against him. PRELIMINARY STATEMENT

On May 7, 1997, Petitioner issued an Administrative Complaint against Respondent, a Florida-certified educator, alleging that Respondent had engaged in misconduct warranting the imposition of an appropriate penalty by the Education Practices Commission. Respondent subsequently requested a Section 120.57(1) hearing on the allegations made in the Administrative Complaint. On August 21, 1997, the matter was referred to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct the Section 120.57(1) hearing Respondent had requested.

On November 17, 1997, Petitioner filed an unopposed Motion to Amend Administrative Complaint. On December 10, 1997, the undersigned issued an order granting Petitioner's motion. In his order, the undersigned announced that "Petitioner's First Amended Administrative Complaint (a copy of which [had been] served by Petitioner on Respondent on or about October 22, 1997, and [had been] received by the undersigned from Petitioner on December 9, 1997) w[ould] be accepted (in place of the original Administrative Complaint) as the charging instrument setting forth Petitioner's allegations against Respondent in the instant case." Petitioner's First Amended Administrative Complaint reads as follows:

Petitioner, FRANK T. BROGAN, as Commissioner of Education, files this Administrative Complaint against JOSUE NARVAEZ. The Petitioner seeks the appropriate disciplinary sanction of the Respondent's educator's certificate pursuant to Sections 231.262 and

231.28, Florida Statutes, and pursuant to Rule 6B-1.006, Florida Administrative Code, Principles of Professional Conduct for the Education Profession in Florida, said sanctions specifically set forth in Sections 231.262(6) and 231.28(1), Florida Statutes.

The Petitioner alleges: JURISDICTION

1. The Respondent holds Florida Educator's Certificate 472770, covering the area[] of elementary education, which is valid through June 30, 1999.

   
   

2. At all times pertinent hereto, the Respondent was employed as a vocational teacher at Atlantic Vocational Center in the Broward County School District.

   
   

   MATERIAL ALLEGATIONS

   
   

3. On or about January 7, 1993, the Respondent submitted false claims for medical reimbursement to the administrator of the School Board's medical reimbursement account.

   
   

4. The Respondent was directed to act as Foreign Student Advisor by school officials. During the 1994 school year, the Respondent, as Foreign Student Advisor, for his personal gain and advantage, charged foreign students a fee to translate and evaluate their foreign educational credentials (diplomas/certificates).

   
   

5. The Respondent refused to evaluate and validate the prior level of academic achievement of foreign students, absent a written translation into English. Such refusal was contrary to the Respondent's duties as Foreign Student Advisor.

   
   

6. The Respondent advised foreign students that such translations were required for an evaluation and validation. The Respondent's advice to the students was false and deceptive, and the use of such deception was

   instrumental in the Respondent obtaining fees from the students.

   
   

7. On or about March 21, 1995, the Respondent was suspended without pay and dismissal proceedings were initiated. The Respondent requested a formal hearing with the Division of Administrative Hearings. The hearing was held on or about July 19-20, 1995. On or about September 11, 1995, the Hearing Officer issued a Recommended Order recommending that the Respondent be terminated from his employment with the Broward County School District.

   
   

8. On or about December 20, 1995, the Respondent was terminated from his position with the Broward County School District.

STATUTORY VIOLATIONS

COUNT 1: The allegations of misconduct set forth herein are in violation of Section 231.28(1)(f), Florida Statutes, in that the Respondent, upon investigation, has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board.

COUNT 2: The allegations of misconduct set forth herein are in violation of Section 231.28(1)(i), Florida Statutes, in that the Respondent has violated the Principles of Professional Conduct for the Education Profession in Florida prescribed by the State Board of Education rules.

RULE VIOLATIONS

COUNT 1: The allegations of misconduct set forth herein are in violation of Rule 6B- 1.006(3)(h), Florida Administrative Code, in that the Respondent has exploited a relationship with a student for personal gain or advantage.

COUNT 2: The allegations of misconduct set forth herein are in violation of Rule 6B- 1.006(4)(c), Florida Administrative Code, in

that the Respondent has used institutional privileges for personal gain or advantage.

COUNT 3: The allegations of misconduct set forth herein are in violation of Rule 6B- 1.006(5)(a), Florida Administrative Code, in that the Respondent has failed to maintain honesty in all professional dealings.

COUNT 4: The allegations of misconduct set forth herein are in violation of Rule 6B- 1.006(5)(h), Florida Administrative Code, in that the Respondent submitted fraudulent information on a document in connection with his professional activities.

WHEREFORE, the Petitioner recommends that the Education Practices Commission impose an appropriate penalty pursuant to the authority provided in Sections 231.262(6) and 231.28(1), Florida Statutes, which penalty may include a reprimand, probation, restriction of the authorized scope of practice, administrative fine, suspension of the teaching certificate not to exceed three years, permanent revocation of the teaching certificate, or combination thereof, for the reasons set forth herein, and in accordance with Explanation and Election of Rights forms which are attached hereto and made a part hereof by reference.

As noted above, the final hearing in this case was held on December 22, 1997. One witness, Jean Miller, testified at the hearing. Miller testified on behalf of Petitioner. In addition to Miller's testimony, Petitioner offered, and the undersigned received, 14 exhibits (Petitioner's Exhibits 1 through 14) into evidence. Among these exhibits were transcripts of the depositions of Ronald Wright, Respondent; Robert Crawford; Lynne Husted; and Mayra Menendez, which were offered and admitted into evidence, without objection, in lieu of the live testimony of the

deponents.

At the conclusion of the evidentiary portion of the hearing, the undersigned announced on the record that proposed recommended orders had to be filed no later than 30 days from the date of the undersigned's receipt of the transcript of the final hearing.

The undersigned received the hearing transcript on January 12, 1998. Petitioner and Respondent filed their proposed recommended orders on February 3, 1998, and February 11, 1998, respectively. These post-hearing submittals have been carefully considered by the undersigned.

FINDINGS OF FACT

Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made:

Licensure

1. Respondent holds Florida teacher's certificate

   
   

   number 472770, covering the area of Elementary Education. His certificate is valid until June 30, 1999.

   Employment

   
   

2. At all times material to the instant case, Respondent was employed pursuant to professional services contract by the School Board of Broward County (School Board) as a Foreign Student Advisor (initially on a part-time basis and ultimately full-time) at the Atlantic Vocational Technical Center (AVTC). Fees for Translation Services

3. AVTC is an educational unit of the School Board

   providing educational opportunities for residents of Broward County.

4. AVTC has a large population of foreign-speaking students, including those of Haitian and South American origin.

5. The Haitian students, for the most part, speak Creole and the documentation they have reflecting their educational experiences in Haiti is in French.

6. As a general rule, the South American students speak Spanish, and the documentation they have reflecting their educational experiences in their native countries is in Spanish.

7. Respondent is fluent in French and Spanish (as well as in English) and is also able to converse in Creole.

8. In order to properly place the foreign speaking students in AVTC's vocational programs, the students' language skills must be assessed. In addition, their educational background in their native countries, as reflected by the documentation from the institutions they attended, must also be assessed to make sure that the students are qualified for placement in the programs in which they are placed.

9. As the Foreign Student Advisor, Respondent was the "point person" for any foreign speaking student entering AVTC.

   It was Respondent's obligation to counsel and intake the student, to provide needed language assessments, to review the documentation the student possessed reflecting his or her educational background, and to then provide AVTC with a written

   evaluation or statement of the student's educational credentials certifying, where appropriate, that the student "had attained a level of academic education . . . at least equal to that of high school completion in the United States' system of education."

10. Respondent's written job description, which the Director of AVTC, Robert Crawford, reviewed with Respondent on several occasions, made reference, in general terms, to these duties. It read as follows:

    JOSUE NARVAEZ

    FOREIGN STUDENT ADVISOR

    
    

    -Provide for foreign student recruitment, advisement and placement within the guidelines of federal and state laws as well as school board policies

    
    

    -Serve as foreign student liaison for faculty, administration, county-level staff, feeder school personnel and

    community-at-large

    
    

    -Serve as liaison between students and Immigration and Naturalization Services

    
    

    -Offer assistance with curriculum to instructors of foreign student population

    
    

    -Provide tours of campus for ESOL students

    
    

    -Assist with orientation programs, scheduling and registration procedures

    
    

    -Process FAFTF applications

    
    

    -Process Fee Waiver and Deferred Payment forms

    
    

    -Insure that basic skill information is provided to all students within respective programs

    -Assist in coordination of VESOL and Pre-Core programs

    
    

    -Coordinate Refugee and SLIAG programs

    
    

    -Coordinate multi-cultural activities

    
    

    -Provide translation assistance as needed

    
    

    -Work together with ESOL/VESOL Department Head, instructors and aides to offer services to students

    
    

    -Attend faculty, staff and other related meetings to keep abreast of updated regulations, policies and procedures, techniques and information needed to provide adequate services to student population for specific disciplines

    
    

    -Participate in workshops, public relations events, career exploration days, job expos, tours, etc.

    
    

    -Perform all other duties as assigned by Student Service Director/Center Director

    
    

11. Respondent routinely advised students who sought from him an evaluation and certification of their foreign academic credentials, which Respondent in his capacity of Foreign Student Advisor was obligated to provide to them, that he would not provide the service absent a written translation (into English) of their foreign certificates, diplomas or other documentation.

12. Respondent further advised these students that, for a fee, he could provide the translation service, or that they could use the services of an outside translator.

13. In those instances where he (for a fee) provided the service, Respondent routinely did the translations at his home, but he had the written translations notarized by one of the

    registrars at the school during the school day, and he delivered the documents to the students at the school during the school day.

14. For such services, Respondent generally charged from

    
    

    $20.00 to $50.00, depending on the number of documents that were translated.

15. Respondent's refusal to evaluate and validate the prior level of academic achievement of foreign students, absent a written translation into English, was, as he should have known, contrary to his job duties as Foreign Student Advisor.

16. Furthermore, his advice to foreign students that such a written translation was required for an evaluation was false and deceptive. The use of such deception was instrumental in his obtaining fees from students (for his own personal gain and advantage) that were otherwise not required by the school or for an evaluation of the students' educational status.

    
    

    Claims for Medical Expenses Reimbursement

    
    

17. Incident to his employment with the School Board, Respondent participated in the School Board's medical expenses reimbursement account program (Program).

18. The Program gives employees the opportunity to save tax dollars by designating a portion of their anticipated yearly wages (which will not be taxed as income by virtue of such

    designation) for placement in an account from which the employees may seek reimbursement for medical expenses not covered by insurance.

19. The School Board essentially funds an employee's medical expenses reimbursement account as of January 1st of the tax year, and has to recover the funded monies over the course of the year by monthly salary redirection, provided the employee continues to be employed by the School Board.

20. For the 1993 tax year, Respondent elected to participate in the Program at a rate of $100.00 each month for a total of $1,200.00 annually.

21. In accordance with the applicable provisions of the Internal Revenue Code, Respondent's entire $1,200.00 annual commitment, although sheltered at $100.00 each month, was available on January 1st of the tax year to pay non-reimbursed medical expenses.

22. On or about January 7, 1993, Respondent submitted to First Benefits, Inc., which administers the Program for the School Board, a claim for $1,165.00 for eye care services

    
    

    Respondent claimed were rendered by Dr. Jerry Siegel, an optometrist for whom Respondent's wife worked at the time.

23. Attached to the claim were two statements, one reflecting a date of service of January 4, 1993, for Respondent with a total charge of $595.00, and a second reflecting a date of

    service of January 6, 1993, for Respondent's daughter with a total charge of $570.00. The statements were on forms to which Respondent's wife had access as an employee of Dr. Siegel.

24. At $1,165.00, the claim Respondent submitted in January of 1993, was only $35.00 short of his annual participation that year and, if accepted for payment, would have required the School Board to effectively pay Respondent the amount of the claim, with the expectation that such sums would be recovered over the course of the year from Respondent's monthly salary reduction.

25. On January 25, 1993, First Benefits, Inc., denied Respondent's claim for reimbursement predicated on advice from Dr. Siegel that, contrary to the assertions made in the claim and the statements for services appended thereto, "the services in question were not rendered on the dates enclosed."

26. The assertions made in Respondent's claim for reimbursement were fabrications and the statements for services appended thereto were forgeries.

27. Dr. Siegel rendered no services to Respondent on January 4, 1993, nor did he render any services to Respondent's daughter on January 6, 1993.

28. Accordingly, as alleged in the First Amended Administrative Complaint, "Respondent submitted false claims for medical reimbursement to the administrator of the School Board's medical reimbursement account." He submitted these claims with the intent to deceive knowing that these claims were false.

    Termination of Employment

    
    

29. Following investigations of Respondent's fee-charging and fraudulent claim-filing activities, the School Board suspended Respondent and initiated action to terminate his employment.

30. The matter was publicized in local newspapers.

    
    

31. Following a Section 120.57(1) hearing, the School Board took final action to dismiss Respondent.

    CONCLUSIONS OF LAW

    
    

32. The Education Practices Commission (Commission) is statutorily empowered to take punitive action against the holder of a valid or an expired Florida teaching certificate based upon any of the grounds enumerated in Section 231.28(1), Florida Statutes. Such punitive action may include one or more of the following penalties: permanent certificate revocation; certificate revocation, with reinstatement following a period of not more than ten years; certificate suspension for a period of not more than three years; imposition of an administrative fine not to exceed $2,000 for each count or separate offense; restriction of the authorized scope of practice; issuance of a written reprimand; and placement of the teacher on probation for a period of time and subject to such conditions as the Commission may specify. Sections 231.261(8)(b), 231.262(6), and 231.28(1), Florida Statutes.

33. Subsection (1)(f) of Section 231.28, Florida Statutes,

    authorizes the Commission to take punitive action against a teacher who "[h]as been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the school board."1

34. Subsection (1)(i) of Section 231.28, Florida Statutes, authorizes the Commission to take punitive action against a teacher who "[h]as otherwise violated the provisions of law or rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate."

35. Rule 6B-1.006, Florida Administrative Code, contains the "Principles of Professional Conduct for the Education Profession in Florida." Certificate revocation is one of the penalties prescribed in the rule for violation of these principles. Rule 6B-1.006(2), Florida Administrative Code.

36. Subsection (3)(h) of Rule 6B-1.006, Florida Administrative Code, requires that a teacher "not exploit a relationship with a student for personal gain or advantage."

37. Subsection (4)(c) of Rule 6B-1.006, Florida Administrative Code, requires that a teacher "not use institutional privileges for personal gain or advantage."

38. Subsection (5)(a) of Rule 6B-1.006, Florida Administrative Code, requires that a teacher "maintain honesty in all professional dealings."

39. Subsection (5)(h) of Rule 6B-1.006, Florida Administrative Code, requires that a teacher "not submit

    fraudulent information on any document in connection with professional activities." To establish that a violation of subsection (5)(h) has been committed, it must be shown not only that the teacher provided false or misleading information on the document in question, but also that the teacher knowingly did so with the intent to deceive. Cf. Charter Air Center, Inc. v.

    Miller, 348 So. 2d 614, 616 (Fla. 2d DCA 1977)("The elements of fraudulent representation are: a false statement pertaining to a material fact, knowledge that it is false, intent to induce another to act on it, and injury by acting on the statement."); Gentry v. Department of Professional and Occupational Regulations, 293 So. 2d 95, 97 (Fla. 1st DCA 1974)(statutory provision prohibiting licensed physicians from "[m]aking misleading, deceptive and untrue representations in the practice of medicine" held not to apply to "representations which are honestly made but happen to be untrue. To constitute a violation, . . . the legislature intended that the misleading, deceptive and untrue representations must be made willfully (intentionally)."); Naekel v. Department of Transportation, 782

    F. 2d 975, 978 (Fed. Cir. 1986)("[A] a charge of falsification of a government document [in this case, an employment application] requires proof not only that an answer is wrong, but also that the wrong answer was given with intent to deceive or mislead the agency.").

40. The foregoing statutory and rule provisions are "in

    effect, . . . penal statute[s and rules] . . . . This being true the[y] must be strictly construed and no conduct is to be regarded as included within [them] that is not reasonably proscribed by [them]. Furthermore, if there are any ambiguities included such must be construed in favor of the . . . licensee." Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

41. Punitive action may be taken against a teacher based upon the foregoing statutory and rule provisions only if the grounds for such action are established by clear and convincing evidence. See Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington,

    510 So. 2d 292 (Fla. 1987); McKinney v. Castor, 667 So. 2d 387,

    
    

    388 (Fla. 1st DCA 1995); Tenbroeck v. Castor, 640 So. 2d 164, 167 (Fla. 1st DCA 1994); Nair v. Department of Business and Professional Regulation, 654 So. 2d 205, 207 (Fla. 1st DCA 1995); Pic N' Save v. Department of Business Regulation, 601 So. 2d 245 (Fla. 1st DCA 1992); Munch v. Department of Professional Regulation, 592 So. 2d 1136 (Fla. 1st DCA 1992); Newberry v. Florida Department of Law Enforcement, 585 So. 2d 500 (Fla. 3d DCA 1991).

42. "'[C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in

    confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.'" In re Davey, 645 So. 2d

    
    

    398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

43. Furthermore, the grounds proven must be those specifically alleged in the administrative complaint. See Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Kinney v. Department of State, 501 So. 2d 129, 133 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So. 2d 842, 844 (Fla. 2d DCA 1984).

44. In the instant case, the Administrative Complaint issued against Respondent, as amended, alleges that, while employed as a Foreign Student Advisor at AVTC, he engaged in misconduct in violation of Section 231.28(1)(f), Florida Statutes, and in violation of Rules 6B-1.006(3)(h), 6B- 1.006(4)(c), 6B-1.006(5)(a), and 6B-1.006(5)(h), Florida Administrative Code, and therefore also Section 231.28(1)(i), Florida Statutes, when, in January of 1993, he "submitted false claims for medical reimbursement to the administrator of the School Board's medical reimbursement account" and, "[d]uring the 1994 school year," he "false[ly] and deceptive[ly]" told foreign students at the school that they needed a written English

    translation of their foreign academic credentials and then charged these students a fee to provide them with such a written translation.

45. The record evidence clearly and convincingly establishes that Respondent committed these statutory and rule violations, as alleged in Petitioner's First Amended Administrative Complaint.

46. Accordingly, the Commission is authorized to take punitive action against Respondent pursuant to Section 231.28(1), Florida Statutes.

47. In determining what punitive action the Commission should take against Respondent for committing these violations, it is necessary to consult Rule 6B-11.007, Florida Administrative Code, which contains the disciplinary guidelines adopted by the Commission. Cf. Williams v. Department of Transportation,

    531 So. 2d 994, 996 (Fla. 1st DCA 1988)(agency required to comply with its disciplinary guidelines in taking disciplinary action against its employees).

48. Having carefully considered the facts of the instant case in light of the provisions of Rule 6B-11.007, Florida Administrative Code, the undersigned concludes that the Commission should punish Respondent for having committed the violations of subsection (1) of Section 231.28, Florida Statutes, alleged in the First Amended Administrative Complaint by revoking his teaching certificate and denying him the right to teach for a

period of six years, after which he may apply for a new certificate in accordance with the provisions of Section 231.28(4)(b), Florida Statutes, which provides as follows:

A person whose teaching certificate has been revoked under this section may apply for a new certificate at the expiration of that period of ineligibility fixed by the Education Practices Commission by making application therefor and by meeting the certification requirements of the state board current at the time of the application for the new certificate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Commission enter a final order finding Respondent guilty of the violations alleged in the First Amended Administrative Complaint and punishing him for committing these violations by revoking his license and denying him the right to teach for a period of six years, after which he may apply for a new certificate in accordance with the provisions of Section 231.28(4)(b), Florida Statutes.

DONE AND ENTERED this 17th day of February, 1998, in Tallahassee, Leon County, Florida.

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1998.

ENDNOTE

1 A teacher may be found guilty of violating subsection (1)(f) of Section 231.28, Florida Statutes, even in the absence of "specific evidence" of impairment of the teacher's "effectiveness as an employee," where the "personal conduct" in which the teacher engaged is of such nature that it "must have impaired [the teacher's] effectiveness." Summers v. School Board of Marion County, 666 So. 2d 175 (Fla. 5th DCA 1995); but see McNeill v. Pinellas County School Board, 678 So. 2d 476, 478 (Fla. 2d DCA 1996).

COPIES FURNISHED:

Ron Weaver, Esquire

122 South Calhoun Street Post Office Box 10865 Tallahassee, Florida 32301

Mr. Josue Narvaez, pro se 12155 Regal Court North Wellington, Florida 33414

Kathleen M. Richards, Executive Director Education Practices Commission

224-E Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Jerry W. Whitmore, Program Director Professional Practices Services Department of Education

224-E Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

1 A teacher may be found guilty of violating subsection (1)(f) of Section 231.28, Florida Statutes, even in the absence of "specific evidence" of impairment of the teacher's "effectiveness as an employee," where the "personal conduct" in which the teacher engaged is of such nature that it "must have impaired [the teacher's] effectiveness." Summers v. School Board of Marion County, 666 So. 2d 175 (Fla. 5th DCA 1995); but see McNeill v. Pinellas County School Board, 678 So. 2d 476, 478 (Fla. 2d DCA 1996).

Docket for Case No: 97-003845

Orders for Case No: 97-003845